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Javit of the translator, made before him or some other United States commissioner or judge, that the same is correct. Ib.
Public officers should furnish authenticated copies of documents in their custody, when demanded, and should assist in bringing forward testimony, according to the duties of their several stations; and indivi. duals should not refuse to give testimony. 1 Opinions of U. 8. AttorneysGeneral, p. 82.
The commissioner before whom an alleged fugitive is brought for hear. ing should keep a record of all the oral evidence taken before him, taken in narrative form, and not by question and answer, together with the objections made to the admissibility of any portion of it, or to any part of the documentary evidence, briefly stating the grounds of such objections, but should exclude from the record the arguments and disputes of counsel. In re Henrich, 5 Blatchford's 0.8. Circ. Ct. Rep., 414; 2 Abbott's Nat. Dig., 509, note ; 10 Cox's Criminal Cases, 626.
As to the necessary authentication of depositions under the English statutes to carry into effect the extradition treaties with France, see Re Coppin, 2 Law Rep., (Chancery App.) 47; and the Correspondence between the French and English Governments on this point, in Accounts and Papers, 1866, vol. LXXVI., (38.) See reviews of this controversy in a paper by Mr. Westlake, in Transactions of National Association for Promotion of Social Science, 1866, p. 144, and in a report by Mr. Picot, Bulletin de la Société de Legis. Comp., Mai, 1869, p. 56.
Necessary proof of guilt.
221. The extradition of an alleged fugitive from justice, under this Section, can be made only when the fact of his commission of the offense is so far established that the laws of the country making the extradition would justify apprehension and commitment for trial, if the crime had been there committed.
This provision is contained in nearly all the American treaties. Mere suspicion is no ground for a requisition of a fugitive from a foreign nation. The law of nations requires that evidence, clear and positive, shall be furnished. 1 Opinions of U. S. Attorneys-General, p. 509.
The proof should be in all cases not only competent, but full and satisfactory, that the offense has been committed by the fugitive in the foreign jurisdiction ; sufficiently so to warrant a conviction, in the judgment of the magistrate, of the offense with which he is charged, if sitting upon the final trial and hearing of the case. No magistrate should order a surrender short of such proof. El-parte Kaine, 3 Blatchford's U. 8. Circ. Ct. Rep., 1.
A letter from the foreign minister resident here, asking for the preliminary process for extradition of an alleged fugitive criminal, accompanied by a warrant of arrest of the accused, purporting to be issued on due inquiry and evidence, by competent judicial authority in the foreign nation and sufficiently authenticated by the minister's certificate, would not, if presented to an examining magistrate in the United States, be alone suffi. cient to authorize him to certify the criminality of the party charged, on which to found his actual extradition ; for such evidence would not justify his commitment by the local law where the examination takes place. 6 Opinions of U. S. Attorneys-General, p. 217.
To authorize the arrest and removal of a fugitive from justice to the State having jurisdiction of the crime, it must distinctly appear, from the affidavits before the magistrate upon which the requisition was based, that the supposed criminal committed the crime in the State from which the requisition proceeds. Ex-parte Smith, 3 McLean's U. S. Circ. Ct. Rep., 121.
Whether a defense may be interposed is a question which has been raised, but it seems better tlrat the extradition should be made on the accusation, properly supported, leaving the case to be tried abroad. See, however, Letter of Mr. Lawrence, in Trans, of Nat. Asso. for Prom. Social Science, 1866, p. 156.
Evidence in case of convicted criminals.
222. In case sentence or judgment of guilt has been pronounced in the country making the requisition, surrender shall not be obligatory, except on presentation to the authorities of the nation on which the requisition is made, of the original sentence or judgment establishing the guilt of the accused, properly authenticated, or of an exemplified copy thereof, as prescribed in article 220.
This article is suggested by the provisions of the convention between the United States and Italy,
Mar. 23, 1868, Art. V., 15 U. 8. Stat. at L., (Tr.,) 131. King of Sweden ) v. and Norway, MA
Mar. 21, 1860, “ I., 12 Id., 1126.
Inquiry as to real motive of demand.
223. A nation upon which a demand for extradition is made, under this Section, may protect its right to give asylum, by looking behind the mere formal proofs presented in support of the demand, to see that it is not made for a purpose to which this Section does not apply; and, if satisfied that such is the case, may refuse the demand.
Dana's Wheaton, $ 115, note 73, p. 184.
ister of the foreign power that the fugitive is wanted for trial for the offense charged in the depositions used against him, and no other.
Mr. Rathbone suggests that security should be given that the prisoner should have a public trial within a certain reasonable time, and that no. tice be sent to the representative abroad of the county surrendering the prisoner, that he may satisfy himself that these provisions of the treaty are carried out. Transactions of Nat. A880. for Prom. Social Science, 1866, p. 144.
224. In case two or more nations claim a person, upon a charge of violating a provision of this Code, the nation within which the offense was committed has the prior right, unless proceedings upon the charge have already been commenced by the other nation.
Surrender of those under arrest for local offenses may be deferred.
225. The surrender of a person claimed under this Section, who has been previously arrested for the commission of an offense against the laws of the country where he is found, or who has been there convicted of such an offense, may be deferred until he shall have been acquitted or punished therefor.
This provision is founded upon the convention between the United States and Italy,
Mar. 23, 1868, Art. IV., 15 U. 8. Stat. at L. (Tr.,) 130. Prussia,
June 16, 1852, “ IV., 10 Id., (Tr.,) 101.
North German Feb. 22, 1868, “ III., 15 Id., (Tr.,) 116.
eden Mar. 21, 1860, “ VI., 12 Id., 1126.
Sept. 12, 1853, Art. IV., 10 U. 8. Stat, at L.,(Tr..)176. Convention between France and The Grand Duchy Aug. 7. 1858, Art. V., 7 De Clercq, 444.
of Saxe Weimar, s aus Surrender, notwithstanding civil arrest.
226. If the person claimed is under arrest in the country where he is found, on account of civil obligations, his surrender may be made notwithstanding, but upon condition that the right of the person concerned,
to pursue his remedy before the competent tribunals, is preserved. Convention between France and . The Grand Duchy! Ang 7. 1958. Art. V., 7 De Clercq, 444. of Saxe Weimar, }
227. A nation npon which a demand for extradition is made under this Section, may impose conditions in reference to the treatment of the person surrendered. Bluntschli, (Dr. Int. Cod.,) & 401. Member of a third nation.
228. If the person whose surrender is demanded be a member of a third nation, which is a party to this Code, the surrender may be deferred until his nation has been informed of the proceeding, and invited to state objections, if any, to the extradition.
In such event, if a case for extradition be established, the nation on which the demand is made may deliver the person accused either to his own nation or to that making the demand. Convention between France and The Grand Duchy Lu. of Saxe Weimar, aug.
Aug. 7, 1858, Art. VII., 7 De Clercq, 444. As to the obligation of a nation to surrender its own members, see note 5 to Article 215.
Surrender, by whom made.
229. Except as provided in articles 230 and 231, a surrender is to be made only by authority of the proper executive officer of the nation upon which the demand is made.
This provision is usual in the American treaties. By the British and American systems of extradition, the judicial inquiry and determination of the fact of culpability is interposed as a condition to the surrender, but the judicial magistrate is not vested with power to make the surrender. Dana's Wheaton, $ 115, pote 73.
The question whether the casus frederis has arisen, or whether the compact will be executed, is a political question, to be decided by the Presi. dent, and the courts have no power to direct or contravene his decision Matter of Metzger, 5 New York Legal Observer, 83.
Surrender in case of offenses committed on the frontier.
230. In the case of persons found in a frontier State or Territory of one nation, lying along the boundary between it and a contiguous nation, the surrender demanded by such contiguous nation, or its frontier State or Territory, may be made either as provided in the last article, or by the chief civil authority of the frontier State or Territory in which the person is found, or by such chief civil or judical authority of the district or country bordering on that frontier, as may for this purpose be duly authorized by the civil authority of such frontier State or Territory ; or, when from any cause the civil authority of such State or Territory is suspended, by the chief military officer in command of such State or Territory.
Ste Article 212.
Surrender by colonial governinent.
231. In the case of a person found within the territorial jurisdiction of a colonial government, the surrender may be made either as provided in article 229, or by the Governor or executive officer of the colony.
Such officer may either make the surrender demanded of him, or may refer the question to the government of the nation to which he belongs.
See Article 213, and note.
Things in prisoner's possession.
232. All articles in the possession of the prisoner at the time of his arrest, and taken with him, must be delivered up on making the surrender, including not only articles stolen, but all those which can serve as evidence of guilt. Convention between France and The Grand Duchy ! Anca 1858 of Saxe Weimar. ( Aug 7, 1858, Art. III., 7 De Clerca. 444.