observes on one occasion, "does not rest in the discretion of the magistrate; there may be cases in which three days might not be a reasonable time, and yet there may be cases where three months might be reasonable" (Davis v. Capper, 4 Carrington & P. 443 n.). But the magistrate acts on the question of remanding under the peril that, on trespass being brought, a jury with proper instructions from the Court shall find the time of imprisonment to have been unreasonable (Davis v. Capper, ubi sup.; Davis v. Capper, 10 Barn. & Cr. 28), which the more conclusively shows that the whole question here is within the jurisdiction of Mr. Justice Edmonds. And if, having once decided the question of criminality, and made report thereon to the President, the Judge should be of opinion that it is too late for him to entertain a motion for delay, and to remand the party until further evidence be procured, it does not seem to me that his doing so can be subject to any just exception on the part either of his own Government or that of Great Britain.

Hon. Wm. L. Marcy, Sec. of State.

C. CUSHING.

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

Attorney General's Office, April 21, 1854.

SIR, Your letter of the 19th, referring a case of demand of extradition, would have received my attention immediately, but for my having been out of town for the last three or four days.

It communicates an application from James M. Ray, of the State of Indiana, for a requisition on the British Government to deliver up one Hamilton, charged as a fugitive from that State; and submits the question, "Whether the evidence here adduced is sufficient to justify the department in making the desired requisition ?"

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No evidence is adduced except an affidavit made by Mr. Ray himself, before a notary public, that at a certain time, Hamilton feloniously stole, from the State Bank of Indiana, 1450 dollars in bank-notes of the State Bank," and so forth, and that Hamilton had probably fled into the British provinces.

(1) 6 Attorney Generals' Opinions, 431.

If this application depended on the question submitted, it would not be in my power to say that the evidence is sufficient, because it ought to have been passed upon by an examining and committing magistrate before being submitted to the President.

That defect in the papers filed might be cured; but there exists in the case another difficulty which seems to be insuperable.

The only crimes for which extradition is provided are "murder and forgery," by the treaty of 1794 (8 Stat. at Large, p. 129); and "murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers," by the treaty of 1842 (8 Stat. at Large, p. 576).

The crime imputed to Hamilton by the affidavit of Mr. Ray is larceny, and that is not within the treaties.

It is the established rule of the United States neither to grant nor to ask for extradition of criminals as between us and any foreign Government, unless in cases for which stipulation is made by express condition. I cannot therefore advise that in the present case the desired requisition be made on the British Government.

Hon. Wm. L. Marcy, Sec. of State.

C. CUSHING.

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

Attorney General's Office, November 2, 1854. SIR,-I have received your communication of yesterday's date, transmitting to me the note of Mr. Hulsemann, of the Austrian Legation, in behalf of the Government of the Elector of Hesse Cassel, asking for the extradition, under the treaty of July 16, 1852, of one Maria Theresa Geêk, said to be convicted of murder within the territory of the said Elector, and a fugitive from the justice thereof, who it is supposed may have taken refuge in the United States.

The case, if duly proved, comes clearly within the purview of the treaty; and the gravity of the crime alleged to be perpetrated by the party, in addition to the obligations of the treaty and the sound reasons of public policy on which that is founded,

(1) 7 Attorney Generals' Opinions, 6.

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 Ministère 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 (Klüber, s. 66; Marten's Précis, 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 (1).

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, Chargé 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 France.

This application comes in due form through the Ministry of Foreign Affairs of the French Empire, and is founded on a mandat d'arrêt, issued upon suitable evidence, by the proper judicial autho-. rity in France, and setting forth the crime imputed to Sucillon. The case comes within the treaty between the United States

(1) 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 d'arrêt 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 (1).

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 Chargé 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 (1) 7 Attorney Generals' Opinions, 537.