arson, or robbery, or forgery, or the utterance of forged papers. It is, therefore, in these cases only that by treaty either Government can claim the extradition of fugitives from justice taking refuge in the dominions of the other.

It is the settled 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 decided policy of this Government to refuse to grant extradition except in virtue of express stipulations to that effect (Mr. Legare's Opinion, October 11, 1841) (1).

I think it is unjust and unwise, in point of principle, for the United States to ask as an act of comity from any other Government what it refuses to do in the like case itself. We should, it seems to me, stand on the basis of complete reciprocity of right and equal justice in all our relations with foreign Governments, doing as we would be done by, and demanding of them only what we are prepared to concede in return. That was the public doctrine of this Government in the days of our relative weakness, and it should the more plainly be so now in the time of our relative strength.

Special reasons exist to dictate reserve in the matter of extradition. If the enumeration of cases for the claim of extradition in existing treaties be not sufficiently ample, it would seem better to enlarge the same by further mutual stipulations, rather than at the mere discretion of the President.

I am therefore of opinion, that to grant the present application would be contrary to the true doctrines of international law, and to the received practice of the United States.

The President.

C. CUSHING.

(1) See ante, p. 342.

(5.) OPINION of the same Attorney General on the same subject (1).

Attorney General's Office, August 31, 1853. SIR, I have considered the question presented by your note of yesterday.

It appears that on application on behalf of the British Government, duly made to that of the United States, a mandate issued on the 12th inst., in the name of the President, calling on certain magistrates therein designated, or any one of them, to cause William Calder, charged with the crime of forgery committed in Great Britain, to be arrested as a fugitive from justice, and to examine the evidence of his criminality; and, if the charge should be sustained, to certify the same to the President, to the end that said Calder may in such case be surrendered to the proper authorities of the British Government.

This mandate, the issue of which is a departure from the recently pre-existing practice of the Government, seemed to me to be called for by the action of the Supreme Court of the United States in Kaine's Case (In re Kaine, 14 Howard, p. 103); for although the necessity of such a mandate is not the thing specifically passed upon by the Court in that case, yet the views expressed by some of the members of the Court as to the true course of proceeding in such cases, and the analogy of the practice in Great Britain itself, led to the conclusion on the part of the President, that in case of claim for extradition falling within the scope of any treaty provision, it was proper for this Government, on being requested by the foreign Government desiring extradition of an alleged fugitive from its justice, and reasonable cause in the premises being shown, to move to action the proper judicial authorities of the country, in order to the arrest and lawful examination of the party charged with crimes and the investigation thereof for the information of the Government.

So that, whereas heretofore, the parties desiring the extradition of an alleged fugitive from the justice of a foreign Government went, in the first instance, to some one of the officers designated in the Act of Congress of the 12th of August, 1848, entitled “An Act for giving effect to certain treaty stipulations between this and (1) 6 Attorney Generals' Opinions, 91.

foreign Governments for the apprehension and delivery up of certain Offenders," and sued out a warrant of arrest and pursued the other requisitions of that Act; now, in the opinions expressed, by Mr. Justice Nelson especially, in Kaine's Case, the party may, if he please, commence by applying to the President of the United States for a mandate, which being granted, the Act of Congress above cited then takes up the case, and pursues it to the conclusion corresponding to the particular facts and to our treaty obligations towards the given foreign Government.

I say here, in repetition, substantially, of the idea before intimated, that the foreign Government may, if it please, apply to the President for a mandate. The Federal Government does not require this, but only stands ready to do it if required by the foreign Government.

For, when carefully analysed, the decision in Kaine's Case appears to be this: Thomas Kaine, charged as a fugitive from the justice of Great Britain within the treaty, was arrested by one of the Commissioners in New York, appointed by the Circuit Court of the United States to take affidavits and examinations, and committed to abide the order of the President.

Thereupon a writ of habeas corpus in the matter was issued by the Circuit Court of the United States, and upon the hearing before the District Judge dismissed. After this another writ of habeas corpus was ordered by Mr. Justice Nelson at chambers, and a hearing thereon reserved by him to be had before the Supreme Court of the United States in banco. On the argument of the case, eight judges being present, four of these (Justices Catron, McLean, Wayne, and Grier) declared, through Mr. Justice Catron, that in their opinion the proceedings before the Commissioner were correct, and the party had been rightfully committed for extradition, but that the Supreme Court had no jurisdiction of the habeas corpus. Mr. Justice Curtis, for other reasons assigned by him, came to the same conclusion as to the precise question before the Court; and Mr. Justice Nelson, and the Chief Justice and Mr. Justice Daniel, for whom he spoke, were of opinion that the proceedings before the Commissioner were incorrect, and that the Supreme Court had jurisdiction of the writ of habeas corpus to revise the question of the lawfulness of Kaine's commitment.

Now, it was in the consideration of the question of jurisdiction, the only thing decided by the Court, that discussion came up arguendo as to the rightfulness of the proceedings before the Commissioner. Mr. Justice Nelson, with whom were the Chief Justice and Mr. Justice Daniel, expressed the conviction that a previous mandate from the President was necessary, and that no Commissioner could lawfully act unless appointed specially ad hoc; while the contrary was held by Mr. Justice Catron, with whom were Justices McLean, Wayne, and Grier; and Mr. Justice Curtis expressed no opinion upon these points. The only thing authoritatively adjudged, therefore, by five judges out of eight, was that the Supreme Court had no jurisdiction.

Now, the decision of Kaine's Case not definitively establishing the necessity of such a mandate, and that alleged necessity being a part of the argument only, and that of a minority of the Court, the minister of the foreign Government has the faculty still to go to some lawful magistrate in the first instance, and take his chance of what may be ultimately adjudged to be the law in the premises. But if the foreign Government desire to be relieved of this hazard, the President has the power, and in the exercise of a just comity, and especially in the discharge of his whole obligation to see to the faithful observance of treaties, he will, when occasion requires, proceed to give his mandate, by which the foreign Government will be relieved of the difficulty arising on the opinion of Mr. Justice Nelson and others of the judges of the Supreme Court of the United States.

In the present case, a warrant of arrest had been issued by the Honourable John W. Edmonds, of the Supreme Court of the State of New York, who certifies to the President, under date of the 23rd inst., that he has had the fugitive before him, and has heard the case upon evidence and argument, and is of opinion that there is not evidence enough of the criminality of the said Calder, according to the laws of the State of New York, to justify his apprehension and committal for trial for the offence charged, if the same had been committed in said State.

Mr. Justice Edmonds reports the evidence in the case, and supports his conclusion in a carefully-drawn opinion, independently of which the precise question before him was one exclusively within

his province as a Judge to determine; and upon his report, whether his opinion of the effect of the evidence be erroneous or not, it is clear the President cannot order the surrender of the said Calder.

But another question arises upon a second report of Justice Edmonds; for it for it appears that a motion has been submitted to the Court to remand the party until new evidence can be obtained from Great Britain to maintain the charge-to grant which application the Court has decided not to be within its province, the same vesting, if anywhere, in the Government of the United States. Upon which the Minister of the British Government here applies to the Secretary of State, requesting "that directions may be given for the retention of the prisoner in custody for the time required" for the procurement of "further evidence"-and the inquiry which thus presents itself is of the duty and the power of the President in this behalf.

His general duty in this case, of course, is that which the 10th Article of the treaty with Great Britain imposes-namely, to "deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper," committed within the jurisdiction of Great Britain, shall seek an asylum in the United States: Treaty of August 9, 1842, U. S. Stat. at Large, vol. viii. p. 576.

But this, by the terms of the treaty, is to be done upon such evidence of criminality as, according to the laws of the place where the alleged criminal shall be found, would justify his apprehension and commitment for trial, if the crime or offence had been there committed; and the judges, and other magistrates thereto lawfully authorized, are to cause the arrest of the party charged, hear and consider the evidence, and if on such hearing the evidence be deemed sufficient to sustain the charge, the examining judge or magistrate is to certify the same to the Executive.

In like manner the Act of Congress, which is in execution of and subordinate to the treaty stipulations of this class, commits to the judge or magistrate the duty and power of arrest of the party, his examination, the hearing of the evidence, and the determination of the questions upon which, if at all, the surrender of the alleged criminal is to be made.