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Convention between the United States and
June 16, 1852, Art. I., 10 U.S. Stat. at L., (Tr.,)100. (Extended to the))
North German (Feb. 22, 1868, “ III., 15 Id., (Tr.,) 116.
Jan. 30, 1857, “ I., 11 Id., 714. On the other band, the later treaties-for example, the convention between the United States and Italy, March 23, 1868, (15 U. 8. Stat. at L., (Tr.,) 131, Art. V.,) require a copy of the foreign warrant, or of the de. positions upon which it was granted, to be forwarded, in the first instance, to the executive authority: the executive then to issue a warrant for the arrest of the accused, and his examination before the proper judicial authority.
The provisions presented in this draft embrace both methods.
In one case at least, it has been stipulated that the government of a nation might, before producing documentary evidence, demand the immediate and provisional arrest of the accused or convict ; but compliance with the demand was left optional with the government on which the de. mand was made. When such provisional arrest was granted, the documentary evidence was required to be transmitted within two months, without which the person arrested was entitled to his discharge. Convention between France and The Grand Duchy Lang. 7. 1858. 7 De Clercq, 444, Art. IV.
of Saxe Weimar, ja This provision seems, however, too dangerous to be inserted in an in
Arrest in anticipation of requisition.
217. Upon presumptive evidence of an offense, within the provisions of this Section, the local tribunals, which would have cognizance of it, if committed within their jurisdiction, may arrest the person accused, and detain him for a reasonable time, to afford the foreign govern. ment opportunity to make requisition for his surrender. But the evidence must be sufficient to commit for trial, if the offense were committed within the local jurisdiction; and if no requisition be made within one month thereafter, the accused will be entitled to his discharge.
This is in substance the rule laid down by Chancellor KENT, on the review of continental and English authorities, in the Case of Washburn, 4 Johnson's New York Chancery Rep., 106.
To the same effect are Mure v. Kaye, 4 Taunton's Rep., 34; Matter of British Prisoners, 1 Woodbury & Minot's U. S. Circuit Ct. Rep., 66.
These authorities, however, are opposed by others.
In the United States v. Davis, 2 Sumner's U. 8. Circ. Ct. Rep., 482, it is said, upon principles of international law, and independent of statute or treaty, that courts of justice are neither bound nor authorized to remand prisoners for trial to a foreign government whose laws they are said to have violated. See, also, 1 Opinions of U. 8. Attorneys-General, p. 510 ; 2 Id., p. 359.
And in the Matter of Henrich, 5 Blatchford's U. 8. Circuit Court Rep., 414; Ex-parte Henrich, 10 Cox's Criminal Cases, 626, it is said, that it should seem indispensable that a demand for the surrender of the fugi. tive should be first made upon the executive authorities of the government, and a mandate of the President obtained, before the judiciary is called upon to act. That at all events, this would be the better practice, and one in keeping with the dignity to be observed between nations in such delicate and important transactions.
That an executive order of surrender to a foreign government is purely a national act, is not open to controversy ; nor can it be doubted that this executive act must be performed through the Secretary of State, by order of the President. But it does not follow that Congress is excluded from vesting authority in judicial magistrates to arrest and commit, preparatory to a surrender. In re Kaine, 14 Howard's U. 8. Sup. Ct. Rep., 103.
The original arrest may be made by the executive, or, if the statute 80 procide, it may also be made by the court or the examining magistrate. Dana's Wheaton, $ 115, note 73.
In the Commonwealth o. Deacon, (10 Sergeant & Rarole's Rep., 125,) it was held, that in the absence of an extradition treaty, no State magistrate, upon a charge by a private person, can cause a fugitive from a foreign country to be arrested for a crime committed in that foreign country, in order to afford an opportunity to the executive of the United States to deliver him up to the government of that country.
See, in this connection, the note to Article 216.
218. Before making the surrender or arrest of an alleged fugitive from justice, the nation from which it is asked may determine for itself, upon a preliminary investigation, whether it is presumptively established that the person charged has committed the offense, as defined by this Code; or, in the case of a convict, that he has wrongfully escaped punishment.
It was held, in the Matter of Metzger, (5 N. Y. Legal Observer, 83 ; see, also, 1 Barbour's New York Rep., 248, and 5 Howard's U. 8. Sup. Ct. Rep. 176,) that the test of what constituted the crime is the law of the coun. try which demands the fugitive, not that of the nation upon which the demand is made. In Dana's Wheaton, (8 117, note 75, p. 186,) it is said, that the Extradition Acts are restricted to the cases which have the essen. tial and substantial elements of the offenses specified, and according to the law of both countries ; and the mere fact that an act which, according to the general law of either country, has not the character of a particular offense, is treated as such by the law of one of them, does not bring a case within the treaty. We must assure that the terms employed are used in a sense common to both parties to the treaty.
Compare Re Windsor,(6 Best & Smith's Q. B. Rep., 522,) where it was held that the enumeration of crimes in the extradition treaty refers to such acts as amount to any of those offenses, according to the law of England and the general law of the United States, and does not comprise offenses which are only such by the local legislation of some particular State of the American Union ; and Re Tivnan, (5 Best & Smith's Q. B. Rep., 696,) where piracy was taken as understood according to the law of the United States rather than the law of nations.
· Rules for conducting investigation.
219. The proceedings for the arrest of an alleged fu. gitive from justice, and the judicial investigation of the charge, must be conducted according to the rules established for similar preliminary proceedings, before the same courts or magistrates, in the case of a person charged with the commission of a like offense within the country.
Clarke, (Extradition, p. 99,) states the rules for the conduct of the investigation as follows, in the case of a demand in extradition upon Great Britain :
“The prisoner being apprehended and brought before a magistrate, three things are necessary: 1. The identity of the prisoner must be proved; 2. Such evidence of criminality must be given as, according to the laws of the place where he has been found, would justify his apprehension and commitment for trial if the crime or offense had been there committed. Some evidence upon this point is necessary in the first instànce, but the magistrate has the usual powers of remand, if it be not sufficient for commitment; 3. The magistrate must be satisfied, either upon the facts of the case or by the evidence of a foreign lawyer, that the offense charged comes within the definition of the crime contained in the treaty. This evidence must be taken in the prisoner's presence, in the usual way. The evidence of criminality, however, may consist, either wholly or in part, of copies of depositions taken by a judge or competent magistrate in the country claiming the fugitive.”
“If, on examination, the magistrate finds that the acts are not disputed, but that a justification is established antecedent to, and independent of, the acts themselves, he must discharge the prisoner." * Id., 105.
In order to enable a justice of the peace to issue his warrant under the statute, 6 and 7 Vict., c. 76, § 1, for the apprehension and committal for trial of an accused person, it need not appear that there was an original warrant for his apprehension in the United States, or depositions taken against him there ; and the warrant of such justice of the peace need not
allege that the evidence before him was taken under oath. In re Tivnan, 5 Best & Smith's Q.* B. Rep., 645.
A French warrant for the apprehension of an accused person is neces. sary in Great Britain in order to procure his extradition under 6 and ñ Vict., c. 76 ; but it need not be signed by a judge or competent magistrate, and need only be authenticated as made in such manner as would justify the arrest of the accused person in France.
A person condemned par contumace in France continues to be an accused person, liable to be delivered over under the Extradition Acts. In re Coppin, 2 Law Rep., (Chancery Appeals,) 47.
In the United States it is held, that the application for an order of arrest must conform to the requirements of the domestic law. Matter of Farez, 7 Abbott's Practice Reports, New Series, (New York,) 84. Also, that the question of remanding the prisoner for further examination, and the time of remanding, and the determination of the magistrate as to whether the crime is proved, and the case is within the treaty, are matters of purely judicial determination, not subject to appeal, nor to executive interference, or revision. Matter of Metzger, 5 Howard's U. S. Sup. Ct. Rep., 176; 6 Opinions of U. S. Attorneys-General, p. 91; 10 Id., 501.
The attorneys for the government in the United States are not charged with any duties in reference to the judicial inquiry instituted, before ordering an extradition. The minister or agent of the government making the requisition employs such counsel as he pleases, if any are necessary, 9 Opinions of the U. 8. Attorneys-General, p. 246.
220. Evidence of the commission of a crime by the accused may consist, either wholly or in part, of original depositions, properly authenticated, conformably to the laws of the country where they were made, so as to entitle them to be received for similar purposes by the tribunals or magistrates of such country ; or, of exemplified copies, certified by the foreign court or magistrate, or proved, by oath, to be true copies of original depositions.
Such depositions or copies must be certified, as provided in Part VI. of this Code, entitled ADMINISTRATION OF JUSTICE, or by the minister of justice or chief
gecutive officer of the demanding nation, or by the principal diplomatic or consular office of the nation upon which the demand is made, resident in such foreigu country: to be legally authenticated according to the laws of the demanding nation, in the manner
which would entitle them to be received in evidence, for similar purposes, by its tribunals or magistrates.
Act of Congress of August 12, 1848, § 2, 9 U. 8. Stat. at L., 302 ; Act of Congress of June 22, 1860, § 1, 12 U. 8. Stat at L., 84; 10 Opinions of U. S. Attorneys-General, p. 501 ; Matter of Metzger, 5 New York Legal Observer, 83; In re Coppin, 2 Laro Rep., (Chancery Appeals,) 47; Correspondence of British and French Governments, Accounts and Papers, 1866, vol. LXXVI., (38.)
The complaint upon which the warrant of arrest is asked should set forth clearly, but briefly, the substance of the offense charged, so that the court can see that some one of the crimes enumerated in the treaty is alleged to have been committed. This complaint need not be drawn with the formal precision and nicety of an indictment for final trial, but should set forth the substance and material features of the offense. In re Henrich, 5 Blatchford's U. 8. Circuit Ct. Rep., 414; Er-parte Henrich, 10 Cor's Criminal Cases, 626; 2 Abbott's National Digest, 509, note; Matter of Farez, 7 Abbott's Pr. Rep. N. 8., 84.
The affidavit which charges the crime is defective if the witness only swears to his belief. ... Suspicion does not warrant a commitment, and all legal intendments are to avail the prisoner. The return is to be most strictly construed in favor of liberty. Ib.
The court can regard only the facts set forth in the affidavit as having a legal existence. Any misrecitals and overstatements in the requisi. tion and warrant, which are not supported by the affidavit, cannot be received as evidence to deprive a person of his liberty, and transport him to a foreign State for trial. Ex-parte Smith, 3 McLean's U. S. Circuit Court Rep., 121.
The affidavit upon which a warrant of arrest is to issue for the extradition of a fugitive, must state distinctly that the fugitive has committed a crime, and that he committed it in the State from which the requisition comes; for no foreign State can entertain such a jurisdiction of crimes committed in another State as to entitle it to make requisition for the criminal on a third State. Ex-parte Smith, 3 McLean's U. 8. Circuit Court Rep., 121.
Each piece of documentary evidence offered by the agents of the for. eign government in support of the charge of criminality, should be accompanied by a certificate of the principal diplomatic or consular officer of the United States resident in the foreign country from which the fugi. tive shall have escaped, stating clearly that it is properly and legally au. thenticated, so as to entitle it to be received in evidence in support of the game criminal charge, by the tribunals of such foreign country. In re Henrich, 5 Blatchford's U. 8. Circuit Ct. Rep., 414 ; 2 Abbott's Nat. Dig., 509, note; 10 Cox's Criminal Cases, 626.
The parties seeking the extradition of the fugitive should be required by the commission to furnish an accurate translation of every document offered in evidence which is in a foreign language, accompanied by an affi.