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(13.) Opinion of the same Attorney General on the same subject (i).
Attorney General's Office, January 10, 1857.
Sir,—I have received your note of this date, referring to me the question of the issue of a mandate for the institution of proceedings in extradition on the demand of the French Government in the case of sundry persons, and among others, Edouard David.
The present demand of extradition in his case, though for a different crime, is, in effect, a renewal of that made by the Count de Sartiges on the 23rd of November, acquiescence in which at that time was postponed, because the mandat d'arret described him as "commergant a New York," and it did not otherwise appear that the acts of participation in crime with which he was charged had been committed in France.
These difficulties are removed by the communication of Count de Sartiges of the 9th instant.
David, it now appears, is a citizen of France, charged with having participated with Carpentier and the others in a series of acts of forgery which continued through a considerable period of time; and during the progress of these incidents, but after many acts of crime had been consummated, David left France and came to the United States.
The present proofs, therefore, dispose of the doubt previously existing, but suggest a new one, in the fact that David's departure from France had no ostensible or ascertained connection with the forgeries charged, it having been anterior to the detection of the forgeries, and of course to criminal proceedings on the part of the Government. He left France, it appears, avowedly for the cause of bankruptcy.
I am satisfied however, on reflection, that this fact is no impediment to the extradition demanded. The language of the convention is,—" persons who . . . shall seek an asylum, or shall be found in the territories of the other" (Art. 1). It was the manifest intention of the high contracting parties to provide for just such cases as this; that is, for the case of a crime committed, but not discovered, before the party leaves the country in which it is committed,
(i) 8 Attorney Generals' Opinions, 306
whether he leave under apprehension of the detection of such crime, or by reason of some independent impulse or inducement.
I advise, therefore, accession to this demand on the part of France.
Hon. Wm. L. Marcy, Sec. of State. C. Cushing.
(14.) Opinion of the same Attorney General on the same subject (i).
Attorney General's Office, January 1857.
Sir,—In a previous letter of this date, I referred to so much of your communication of the same date, submitting demand for the extradition of Carpentier, Louis Grelet, Eugene Grelet, Parrot, Felicite Dobut, and David, preferred by M. de Sartiges in behalf of the French Government, as regarded certain peculiarities in the case of David.
I now reply on the general question of the issue of process against all the parties, either as principals or as accomplices in the commission of the crime of forgery, one of the crimes enumerated in the convention between the United States and France of November 9, 1843—that the evidence exhibited, being the documents referred to in the affidavit of M. de Montholon, Consul-General of France at New York, and the supplementary declarations of M. de Sartiges himself, are sufficient to justify the desired action of the President.
Hon. Wm. L. Marcy, Sec. of State. C. Cushing.
(15.) Case and Joint Opinion of the Attorney and Solicitor General, Sir Frederick Thesigeb and Sir Fitzroy Kelly, on the construction of the Treaty of Washington and the Statute 6 cfc 7 Vict. c. 76. 1846. 1. Whether the Treaty of Washington, and the provisions of the statute 6 & 7 Vict. c. 76, extend to offences committed before the date of the treaty and the date of the passing of the Act?
There seems to be nothing in the Treaty of Washington, or in the Act of Parliament founded upon it, to prevent their extending to offences committed before the date of the treaty aud the time
(i) 8 Attorney Generals' Opinions, 307.
of the passing of the Act. In the case laid before the Law Officers in September 1843, the forgery was committed prior to the treaty, and they considered there was sufficient to justify the Secretary of State in issuing his warrant in pursuance of the requisition. Their attention, however, was not called to the time of the commission of the offence, and they expressed no opinion upon the subject. There is a marked difference between the French and American treaties and acts relating to them respectively on this point.
2. If they should be of the opinion that the treaty and the Act are retrospective, and apply to Clinton's case, whether he can be again legally proceeded against under a fresh warrant?
These is nothing to prevent Clinton being legally proceeded against under a fresh warrant.
3. Whether there be any, and what, course of proceeding which they can advise to be taken against Clinton, so that the legality of his apprehension may be finally brought before the Judges of the Supreme Court for their decision?
We can suggest no mode by which it is quite certain that the legality of Clinton's apprehension would be brought before one of the superior courts. But we should be inclined to think if he be arrested' in term time, and were to sue out a habeas corpus before a single judge, such judge would, if pressed to do so on the part of of the Crown, refer the matter to the full court.
Temple, March, 1846. Fitzroy Kelly.
(16.) Joint Opinion of the Attorney and Solicitor General, Sir A. E. Cockburn and Sir Richard Bethell, on the question of surrendering to the American Consul a person charged with Manslaughter.
We are of opinion that Couolly is liable to be tried in this country on a charge of manslaughter. We think he ought not to be surrendered to the American consul—
1. Because the offence which he has committed is within the jurisdiction of our own courts, and ought to be tried by them.
2. Because by 6 & 7 Vict. c. 76, upon which the power to surrender American subjects rests, manslaughter is not one of the offences in respect of which extradition can take place.
A. E. Cockburn.
(17.) Case and Joint Otinion of the Queen's Advocate, Sir J. D. Harding, and the Attorney and Solicitor General, Sir Fitzeoy Kelly and Sir Hugh Mcc. Cairns, on the surrender by the United States Government of a person charged with being accessory before the fact, in this country, to a Murder in France.
Whitehall, March 12, 1858.
Sir,—I am directed by Mr. Secretary Walpole to request that you will submit the following statement to the Attorney and Solicitor General and the Queen's Advocate, viz.:—
A warrant has been issued by a police magistrate for the apprehension of Thomas Allsop, a British subject, upon the charge of being accessory before the fact, in this country, to the murder, by Oreini and others, Italians, of a Frenchman in Paris. Allsop has escaped to the United States of America; and it is suggested that his extradition may be demanded of the American Government under the treaty between Her Majesty and the United States made in the year 1842.
And that you will move the Attorney and Solicitor General and the Queen's Advocate to refer to the treaty in question, and to advise whether Allsop is a person charged with the crime of murder committed within the jurisdiction of the British Crown within the meaning of the convention, whose extradition may be properly demanded.
Opinion.—We are of opinion that Allsop is not a person charged with the crime of murder committed within the jurisdiction of the British Crown, within the meaning of the treaty of 1842, and that his extradition cannot properly be demanded of the United States under that treaty.
J. D. Harding. Fitz Boy Kelly. H. McC. Cairns.
NOTES TO CHAPTER X.
There is a difference of opinion amongst jurists whether extradition, independent of treaty, is a matter of duty or discretion only. If the latter, then the refusal to surrender fugitive criminals is no ground of offence to the State demanding it. The former opinion is maintained hy Grotius, Heineccius, Burlamaqui, Vattel, Rutherforth, Schmelzing, and Kent; the latter by Puffendorf (I), Voet, Martens, Kltiber, Leyser, Kluit, Saalfeld, Schmaltz, Mittermeier, and Heffter: see Wheaton, s. 115, and Dana's note (73), Ibid. 8th edit.
Woolsey says (Internat. Law, s. 79): "We conclude that there is a limited obligation of nations to assist each other's criminal justice, which only treaties, expressing the views of the parties at the time, can define." Heffter says (Droit Internat. p. 128): " Early writers, such as Grotius and Vattel, declared extradition obligatory; but the negative is held by modern writers, and has prevailed in practice." Phillimore says (Internat. Iaw, i. 413): "The result of the whole consideration of this subject is, that the extradition of criminals is a matter of comity, not of right, except in the cases of special convention."
The constitutional doctrine in this country is, that the Crown may j make treaties with foreign States for the extradition of criminals; but those treaties can only be carried into effect by Act of Parliament, for \ the executive has no power, without statutory authority, to seize an alien here and deliver him to a foreign power. In a debate in the House of Lords, on February 14, 1842, on the case of the Creole, Lord Brougham said: "What right existed, under the municipal law of this country, to seize and deliver up criminals taking refuge there? What right had the Goverment 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." Lord Denman said he believed that all Westminster Hall, including the judicial bench, were unanimous in holding the opinion 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 other Law Lords entirely concurred in this opinion: Hansard's Pari. Deb. vol. lx. pp. 317-327. And the law is the same in the United States : Kent's Com. ss. 39-42, 8th edit.
(i) In his Law of Extradition, p. 3, Mr. Clarke points out that Puffendorf (in the passage to which reference is usually made) does not explicitly deny the right. But in his De Officio Hominis et Civis juxta Legem Naturalem, lib ii. c. 16 (quoted by Mr. Clarke), he says, as to the question whether the harbouring of criminals is a ca*m belli: " Id magis cx peculiari pacto inter vicinos et socios, quam communi aliqua obligatione provenit," which surely amounts to a denial that extradition is a matter of international duty.