Page:The American Cyclopædia (1879) Volume VII.djvu/50

 EXTRADITION general course under these statutes is the fol- lowing : The accused is either indicted in the state where the crime is alleged to have been committed, or he is charged with the offence before a magistrate, who, after examining into the case, and being satisfied by evidence that the charge is well founded, issues his warrant for the arrest. A copy of the indictment or warrant is then presented to the executive of that state, who will give a formal requisition upon the executive of the state to which the accused has fled for his surrender. The execu- tive upon whom the requisition is made, if the papers appear to be regular and sufficient, is- sues his warrant in compliance, directed to an officer or to the agent of the state making the requisition, which will be authority for the apprehension and removal of the accused. Some statutes authorize the supposed fugitive to be first complained of, examined, and com- mitted where he is found, to await a requisition from the proper executive. It is settled under the constitutional provision cited above that persons are liable to extradition under it who having committed offences in one state are found afterward in another, whether their go- ing to such other state was for the purpose of avoiding punishment or not ; but at is also settled that one cannot be extradited to a state where he is not alleged to have been when the crime was committed. Thus, when Smith, the Mormon prophet, was charged with having in Illinois been accessory to the attempt upon the life of Gov. Bogy in Missouri, it was decided that he could not be regarded as a fugitive, and consequently could not be surrendered. The most important controversy under this provi- sion has been as to the offences covered by it. It has been sometimes insisted that only those acts were to be considered crimes within its intent which were such at the common law, or at least which were punishable as crimes in the state upon which the demand was made ; and cases occurred in which governors in the free states refused to surrender persons who were accused in the slave states of offences against the slave code. The last of these cases arose in 1859-'60, when a demand was made upon the governor of Ohio by the governor of Kentucky for the surrender of one Lago, who was accused of the crime of seducing a slave to escape from her master. The demand was refused, on the ground that the act was not an offence known to the laws of Ohio. Applica- tion was then made to the supreme court of the United States for a mandamus to compel a surrender ; but that court, while declaring its opinion that the words "treason, felony, or other crime," as employed in the constitution, include every offence forbidden and made punishable by the laws of the state where the offence was committed, at the same time de- cided that the court had no power to compel the performance of executive duties by the governor of a state. Since the abolition of slavery, no similar controversy is likely to arise. II. EXTRADITION BETWEEN SOVEREIGN NATIONS. As a general rule, one nation does not under- take to punish offences not committed within its territories, though the offender may be found there. Many publicists, however, have ex- pressed the view that nations owe to each other the obligation to surrender offenders who might have fled to them for an asylum ; but this obligation, if it exists, must be regarded as imperfect, and as requiring stipulations to determine the occasions in which it may arise, and the manner of its exercise. Accordingly, though the extradition of offenders has been practised by some countries on grounds of comity only, it is now customary to make the obligation one of compact, in which the respec- tive parties stipulate to what offences it shall apply, and what exceptions, if any, shall be made. There are two methods of making such compacts : one by legislation, where a country provides by its own laws that persons accused of offences abroad shall be subject to extradi- tion on condition of reciprocity ; the other by convention or treaty. The latter is the method usually adopted. In making such treaties it is customary to provide that they shall not apply to offences previously committed, or to those of a political character ; though independent of any such express stipulation such cases, we think, must be considered impliedly excepted. It is sometimes provided, also, that the con- tracting nations shall not be bound to surrender their own subjects, though this exception would not be likely to be insisted upon unless un- der very peculiar circumstances. The United States has taken the lead in diplomatic negotia- tions on this subject, and we now have treaties for the mutual rendition of persons accused of offences as follows: With Great Britain (in- cluding all its possessions): murder; assault with intent to commit murder ; piracy ; arson ; robbery; forgery or the utterance of forged paper. (Treaty of Aug. 9, 1842. This was an enlargement of Jay's treaty of 1V94, which provided for the mutual rendition of persons accused of murder and forgery.) With the Hawaiian Islands : the same offences specified in the treaty of 1842 with Great Britain. (Treaty of Dec. 29, 1849.) With France: murder, comprehending the crimes designated in the French penal code by the terms assas- sination, parricide, infanticide, and poisoning; attempt to commit murder ; rape ; forgery ; arson ; embezzlement by public officers, when the same is punishable with infamous punish- ment ; but this not to apply to offences pre- viously committed, nor to those of a purely political character. (Treaty of Nov. 9, 1843.) To the above have been added robbery and burglary (treaty of Feb. 25, 1845) ; forging or knowingly passing or putting in circulation counterfeit coin or bank notes or other paper current as money with intent to defraud; embezzlement when subject to infamous pun ishment ; and the case of accessories and ac- complices, as well as principals, is included