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make it desirable that, if it may be lawfully done, the application of Mr. Hulsemann should be granted.
But on a careful consideration of the only document filed in the case, it does not seem to me sufficient to justify the interposition of the President.
That document is, in fact, a mere notification of the fact, that such a party, guilty of such a crime, has escaped, and perhaps fled to the United States, and suggesting her extradition; said notification, a certificate, being under the seal of the criminal court of the city of Fulda. Such a document is not in conformity with what is required as between the different States of the American Union among ourselves, in the case of extradition of criminals under the Constitution of the United States, nor what is required as between us and those foreign States near us which have a known practice on the subject.
Thus, as between the States of this Union, the demand for extradition must come from the executive authority of the demanding State (Constitution Act, iv. s. 2), and the accompanying justificatives pieces—that is, the indictment, or record of convictions, or the testimony before the examining magistrate—must, in like manner, be certified by the executive authority of the demanding State (Act of Feb. 12, 1793, 1 Stat, at Large, p. 302). According to the municipal law, as well of England as of the United States, the mere seal of a local court on which to act—the seal and the authority of the court—must, in general, be proved, either by testimony of witnesses or by the great seal of the State (1 Starkie's Evidence, p. 285, and notes ; 1 Greenleaf's Evid. s. 514).
In France all demands for the extradition of fugitive criminals must emanate from the executive authority of the demanding State, and be authenticated by the same (Ortolan, Le Ministere public en France, tom. ii. &c., p. 231; Foucart, Droit Pub. s. 211).
So it is in Spain, in the cases where that Government either claims or concedes the extradition of criminals, fugitives from justice. (Escriche, s. voc. Extrad.)
Without troubling you with further citations as to the practice of our own or of other Governments in this respect, it may be stated as the general rule, that the Government, of which extradition, whether comity only (Kluber, s. 66; Marten's Precis, s. 101), or by treaty, is demanded, before it can be called upon to act, must have submitted to it reasonable prima facie evidence of the guilt of the party accused, and the evidence thereof certified, as well as the demand made, by the executive authority of the demanding State.
The document submitted here is deficient in all these respects. It is not what there ought to be in this case—an exemplification of the record of the accusation and conviction of the accused; and the document is not properly authenticated by the Government of the Elector of Hesse-Cassel.
I suggest also for information, that if such cases were presented in this case as would properly justify the President in opening to him access to the courts of the country, and if the proper court, after hearing of the case, should thereafter return a certificate to the President in the terms of the Act of Congress making provision for the execution of extradition treaties (Act of August 12, 1818, 9 Stat, at Large, p. 303), then an agent of the Government of Hesse would be necessary to take possession of the criminal and convey her to Hesse; and the testimony of such an agent might prove to be convenient, or even indispensable, at the preliminary examination of the case before the competent judicial tribunal of the United States.
Hon. Wm. L. Marcy, Sec. of State. C. Cushing.
(8.) Opinion of the same Attorney General on the same subject (i).
Attorney General's Office, June 18, 1855.
Sir,—I have the honour to acknowledge the receipt of your note of this date, communicating the application of M. Boilleau, Charge" d'Affaires of France, for authority to pursue the extradition of one Sucillon, a French subject, actually in New York, charged with the crime of forgery committed in Franca
This application comes in due form through the Ministry of Foreign Affairs of the French Empire, and is founded on a mandat d'arret, issued upon suitable evidence, by the proper judicial authority in France, and setting forth the crime imputed to Sucillon.
The case comes within the treaty between the United States
(i) 7 Attorney Generals' Opinions, 285.
and France of November 9, 1843 (8 Stat, at Large, p. 581); and the only question is of the sufficiency of the papers.
It is clear that the mandat a"arret alone, without the proof on which it is founded, would not suffice to constitute that "evidence of criminality " which the statute requires as the basis of criminality —the certificate of the examining magistrate, upon which alone the final order of extradition is to be granted by the department.
I think, however, that the documents are sufficient to justify the preliminary action of the President, and therefore advise the delivery of the usual warrant to M. Boilleau. That will enable him to secure the person of the alleged fugitive from justice, leaving the ulterior question of his actual extradition to depend on the full evidence of criminality, which, as appears by the despatch of the Minister of Foreign Affairs, is now on its way from France to the United States.
Hon. Wm. L. Marcy, Sec. of State. C. Cushing.
(9.) Opinion of the same Attorney General on the same subject (i).
Attorney General's Office, October 4, 1855.
Sir,—I beg leave to refer to my communication to you of the 18th of June last, on the subject of the application of the Charge d'Affaires of France in the case of Sucillon, an alleged fugitive from the justice of that country, and to say that M. Boilleau, having received a new set of papers in the case, suggests, in compliance with the advice of the Counsel for his Government—in which, by letter addressed to me by the District Attorney of the United States, it appears that the latter concurs—a desire to obtain from the State Department a new letter of authorisation to proceed in the case before the proper Commissioner.
I do not think a second document of this nature necessary, because, in my opinion, the first is valid and effective, until its virtue shall have been exhausted by the judicial examination of the party accused, and his release or condemnation; but I conceive it to be the duty of the Government of the United States to afford to other Governments every lawful facility, even though it be a superfluous (i) 7 Attorney Generals' Opinions, 537.
one, in the execution of our treaty stipulations in this respect, and more especially to aid in removing those obstacles of pure technicality and form, the frequent recurrence of which, under the wretched system of criminal jurisprudence introduced into the United States from Great Britain, tends to render the administration of justice a game of sharps between the injured community on the one side and the criminal violation of the laws on the other side, in which contest chicanery too frequently gets the better of truth; and I therefore most respectfully recommend that new letters be issued in this case upon the papers now presented by M. Boilleau.
The object to be accomplished in all these cases is alike interesting to each Government—namely, the punishment of malefactors, the common enemies of every society. While the United States afford an asylum to all whom political differences at home have driven abroad, it repels malefactors, and is grateful to their Governments for undertaking their pursuit and relieving us from their intrusive presence.
Hon. Wm. L. Marcy, Sec. of State. C. Gushing.
(10.) Opinion of the same Attorney General on the same subject (i).
Attorney General's Office, February 28, 1856.
Sir,—The question of extradition presented by Mr. Joseph's papers is this:—
By a statute of the State of California, the act of fraudulent breach of trust by private persons is declared to be "grand larceny," and indictable as such. Mr. Joseph seeks the extradition of parties who have been indicted under this statute in the State of California, and who, it is supposed, have taken refuge in France.
It is clear that the act indicted is not embraced within the terms of the convention between the United States and France for the reciprocal surrender of criminals, and which of this class of offences applies only to embezzlement by public depositaries.
But Mr. Joseph supposes that the case may be provided for by the article additional to the above convention, which speaks of (i) 7 Attorney Generals' Opinions, 643.
"crimes included under the French law, in the words vol qualijie crime." Beyond all doubt he is mistaken in this supposition. The word crime in the French "Code Penal" nearly corresponds to our technical term felony, while the French word delit is nearly equivalent to our law term misdemeanor. (Code Penal, dis. prel, art. 1.) And in order to be qualified as crime, a vol must be committed with violence or menaces, or it must be committed in a dwelling-house, with circumstances either of night and of escalade, or of " effraction." Such, indeed, is the express tenor of the French duplicate of this additional article.
In truth, the case presented by Mr. Joseph is nothing but the "abus de confiance" of the laws of France. (Code Pdual, liv. iii. tit. 2, s. 2, § 2.)
I do not understand how it happened that, in the English duplicate of this article, this imperfect indication of a class of cases by description in French technical terms, was inserted. A literal translation of the corresponding clause in the French duplicate would have been a much better mode of expressing the undertaking of the United States in the premises.
Hon. Wm. L. Marcy, Sec. of State. C. Cushing.
(11.) Opinion of the same Attorney General on the same subject (i).
Attorney General's Office, September 30, 1856.
Sir,—Your communication of yesterday encloses the letter of the Count de Sartiges, envoy of the Emperor of the French, requesting "the extradition of six individuals, who, after having abstracted values for a considerable sum from the chest of the Northern Eailroad Company, have taken refuge in the United States."
M. de Sartiges suggests that the administration of the Northern Eailroad is an establishment authorized by the French Government, svbventioned by it, and for these reasons entering into the class of public establishments mentioned in the convention between France and the United States.
(i) 8 Attorney Centrals' Opinions, 106.