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.”

In the year 1821 Daniel Sullivan, a British subject and master of a British schooner, aided by six accomplices, likewise British subjects, ran away with the vessel into a port of the State of Maine, where she was seized by an officer for having entered in violation of our laws. The British government thereupon demanded that the vessel and cargo should be restored to their lawful owner, and that the British subjects who had committed the offence in question should be delivered up for trial. On this state of facts Mr. Attorney General Wirt, in a most able and elaborate opinion, held that the ship and cargo should be restored, but that, in the absence of treaty stipulations and municipal regulations, there was no power in the President to surrender the alleged conspirators who had run away with the schooner. He wrote, (1 Opinions of Attorneys General, pp. 519-521)

"The truth seems to be, that this duty to deliver up criminals is so vague and uncertain as to the offences on which it rests, is of so imperfect a nature as an obligation, is so inconveniently encumbered in practice by the requisition that the party demanded shall have been convicted on full and judicial proof, or such proof as may be called for by the nation on whom the demand is made, and the usage to deliver or to refuse being perfectly at the option of each nation, has been so various, and consequently so uncertain in its action, that these causes combined have led to the practice of providing by treaty for all cases in which a nation wishes to give herself a right to call for fugitives from her justice. As instances of this, I refer you to the treaties made by Great Britain with Denmark, in 1660; with Portugal, in 1654; with the same kingdom, in 1810; with Sweden, in 1661, &c.

"In our treaty of 1794 with Great Britain, the 27th article provided for the cases in which the contracting parties agreed to bind themselves to surrender criminals, and the degree of proof which should be sufficient to impose the obligation to surrender. The two cases were murder and forgery, and the proof such as should be sufficient to justify an arrest according to the laws of the country in which the demand was made. This article was, by the terms of the treaty, to continue in force for twelve years only; that is to say, the parties agreed to remain bound to this mutual surrender of criminals in the two specified cases for twelve years and no longer. The twelve years have expired; and with them, in my opinion, has expired the right to make the demand even in the specified cases."

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"Upon the whole, I am of the opinion that there is nothing in the law of nations, as explained by the usage and practice of the most respectable among them, which imposes on us any obligation to deliver up these persons; more especially on the very imperfect proof of their guilt, or rather the total absence of everything like judicial proof, on which the application is founded. And this conclusion, drawn from an examination of the general law and usage of nations, derives confirmation in the particular case from the expired article of the treaty with Great Britain, to which I have adverted.

"I am further of the opinion, that even if, by the laws and usage of nations, the obligation existed, and were a perfect obligation, and the proof which is offered of the guilt of the accused also satisfied the requisitions of that law, still the President has no power to make the delivery. The Constitution, and the treaties and acts of Congress made under its authority, comprise the whole of the President's powers. Neither of these contains any provision on this subject. He has no power to arrest any one, except for the violation of our own laws. A treaty. or an act of Congress might clothe him with the power to arrest and deliver up fugitive criminals from abroad; and it is perhaps to be desired that such a power existed, to be exercised or not at his discretion; for, although not bound to deliver up such persons, it might very often be expedient to do it. There could certainly be no objection to the exercise of such power in a case like the present. It would violate no claim which these fugitives have on

us."

In the year 1831 Attorney General Taney, the present Chief Justice, was called to express an opinion whether the President of the United States could return to Holland for trial a person alleged to have stolen some diamonds of the Princes of Orange. He gave it as his opinion that, in the absence of a treaty stipulation, the President "would not be justified in directing the surrender of the persons." (2 Opinions of Attorneys General, p. 452.)

To the same effect Attorney General Taney wrote as follows, it was alleged, under date of April 16, 1833, in respect to an application of the King of Portugal for the delivery of two seamen who had committed the crime of piracy— 2 Opinions of Attorneys General, p. 559 :)

"There is no law of Congress which authorizes the President to deliver up any one found in the United States who is charged with having committed a crime against a foreign nation; and we have no treaty stipulations with Portugal for the delivery of offenders. In such a state of things it has always been held that the President possesses no authority to deliver up the offender."

In the year 1841, while Mr. Seward, the present Secretary of State, was governor of the State of New York, he addressed a communication to Daniel Webster, then Secretary of State under President Tyler, inquiring whether it was lawful for him, as governor of New York, to surrender one Dewit, a fugitive from justice, demanded of him by the governor general of Canada. The question being referred by Mr. Webster to the office of the Attorney General, Mr. Legaré held as follows-(3 Opinions of Attorneys General, p. 661:)

"I think, from the whole argument of the bench in the case of Holmes vs. Jennison, 14 Peters, 540, we may consider it as law, first, that no State can, without the consent of Congress, enter into any agreement or compact, express or implied, to deliver up fugitives from justice from a foreign state who may be found within. its limits; second, that according to the practice of the executive department, as appears from the official correspondence both of Mr. Jefferson and Mr. Clay, your predecessors in office, the President is not considered as authorized, in the absence of any express provision by treaty, to order the delivering up of fugitives from justice. In the absence, therefore, of such treaty stipulations, I am of opinion that it is necessary to refer the whole matter to Congress, and submit to its wisdom the propriety of passing an act to authorize such of the States as may choose to make arrangements with the government of Canada, or any other foreign state, for the mutual extradition of fugitives, to enact laws to that effect, or acts approving such laws as may already have been passed in the several States to that effect.

"Whatever I may think of the power of the federal Executive in the premises, were this a new question, I consider the rules laid down by Mr. Jefferson, and sanctioned after the lapse of upwards of thirty years by another administration, as too solemnly settled to be now departed from."

In the year 1853, Mr. Attorney General Caleb Cushing reaffirmed the doctrine of our government on the subject. He wrote under date of August 19, in that year—(6 Opinions of Attorneys General, p. 86:)

"It is the settled political doctrine of the United States, that, independently of special compact, no State is bound to deliver up fugitives from the justice of another State. (See the authorities collected in Wheaton's Elements, p. 172.)

"It is true, any State may, in its discretion, do this as a matter of international comity towards the foreign state; but all such discretion is of inconvenient exercise in a constitutional republic, organized as is the federal Union; and accordingly it is the received policy of this government to refuse to grant extradition except in virtue of express stipulations to that effect."

It will thus be seen that the line of legal tradition on this subject in our country is as unbroken as it is express. And if we turn to the institutes of the law as held in Great Britain, we shall find that the same maxims obtain. We need but refer to a single occasion when they were formally enunciated in the British Parliament with all the authority attaching to the highest law officer of the realm, and the occasion was one which makes these declarations especially interesting to American readers.

The ship Creole was sailing with a cargo of one hundred and thirty-eight slaves from one slaveholding port of the United States to another slaveholding port. In the course of the voyage the slaves rose upon the captain and crew, seized the vessel, and took her into the port of Nassau, in the Bahamas. In the act of her seizure by the slaves a scuffle occurred, in which the master of the slaves was killed. Upon their arrival in the Bahamas one hundred and twenty of the slaves were landed and liberated, and the remaining eighteen, engaged in the capture of the vessel, were taken into custody on the charge partly of murder and partly of piracy.

The question therefore arose, whether these slaves could be lawfully held in custody by the British authorities in the Bahamas for the crime thus alleged against them; and whether, in answer to a demand of the government of the United States, they could be rightfully given up for trial in this country. Upon

these questions Lord Brougham held the following language in the House of Lords on the 3d of February, 1842:

"He ventured to state, that, by the law of this country, no person, whether he were a British subject returning from abroad, or an alien coming to our shores, no person charged with having committed an offence out of the jurisdiction of Great Britain could be seized, or detained, or given up to any foreign government whatever, which might demand to have him given up, in respect to the offence with which he was charged. For example, if an Englishman in France were to commit a felony-say even a murder-and return to this country, or if a Frenchman in France were to commit a murder and escape to this country, the French government might in vain demand of the English government to have the alleged murderer given up for the purpose of being tried for his offence in France. There had at different times, no doubt, been treaties between this country and France, and at one time there was a treaty between this country and the United States of America, for the mutual surrender by each government, on the requisition of the other, of persons charged (according to the American treaty of 1795) with the two offences of murder and forgery; and (according to the treaty of 1802 with France) of persons charged with the three offences of murder, forgery, and fraudulent bankruptcy. But before those treaties could be carried into effect in this country it was necessary to pass especial acts of Parliament, to enable the government to perform the obligation which it had incurred by the treaties; and accordingly the 37th George 3d gave the powers required for executing the treaty with America, and the 42d George 3d, commonly called the alien act, not satisfied with the general powers of the alien act, had a clause referring to the French treaty, and arming the government with the power to arrest, detain, and surrender parties. He hoped that their lordships would excuse his entering into these particulars, on account of the great importance of the question. There was no lawyer who could entertain any doubt upon the subject. It was clear that the surrender of any of the slaves, or even of any of the persons charged with the felony, the alleged murder having been committed beyond the territory of Great Britain, would be utterly without warrant, and, by the law of this country, could not possibly be accomplished, even if the government were disposed to do it. A doubt may possibly arise as to whether the act committed on board the Creole might not be piracy. The facts as stated did not appear to constitute piracy. If there were any who considered that a doubtful or debatable point, then he apprehended that the true course of proceeding would be to put the matter into a course of investigation-to have a judicial inquiry, so that all the facts and circumstances might be fully ascertained, and that the legal import of those facts might be determined. But even if the circumstances connected with the seizure of the Creole amounted to piracy, it did not follow that those who had been guilty of it should be given up by the government of England to the government of any other country. If the facts amounted to pira cy the parties, though aliens, were triable in our courts. If any doubt lingered in his mind, it was as to the right of delivering up aliens charged with piracy; and if any persons held that such a power of surrender existed, the question might be put in a course of judicial investigation. He would fain hope that this accidental occurrence of the capture and bringing into port of the Creole, when rightly understood in America, would have no effect in delaying the successful accomplishment of that most important mission upon which his noble friend opposite (Lord Ashburton) was about to proceed-greatly to the advantage of the negotiations, greatly to the benefit of the two countries, which had a high and an equal interest in perpetuating the friendly relations so essential to the prosperity of both, and greatly to his own honor, in having undertaken, in the circumstances of the case, this most important service."

On the 14th of the same month Lord Brougham referred to the subject in the following terms. We quote from Hansard's Report of the Parliamentary Debates, volume 60 of the third series:

"What right existed, under the municipal law of this country, to seize and deliver up criminals taking refuge there? What right had the government to detain, still less to deliver them up? Whatever right one nation had against another nation-even by treaty, which would give the strongest right-there was, by the municipal law of the nation, no power to execute the obligation of the treaty. If such a treaty existed between any two countries, say between America and this country, and no act of Parliament had passed enabling the government in either country to perform its conditions, that treaty became utterly unavailable, because the law of the land prevented the possibility of its being executed. Suppose it was clear, and no doubt existed that a treaty were in force binding on the two parties, (and such an obligation would be much more clear than any that could be pretended under the general law of nations, the common international law,) and suppose either party had omitted to take power from its own legislature to carry the treaty into execution, the mere existence of the treaty would not enable that power to carry the treaty into effect. The treaty would be a dead letter if the municipal law of that country did not authorize the fulfilment of its provisions. It was necessary to say so much, because he thought some of those who had argued the subject, particularly in America, had not kept the two questions of international

law and of municipal law sufficiently apart. It was necessary that a municipal law for detaining and giving up criminals should exist, as well as the law of nations. Such a municipal law did not exist in this country. There was no power by our municipal law to seize, still less to surrender, any person having committed an offence, however grave that offence might be, within the jurisdiction or limits of any other country; whether he were an alien or not, there was no power to give him up until the legislature of this country should arm the government with a power to do so. He had on the first night of the session referred to two cases, the acts of 1797 and 1802, passed for the purpose of arming the government with the power of performing their obligations contracted by Mr. Jay's treaty and the treaty of Amiens, and without which acts it would have been impossible to have performed those obligations. He had stated that the only doubt in his mind with regard to the case of the Creole arose from the suggestion that a piratical offence had been committed. No doubt the case of piracy was in two particulars different from the general law respecting charges against aliens for crimes committed beyond the jurisdiction of the country; for whereas in any other case they had no power to seize or detain, yet in a case of piracy, although the party was an alien, they had power to seize and detain. That was one particular in which a difference existed; but another particular was the power of trying the alien pirate, and therefore he had no doubt that, even in the case of piracy, we had not, and ought not to have, the power to deliver up, because where the offence was piracy we had not only the power of seizing and detaining the person, but we could send him to his trial; so that here was no deficient jurisdiction, and no fear that the criminal would go unpunished, whilst in the case of a murder alleged to have been committed by an alien in a foreign country there was no power either of arresting or of bringing him to trial. It was impossible to deny, and he did not deny, that this was a state of law which ought not to continue. He thought it highly expedient-he thought the interests of justice required, and the rights of good neighborhood required-that in two countries bordering on one another, as the United States, Canada, and even that in England and in the European countries of France, Holland and Belgium, there ought to be laws on both sides giving power, under due regulations and safeguards, to each government to secure persons who have committed offences in the territory of one and taken refuge in the territory of the other. He could hardly imagine how nations could maintain the relationship which ought to exist between one civilized country and another without some such power; at present, however, such a power did not exist in this country; so that the whole territory of one country became an asylum for fugitives from justice in another. But as to the laws now in force there could be no doubt. Such a proceeding as seizing and detaining, much more of delivering up fugitives, was wholly illegal.'

The Earl of Aberdeen, who was then the British secretary of state for foreign affairs, expressed his concurrence in the views of Lord Brougham as follows:

"As their lordships might well imagine, her Majesty's government had given the question their most serious and anxious attention; and after taking advantage of all the assistance which they thought desirable on the subject, they had satisfied themselves that by the laws of this country there is no machinery or authority for bringing those persons to trial for mutiny and murder, still less for delivering them up or detaining them in custody. His noble friend, the secretary of state for the colonial department, had therefore sent out instructions for releasing those persons who had hitherto been detained."

Lord Denman, the lord chief justice of England at the same time, spoke as follows:

"He believed that all Westminster Hall, including the judicial bench, were unanimous in holding the opinion expressed by the noble earl, and that in this country there was no right of delivering up, indeed no means of securing, persons accused of crimes committed in foreign countries. The matter was under discussion frequently when the alien bill had been year after year before the House of Commons, and the lawyers of all parties had come to the same conclusion.

"Nor were these opinions confined to the lawyers of Europe. Great lawyers of Americamen distinguished by their profound erudition, whose decisions are so highly respected among us, and whose valuable works on great legal questions are studied and consulted in this country with the highest advantage-held the same doctrine. Indeed, Chancellor Kent, in his Commentaries on American Law, (1836,) appears to incline to the opinion of Grotius and Vattel, against that of other eminent jurists, that persons accused of crimes ought to be delivered up to the country where they are accused, and one case appears to have been decided by himself when he held his office in conformity with that doctrine. But it may be remarked that the peculiar constitution of a federal government, comprehending many States with various laws, renders any decision, however respectable, of less extensive application, at least till all the particular provisions existing when it was made are fully canvassed. But Justice Story, in his more recent edition of The Conflict of Laws, (1841,) concludes a discussion on this subject by citing the passage from Lord Coke, adding, in terms, one chief

justice in America has adhered to the same doctrine in a very elaborate judgment; that the reasoning of another chief justice, in a leading case, leads to the same conclusion; and that it stands indirectly confirmed by a majority of the judges of the Supreme Court of the United States in a very recent case of the deepest interest.

"Therefore, although distinguished jurists may feel a desire for some arrangement for the surrender of foreign criminals, it would seem that the municipal law of America rests on the same principles as our own, which, as he had already stated, recognized no right and provided no machinery by which the subjects of another state seeking refuge here could be given up to the country to which they belonged. He had, therefore, come prepared respectfully to warn secretaries of state, if it had not been rendered unnecessary by what had passed, that they could not seize or detain aliens seeking refuge here without subjecting themselves to actions for damages for false imprisonment, and without further incurring the risk of a still heavier and more awful responsibility; for if a man attempted to seize an alien under such authority he might resist, and if death ensued, he would be justified in inflicting it, while those who ordered his arrest and detention would be liable to be tried for murder. He agreed with his noble and learned friend that the comity of nations might be properly employed in considering of treaties and laws which would allow nations to seize and give up to each other their respective criminals; but this could only be done on the supposition that the laws of all nations should be reasonable and just, for no country could be justified in enforcing those laws which it believed to be founded on injustice, oppression, and cruelty. Some few great criminals had possibly been given up without notice; but he believed that the United States of America had refused to give up an English subject charged with forgery, because they disapproved of the punishment of death for that crime; and until the internal law of all countries was such that each would have no objection to adopt it, he feared that this desirable object could not be accomplished. He indulged a hope that those distinguished persons, the judges and jurists in America, who had been referred to, would, in common with those of other countries, apply their minds to these considerations."

Lord Campbell held the following language on the subject:

"He said that after the statement of their opinions by his two noble and learned friends, he should not have felt it necessary to address their lordships if it had not been asserted, and widely circulated, that he had, when attorney general, advised that men similarly circumstanced should be sent home for trial. Nothing could be more contrary to the fact than such a statement. He had never given any opinion of the kind. On the contrary, he had held that, by the law of nations, no state had a right to demand from another the surrender of any of its subjects; and that in the case of England, the municipal law did not authorize or enable the executive to comply with any such demand. He agreed with the lord chief justice that it might be very convenient to have treaties under which persons accused of murder and other high crimes should be surrendered, but such treaties would not justify the demand being acted on until the municipal law provides the means for carrying the treaties into execution. Without an act of Parliament there was no authority for giving up a refugee to any foreign state."

The Lord Chancellor spoke as follows at the close of the debate:

"He apprehended that he was the only law lord in the house who had not yet given his opinion. He had been consulted upon the question, as well as the attorney and solicitor general, and without pretending to state the terms in which their opinion had been given, he might say that it fully agreed with what had been advanced by noble and learned lords who had already spoken. He did not think that a second opinion could be entertained."

It will thus be seen that, according to the universally received maxims of law as held in the United States and Great Britain, the executive authority is not authorized, in the absence of treaty stipulations and of municipal legislation carrying them into effect, to arrest and deliver up fugitives from justice. Hence the origin and purpose of the 10th article in the treaty of Washington, negotiated between the United States and Great Britain, in the year 1842, by Mr. Webster and Lord Ashburton, providing for the extradition of persons charged with certain specified crimes. The treaty, under this head, ordained that "the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive, that he may be brought before such judges or other magistrates to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive."