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Statement of the Case.

of section 5440 of the Revised Statutes; and the other was against him alone for knowingly attempting to enter certain Japanese silks upon payment of less than the amount of legal duty thereon, in violation of section 5444, Revised Statutes.

In January, 1904, he, in company with one of the others named in the indictment (the other having fled the jurisdiction), was tried in the Circuit Court of the United States for the Southern District of New York upon the indictment charging them with conspiracy. He was convicted and sentenced to imprisonment in the state prison at Sing Sing, N. Y., for two years.

He appealed to the Circuit Court of Appeals for the Second Circuit, where the conviction was affirmed, and thereafter an application was made in his behalf to this court for a certiorari to review the judgment of conviction, which application was denied in January, 1906.

After his trial and conviction, and pending a review of the judgment, the respondent had been enlarged on bail, and after the judgment was affirmed in the Circuit Court of Appeals and a certiorari from this court had been denied, he was, on the nineteenth of January, 1906, duly called in the Circuit Court to submit himself to sentence, but did not appear, and his default was entered.

A few days subsequently he was found in the Dominion of Canada. This Government then instituted extradition proceedings in Montreal to procure his rendition upon the judgment of conviction of conspiracy to defraud the United States, and claimed it was an extraditable crime under the fourth subdivision of article I of the treaty or "extradition convention" of 1889, between the United States and Great Britain. That subdivision reads as follows:

"4. Fraud by a bailee, banker, agent, factor, trustee or director or member or officer of any company made criminal by the laws of both countries."

The respondent was held for extradition by the Canadian

Argument for Appellant.

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commissioner, but, on writ of habeas corpus, the Court of King's Bench held that the conspiracy to defraud the United States, as set forth in the indictment upon which respondent was convicted, was not such a fraud as was provided for in the subdivision of the article of the treaty above referred to. Extradition was therefore refused.

Thereupon the United States secured the rearrest of the respondent on another complaint, charging him with the offenses for which he had been indicted under section 5444 of the Revised Statutes, and for which he had not been tried in New York. The Canadian commissioner held the respondent upon that complaint, and ordered his extradition, and, upon a writ of habeas corpus, the Court of King's Bench affirmed that order; and the respondent was then surrendered to the proper agent of the United States, who at once took him to the State of New York, and, having arrived within the Southern District of that State, the marshal of that district, proceeding under the warrant for imprisonment issued by the Circuit Court upon the conviction of the respondent on the conspiracy indictment, took possession of him and delivered him into the custody of the warden of Sing Sing Prison, there to be imprisoned for two years according to the sentence imposed upon him under the conviction as stated.

The respondent then obtained this writ upon a petition setting forth the above facts, and claimed that his imprisonment was in violation of the third and seventh articles of the extradition treaty between the United States and Great Britain. 26 Stat. 1508. The warden of the prison made return August 7, 1906, that he held the respondent by virtue of the final judgment of the Circuit Court of the United States for the Southern District of New York, rendered on the ninth of March, 1904, as above set forth.

Mr. W. Wickham Smith, with whom The Solicitor General was on the brief, for appellant:

There is nothing in either article III or article VII of the

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Argument for Appellant.

Blaine-Pauncefote Treaty of July 12, 1889, which protects the respondent from imprisonment under a sentence imposed before his flight.

It is entirely clear that the sole purpose of paragraph 1 of article VII was to prevent any claim being interposed on behalf of a fugitive convict that the provisions of the treaties of 1842 and 1889 applied only to untried criminals, and not to those who had been tried and convicted.

The language of article III is plain, unambiguous and unequivocal. It leaves no room for construction. Neither in a contract nor in a statute could these words be stretched so as to include punishment. The word "tried" has a plain meaning, everywhere understood, and as to which there can be no mistake or confusion. It certainly does not imply or include punishment. Until a party has been tried it cannot be determined whether he is to suffer any punishment. He may be acquitted, or after conviction sentence may be suspended, or he may be immediately pardoned, in none of which cases would he suffer any punishment. The object of inserting the word "triable" is obviously to protect the person extradited from being arrested and kept in custody or held in bail awaiting trial. It was obviously intended to give the party extradited a right to raise the question of the illegality of his arrest without having to wait until the prosecuting officer got ready to try him, and compel him to put in his plea for the first time at the beginning of the trial.

The necessity and propriety of adhering to the plain language of treaties has been fully recognized by this court. The Amiable Isabella, 6 Wheat. 1, 71; Society &c. v. New Haven, 8 Wheat. 464, 490; Tucker v. Alexandroff, 183 U. S. 424, 436.

The language of article III of the treaty of 1889, considered in connection with that of article II of the same treaty, repels any inference that it was the true intent and meaning of article III to forbid the punishment of any person extradited under the terms of the treaty for an offense of which he had

been convicted and upon which he had been sentenced before his flight.

In this article there is added to the words "triable or tried" found in the third article the words "or be punished." If these words were found in article III this case would never have arisen.

That the intention of the parties to a treaty must be ascertained by an examination of the entire instrument was held by this court in United States v. Texas, 162 U. S. 1.

The same principle has been repeatedly applied by this court to statutes. Silver v. Ladd, 7 Wall. 219, 227; Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 22; Missouri, Kansas & Texas Railway v. Haber, 169 U. S. 613, 635.

The language of article III of the treaty when compared with that of provisions in other treaties of the United States, adopted both prior and subsequent to that of the treaty in question, plainly shows that the construction contended for by the respondent is untenable. In re Joseph Stupp, 11 Blatchf. 124.

The fact that an application had been made by the United States to the Canadian Government for the extradition of respondent on a charge upon which he had been convicted and sentenced, and that said application had been refused, does not in any way destroy the right of the Circuit Court of the United States to enforce the execution of its sentence after the extradition of respondent on another charge.

Nothing in United States v. Rauscher, 119 U. S. 407, prevents the imprisonment of respondent under the sentence imposed upon him before his flight.

Mr. Terence J. McManus, with whom Mr. W. M. K. Olcott was on the brief, for appellee:

The order appealed from was in complete accord with wellsettled principles of law, with treaty provisions and with the statutes of the United States relating to the subject of extradition.

Almost all of the important authorities on the law of nations have held that, without a treaty stipulation, one government is not under any obligation to surrender a fugitive from justice to another government for trial. Foelix, Droit. Int. Prive, II, § 608; Twiss, Law of Nations, Time of Peace, ed. 1884, § 238; Phillimore, 3d ed., I, 517; Creasy, Int. Law, 202; Lewis, For. Juris. 37; Pomeroy, Int. Law, Woolsey's ed. (1886), 236; Lawrence's Wheat. (1863) 233.

The law of nations embraces no provision for the surrender of persons who are fugitives from the offended laws of one country to the territory of another. It is only by treaty that such surrender can take place. Mr. Rush, Sec. of State, to Mr. Hyde de Neuville, April 9, 1817, MSS. notes to For. Leg. II, 218; Mr. Webster, Sec. of State to Mr. d'Argaiz, June 21, 1842; Webster's Works, VI, 399–405.

Hence, the right to surrender rests, as between two sovereign governments, exclusively upon treaty provisions.

When treaty stipulations have been entered into, the same writers and many others of equal authority hold that when a fugitive has been surrendered to the demanding Government, he shall be tried only for the specific offense for which his surrender was granted, and that in the event of his not being tried for that offense, or having been tried and acquitted thereon, he is entitled to a reasonable time to leave the country before being arrested upon any other charge of crime alleged to have been committed prior to his extradition. 1 Moore on Extradition, p. 255; Billot. Traite de l'Extradition, 308; Field's Int. Code, § 237; Wharton, Conf. of Laws, § 846. And see also Cosgrave v. Whinney, 174 U. S. 63; Ex parte Coy, 32 Fed. Rep. 911; People v. Stout, 81 Hun, 336.

Neither the British "Extradition Act of 1870" nor & 5275, Rev. Stat., has been revoked, abrogated or even modified, by the treaty of July 12, 1889, § VI of which is manifestly an unequivocal ratification of the controlling authority of the existing statutory procedure regulating extradition in both countries.