this basic principle in order to accomplish the ends which ideal administration of criminal justice demand. In its practical operation extradition or the machinery to carry it into effect is a mixture of jurisprudence and executive administration, for even though the extradition judge or commissioner, after hearing the evidence of the demanding government in support of the application and the prisoner's evidence in rebuttal, should certify that there are the strongest grounds for extradition and so recommend, the Executive may disregard such finding entirely and refuse to deliver up the fugitive. As it is impossible in a short article to consider all the treaties of extradition I shall confine myself at this time to a consideration of the treaties between Great Britain and the United States as being the one with which we are most concerned, and shall treat of the subject of proceedings in the United States on an application for the surrender of a fugitive. TREATY OFFENCES. The first treaty of extradition between Great Britain and the United States was proclaimed February 29th, 1796, and provided for the mutual surrender of fugitives found in the territory of the other, being charged with murder or forgery. This treaty was known as the Jay Treaty and was limited in duration to twelve years. It was never renewed owing to political difficulties which its operation engendered, resulting in the overthrow in the United States of the administration of President John Adams. The nucleus of the present treaty provisions between Great Britain and the United States is Article X of the Ashburton Treaty of 1842, which contains the following crimes: Murder. Assault with intent to commit murder. Piracy. Arson. Robbery. Forgery. Utterance of forged paper. By a convention concluded at Washington in 1889 the following crimes were added to the list of extraditable offences: Manslaughter when voluntary. Counterfeiting or altering money, uttering or bringing into circulation counterfeit or altered money. Embezzlement, larceny, receiving any money, valuable security or other property, knowing the same to have been embezzled, stolen or fraudulently obtained. Fraud by a bailee, banker, agent, factor, trustee, or director or member or officer of any company, made criminal by the laws of both countries. Perjury, or subornation of perjury. Rape; abduction; child-stealing; kidnapping. Revolt, or conspiracy to revolt by two or more persons on board Crimes and offences against the laws of both countries for the suppression of slavery and slave-trading. By a convention concluded at Washington in 1900, the following crimes were added: Obtaining money, valuable securities or other property by false pretences. Wilful and unlawful destruction or obstruction of railroads which endanger human life. Procuring abortion. Again by supplementary convention concluded at London in 1905 two more offences were added as follows: Bribery, defined to be the offering, giving or receiving of bribes made criminal by the laws of both countries. Offences, if made criminal by the laws of both countries, against bankruptcy law. The last supplementary convention was concluded in 1922 at London, by which the crime of "wilful desertion or wilful non-support of minor or dependent children " was added to the list of crimes. The operation of this last convention was confined to offences committed in the United States or Canada. It may be stated in passing that this last convention adding "wilful desertion or wilful non-support of minor or dependent children is actually inoperative. It has created an anomalous situation, because in order to effect extradition the offence must be one made criminal by the laws of both countries, and the question of whether the offence comes within the treaty must be determined by the law as it exists in the two countries at the time of the application, Cohen v. Jones, and further the complaint laid in the United States must be charged in the language of the treaties. In Canada there is no offence which could be so charged in accordance with the language used in this supplementary convention. Section 242A of the Criminal Code, which is the offence probably sought to be covered, contains elements which are wholly inconsistent with the language of the treaty offence. In any case, the practice of bringing back deserting husbands is a useless The only object to be attained is the support of the children and this is seldom accomplished. After the magistrate makes his order for the payment of a small weekly sum, the man disappears and the process might go on and on. one. TREATY STIPULATIONS. Surrender is made of a person charged with an extraditable crime upon such evidence of criminality as according to the laws of the place where the fugitive is found would justify his apprehension and commitment for trial if the crime had there been committed. As each separate state of the Union makes its own criminal law, the surrender of the accused will depend upon whether the crime charged is an offence in the State where he is found, People v. Tomlinson.2 The fugitive will not be surrendered if the offence is one of political character. The right of determining what is a political offence rests with the authorities of the State applied to, In re Ezeta.3 No person surrendered may be tried for any other offence committed prior to surrender other than the one upon which he has been extradited until he has had an opportunity of returning to the place from which he was surrendered, U.S. v. Rauscher. This, however, does not mean that a person surrendered on a charge of murder could not properly be convicted of manslaughter. Higher offences include the lower, United States v. Watts.5 The offence must be criminal by the laws of both countries. This means that if a certain set of facts are known as theft in Canada and the same facts would constitute the crime of embezzlement in the United States, then extradition might be obtained, but merely because a province of Canada charges a crime as theft, and larceny happens to be a crime known to the state of asylum and is included. in the treaty would not justify surrender. The acts charged must constitute larceny under the laws of that state. 1100 Fed. 639. 62 Fed. 972. 119 U.S. 407. 14 Fed. Rep. 911. "Absolute identity is not required; however, so long as the essential character of the transaction is the same and made criminal by both countries, Wright v. Henkel.“ SUPPORTING LEGISLATION. In the United States a treaty, without supporting legislation, is the supreme law of the land of which all courts both state and national are bound to take judicial notice U.S. v. Rauscher (supra), and moreover it overrides conflicting provisions in the constitution of any state. In order, however, to clarify and facilitate the operation of extradition treaties, the United States Congress has by statute provided machinery for the method of swearing of complaints and generally supplementing the more general terms of the treaty (R.S.U.S., sec. 5270 et seq). EVIDENCE. The documentary evidence in support of the application is prepared in narrative form and the test of its admissibility is the certificate of the chief consular officer of the United States resident in the country making the application certifying that the papers are authenticated in such a manner as would entitle them to be received for similar purposes by the tribunals of the country from which the accused escaped, Grin v. Shine. COMPLAINT. The complaint is usually laid at the instance of the AttorneyGeneral of the demanding province by the British Consul before the Commissioner appointed to conduct extradition proceedings, if there is one, or before any Justice of the Supreme Court of the United States or United States Circuit Court Judge. The complaint may be on "Information and belief," but the complainant should state the source of his information and the ground for his belief and should annex to his complaint a properly certified copy of any indictment or equivalent proceeding or a copy of the depositions of witnesses having actual knowledge of the facts, Rice v. Ames. WARRANT OF ARREST. A Warrant of Arrest is then issued by the Extradition Commissioner or a judge authorized to deal with extradition matters and 190 U.S. 40. 187 U.S. 181. $180 U.S. 371. placed in the hands of the United States marshal, who is a Federal officer, for execution. Unlike ordinary criminal warrants in the United States, it may be executed in any part of the United States; the accused, however, must be brought before the nearest Extradition Commissioner; he cannot be brought out of the State in which he was arrested, Pettit v. Walshe. HEARING. The fugitive may then be brought before such Commissioner or Judge to the end that the evidence of criminality may be heard and considered. If on such hearing the evidence be deemed sufficient to sustain the charge, it is his duty to certify the same to the United States Department of State in order that a Warrant of Surrender may issue. If the evidence be deemed not sufficient the accused may be discharged. This discharge, however, does not act as a bar to further proceedings on the same charge. The provisions respecting double jeopardy do not prevent committal for extradition on new affidavits after discharge on others identical in form and substance, Collins v. Loisel.10 BAIL. Bail pending the hearing before the Commissioner is only granted under the most pressing circumstances and most of the decisions are adverse to granting bail. After committal there is no authority for granting bail, Wright v. Henkel (supra), although I recall a case of its having been done, in the face of this and other decisions. In the matter referred to the accused "jumped his bail" and is at present a fugitive from justice. HABEAS CORPUS. Application may be made to a judge of the District Court for a Writ of Habeas Corpus at any time. A State Court has no power to grant such a writ on extradition proceedings. If habeas corpus is applied for after committal, the Court has only power to see if the committing magistrate had jurisdiction. "If the committing magistrate had jurisdiction there is a treaty offence and legal evidence on which to exercise his judgment as to the sufficiency of facts to establish criminality, the decision of the magistrate cannot be reviewed on Habeas Corpus, McNamara v. Henkel." The discharge of the accused 194 U.S. 205. 10 262 U.S. 426. 11 226 U.S. 520. |