a refusal or omission to make the surrender would be a violation of that law. If, on the other hand, it be a mere right, and not a complete obligation, the exercise of that right is a pursuance, and not a violation, of the law of nations. Whether a surrender of a criminal, as actually made, was by the proper authority or department of the government making it, is never a question under the law of nations, but wholly under the constitutional or municipal law of that government, distributing powers and duties among its own magistrates and departments.

Whether the executive act under consideration is amenable to censure, as not within the competency of the President under the Constitution, is yet to be considered; but, however this may be, the censure of such executive act, as a violation of the law of nations, (asserted in the resolution before the Judiciary Committee,) is conceived in error and unsupported by the authority of any publicist or of any adjudication.

The second topic of the inquiry is now to engage our attention, and it is well to state how far the preceding views, if correct, have advanced its discussion, and what are the true limits of its further consideration.

It appears, then, that there rests with the United States, as a nation, either an obligation or an authority to make extraditions, whenever the case presented calls for the exercise of the power.

It appears that there is not, and never has been, any treaty stipulations with Spain on the subject of the extradition of criminals. It appears that there is not, and never has been, any national legislation touching the subject of the extradition of criminals, except in connection with treaty stipulations with particular nations; that, consequently, the legislative will has never been expressed as to the mode by which, or the department of the government by which, the actual discharge of the international obligation, if it be such, or exercise of the national authority for the extradition of criminals, is to be performed.

In this predicament of the public and municipal law it will at once be seen that there is room for much diversity of opinion as to the legal consequences, as affecting the authority and duty of government, which flow from it. Accordingly, it will be found that in the discussion and action upon the subject which have arisen, upon the exigencies which presented themselves, various theories have divided the assent of the best instructed and most candid minds. These may all be assigned to one or the other of the following views:

1. That the extradition of criminals, in cases where the law of nations called for its being made, could not be directed or executed by any department of the federal government for want of an act of Congress in the premises.

2. That the several States of the Union might make extradition of criminals to foreign nations, even if the national authority on the subject were set in activity by the treaty-making or legislative power of the federal government, and certainly if these powers remained dormant.

3. That the international obligation to surrender criminals was not absolved, nor the national authority to make such surrender paralyzed or suspended, by the omission of Congress to legislate as to the manner and form of effecting the extradition; and that it belongs to the executive of the nation to perform this international obligation, or execute this national authority, by virtue of his office as established by the Constitution of the United States, excluding, on the one hand, the competency of the federal courts to make the surrender as a judicial function, aud, on the other, the authority of the separate States of the Union to make it at all.

It is believed that no judicial decision of the federal courts upon the direct question of the power or duty of the President of the United States in the premises has ever been made, and that no case has ever presented the point directly for decision. In the case already cited from Johnson's Reports, Chancellor Kent adjudicated the point in favor of the President's authority. In the

case of Holmes, which came before the supreme court of Vermont in banc, the precise point, as a legal question, was decided in favor of the executive authority, that authority having been exercised by the governor of Vermont for the extradition of a Canadian murderer, before the treaty with Great Britain of 1842, and without any legislation of the State on the subject. The supreme court of Pennsylvania, in the case already cited from Sergeant vs. Rawle, expressly withheld its opinion upon the point, as not being in judgment before it, and left it for future consideration, when a case should arise, whether the executive of the nation, or of the State, possessed this power, without the support of a treaty or of legislation.

In this posture of judicial decisions upon the point, there are some principal sources of instruction and assistance in arriving at a correct conclusion, which might aid or correct general reasoning and general authorities on the subject:

1. The observation of learned judges and their decisions, in cases involving any of the principles, or presenting analogies.

2. The practice of the government in its foreign intercourse in questions arising under the law of nations, whether in its own conduct towards foreign nations, or in its demands and expectations from them.

Before proceeding to the examination of these sources of information and instruction, it is well to recur to a consideration of the true nature and limits of the determination to be sought, as not being wholly legal or judicial, but of State and of administration.

Attorney General Wirt, in one of his opinions, to be referred to hereafter more at large, thus clearly presents this important distinction, in reply to questions propounded by the Secretary of State:

"The questions which I understand to be propounded for my opinion are: "1st. Whether we are under obligation and have the power to restore the slave? and if so,

"2d. What form of proceeding should be adopted for this purpose?

"I beg leave to premise that both these questions rest chiefly on national and constitutional law, and on the practice of the government, of which I presume the evidence is to be found in the archives of the state. They are not, therefore, exclusively within the province of this office; but, on the contrary, are questions which address themselves as appropriately to the statesman as the lawyer. I remind you of this truth, that more weight may not be attached to my opinion, under the notion of its being official, than it fairly deserves; and having made this suggestion, I proceed with great respect to express my opinion on the question propounded to me.'

The attention of the government to this precise subject of the action of the Executive in the surrender of criminals, and of the rules of the law of nations on the subject, seems first to have arisen upon a demand by Spain for the delivery of one Jones, a criminal who had fled from Florida, a Spanish dominion. Attorney General Lee gives to the Secretary of State, on the 26th January, 1797, this opinion:

"If a demand were formally made that William Jones, a subject and fugitive from justice, or any of our own citizens, heinous offenders within the dominion of Spain, should be delivered to their government for trial and punishment, the United States are in duty bound to comply; yet, having omitted to make a law directing the mode of proceeding, I know not how, according to the present system, a delivery of such offender could be effected. To refuse or neglect to comply with such a demand may, under certain circumstances, afford to the foreign nation just cause for war, who may not be satisfied with the excuse that we are not able to take and deliver up the offenders to them. This defect appears to me to require a particular law.”—Opinion of Attorney General, vol. 1, pp. 69, 70.

It will be observed that this opinion recognizes the complete obligation, though there was no treaty, and the exposure even of the country to war for its non-fulfilment, but finds a complete paralysis of means to perform the duty or

avert the perils, for lack of a law of Congress in the premises. In a word, the Attorney General puts the matter distinctly upon the same considerations as would govern if there were a treaty requiring extradition, but no law of Congress providing modes and forms for executive action under it. For no one can demand for a treaty stronger obligation or sanction than that the United States are in duty bound to comply" with it, and that "to refuse or neglect to comply may, under certain circumstances, afford the foreign nation just cause of war.'

The next occasion upon which the question arose for the action of the government was in the noted case of Thomas Nash, alias Jonathan Robbins, in the year 1799, claimed under the 27th article of the British treaty. The surrender of the alleged criminal was made by the President, there being no act of Congress as to the mode or agent for the execution of the stipulations of the treaty. The legal question then of the power of the President to make the surrender, which was obligatory upon the nation, was precisely the same as Attorney General Lee had conceived it; and if his view of the necessity of an act of Congress to invigorate the executive function was sound, the extradition should have been refused to England in 1799, as it had been to Spain in 1797.

The action of the Executive in the extradition became the subject of an earnest and most able debate in the House of Representatives, where the arguments on one side and the other were pressed with the utmost skill and force. The celebrated speech of John Marshall, sustaining the action of the President, in its exposition of the doctrines of the law of nations and of the Constitution, which controlled the subject, carried, with Congress and with the country, a judicial weight scarcely surpassed by that awarded to any of his subsequent judgments as Chief Justice.

This debate, in its result, may be considered as establishing two propositions: First, that an international obligation, resting upon the government, may be discharged under the Constitution without the aid of an act of Congress. Second, that it was an executive and not a judicial function, to be performed by the President by mere virtue of his office under the Constitution, without the need of any authority from Congress, or of any agency of the courts. It was strenuously contended that the function was in its nature judicial, and must be attributed to the judicial tribunals, and the action of the President was sought to be impugned as wresting the subject from the constitutional control of the judiciary.

Mr. Marshall thus announced the doctrines on this point, which received the assent of Congress and of the country:

"The case was in its nature a national demand made upon the nation. The parties were two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance.

"The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him.

"He possesses the whole executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.

"He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty, where he, and he alone, possesses the means of executing it.

"The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. The means by which it is be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress unquestionably may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but till this be done, it seems the duty of the executive department to execute the contract by any means it possesses.

"The executive is not only the constitutional department, but seems to be the proper department to which the power in question may most wisely and most safely be confided.

"The department which is intrusted with the whole foreign intercourse of the nation, with the negotiation of all its treaties, with the power of demanding a reciprocal performance of the article, which is accountable to the nation for the violation of its engagements with foreign nations, and for the consequences resulting from such violation, seems the proper department to be intrusted with the execution of a national contract like that under consideration. "If at any time policy may temper the strict execution of the contract, where may that political discretion be placed so safely as in the department whose duty it is to understand precisely the state of the political intercourse and connexion between the United States and foreign nations, to understand the manner in which the particular stipulation is explained and performed by foreign nations, and to understand completely the state of the Union?"

The whole speech of Mr. Marshall, by the method of the closest and most irresistible reasoning, exhibits the conformity of these doctrines with the Constitution, with the principles of international law, and with the established practice of the government, in the maintenance of the international obligation of neutrality, in the surrender by the Executive to one belligerent of prizes taken by the other, in violation or in fraud of our neutrality. This international obligation, though without treaty, he asserted, rested upon the same principles, and was identical in character, with the extradition of criminals. He exposes the error which had described the surrender of prizes in the practice of the government as a judicial proceeding, and exhibits it in its true light as an executive act under the law of nations. A brief quotation from his argument on this point is not out of place, and the whole speech is most worthy of attention. It is found in full in the appendix to 5 Wheat. Rep., in 2 Benton's Debates, and in Wharton's State Trials.

"It has been contended that the conduct of the Executive on former occasions, similar to this in principle, has been such as to evince an opinion even in that department that the case in question is proper for the decision of the courts.

"The fact adduced to support this argument is the determination of the late President on the case of prizes made within the jurisdiction of the United States, or by privateers fitted out in their ports.

"The nation was bound to deliver up those prizes, in like manner as the nation is now bound to deliver up an individual demanded under the twenty-seventh article of the treaty with Britain. The duty was the same and devolved on the same department.

"The decision then on the case of vessels captured within the American jurisdiction by privateers fitted out of the American ports, which the gentleman from New York has cited with such merited approbation, and which he has declared to stand upon the same principles with those which ought to have governed the case of Thomas Nash, which deserves the more respect because the government of the United States was then so circumstanced as to assure us that no opinion was lightly taken up and no resolution formed but on mature consideration-this decision, quoted as a precedent and pronounced to be right, is found, on full and fair examination, to be precisely and unequivocally the same with that which was made in the case under consideration. It is a full authority to show that, in the opinion always held by the American government, a case like that of Thomas Nash is a case for executive and not judicial decision.

Of the acquiescence of Congress and of the public opinion of the country in the positions of Mr. Marshall, sustained at the time by nearly a two-thirds vote of the House of Representatives, the strongest evidence is to be found in the omission of Congress to pass any act during the period that the extradition article of the British treaty of 1795 was in force, and from a similar omission after the negotiation of the treaties of 1842 with Great Britain, and of 1843 with France each containing an extradition article-until the year 1848, after a judicial doubt thrown upon the point by a difference between the federal judiciary and a justice of the supreme court of New York, arising in the case of Metzger, claimed under the French treaty. In this case of Metzger, arising in the year 1847, the learned judge of the district court of the southern district of New York held that an act of Congress was unnecessary to enable the Executive to carry into effect the extradition article of the treaty with France. A learned justice of the supreme court of New York held otherwise, and that, in the absence of an act of Congress, the federal Executive could not make the extradition. (1 Barb. S. C. R., 248.) The case was then brought before

66

the Supreme Court of the United States in a petition for habeas corpus. The court dismissed the petition on the ground that it had no jurisdiction to issue a habeas corpus for the purpose of reviewing the decisions of the United States district judge; but in the opinion of the court, delivered by Mr. Justice McLean, it is declared that the action of the Executive in the case was 'proper," and "the most appropriate, if not the only mode of giving effect to the treaty," and that the aid of legislation was unnecessary. (5 How. U. S. Rep., 188-9.) It may be considered, therefore, that the political and judicial departments of the government concurred in the opinion, that when there was an obligation, or an authority, resting with the federal government, for the extradition of a criminal, it was to be carried out as an executive and not as a judicial act, and that the aid of Congress was not needed for the competent discharge of the obligation or exercise of the authority.

This point being now cleared up, namely, that the absence of an act of Congress does not paralyze the executive function in the discharge of an international duty, or the exercise of an international power, the question reverts to the original one, viz: does the absence of an express treaty displace the international obligation and the national authority on the subject of the extradition of criminals, in the maintenance of the foreign intercourse of the government? The interval between the expiration of the extradition article of the British treaty of 1795 and the negotiation of the treaty of Washington, in 1842, raised the point for Executive consideration in several cases, and in a case of marked interest and difficulty brought it for judicial observation, though not for express judgment, before the Supreme Court of the United States.

It was undoubtedly the habit of the federal Executive to decline to make a surrender of a fugitive criminal, during the interval, upon the application of the British government, and in the cases presented to it, which were of ordinary, though sometimes heinous, crime. From this arose another habit of extradition in satisfaction of what was clearly recognized as a necessary measure of justice and humanity, as well as of self-protection-that is to say, an extradition by the State governments upon the direct application of foreign governments. This habit was acquiesced in (and approved in some instances) by the executive department of the federal government.

The legislature of New York passed a general law regulating the proceedings for such extraditions by the Executive of the State, and the surrender of criminals, of course without treaty, under the general authority or obligation of the law of nations, and in the notion that this right of sovereignty pertained to the States, became systematic.

66

1

In this situation of the habits of the federal and State governments on the subject a notorious case of crime occurred in the Netherlands, in the robbery of the jewels of the Princess of Orange. The diplomatic representative of that government applied to the government of the United States for the extradition of the criminal, who was found in the city of New York. Attorney General Taney gave to Mr. Livingston, then Secretary of State, an opinion as to the propriety of the surrender by the federal Executive in these terms: As there is no stipulation by treaty between the two governments for the mutual delivery of fugitives from justice, I think the President would not be justified in directing the surrender of the person upon whom a part of the stolen articles may have been found, in order that he may be brought to trial in the country where he is supposed to have committed the robbery." (Opinions of Attorneys General, vol. 2, p. 452.) Mr. Livingston, in communicating the decision of the President, expresses to the minister of the Netherlands his hopes "that, from the authorities of the State of New York having taken cognizance of the matter, the objects in view may be obtained by the means now pursuing, as effectually and more constitutionally than they could have been by a literal compliance with the request which has been made." The Department of State sent the