Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1864-06-09
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Ject and master OF q BRUSH schooner, aiueu ny
six accomplices, likewise British subjects, ran
away with the vessel into port of the State Of
Maine, where she was seized by officer for hav
ing entered in violation Of our laws. The British
Government thereupon demanded that the vessel
and cargo should be restored to their lawful owner,
and that the British subjects who had committed
the offence in question should be delivered up for
trial On this state of facts Mr. Attorney Gene
raj WRIT, in a most able and elaborate opinion,
held that the ship and cargo should be restored,
but that, in the absence of treaty stpulations and
municipal regulations, there no power in the
President to surrender the alleged conspirators
who had run away with the schooner. He wrote,
| II Opinions of Attorneys General, PIP. 5l9-52l j
"The truth to be, that this duty to deliver up
criminals is aud uncertain as to the of on
which rests Of imperfect nature obligation
is nconv enenty encumbered in practice by the requ
son that the party demanded shall have been convicted
full and Judicial proof such proof may be called
for by the nation whom the demand made and the
usage to deliver to refuse being perfectly at the option
of each nation has been various and consequently
uncertain in its action that these combined have
led to the practice OF providing by treaty for all
which nation wishes to give herself right 10 call for
iugtives from her justice AS instance of this refer
you to the treaties made by Great Britain with Denmark
|
| in 1910; with Sweden. in 1861 &c.
La our treaty of 1894 with Great Britain the 9Th
article provided for the in which the contracting
parties agreed to bind themselves to surrender criminals
and the degree of proof which should be sufficient to i'm
pose the obligation to surrender. The two
murder and forgery; and the proof such should be-
sufficient to justify arrest according to the laws of the
country in which the demand made This article
by the terms of the treaty to continue in force for twelve
years only that to the parties agreed TO remain
bound to this mutual surrender of criminals in the two
specified for twelve years, and no longer. The
twelve ye have expired and with Them p my opinion
has expired the right to make the demanf in the
| upon the whole, am of the opinion that there is
nothing in the law of nations explained by the usage
and practice of the most respectable among them which
imposes obligation to deliver these persons
more especially on the very imperfect proof of their guilt
rather the total absence of every thing like Judicial
proof on which the application is founded. And this con
cusion drawn from examination of the general law and
usage of nations derives confirmation the particular
from the expired article the treaty with Great Br
| tain, to which have adverted.
IL am further Of the opinion, that if by the laws
and usage of nations the obig ,tou existed, and
perfect obligation, aud the prof which is ortd of the
guilt Of theaccused also sats6ed the acquisitions of thai
law still the President has no p0mer to make the de 10
The Constitution and the treaties and acts IF Congress
made under its outaoriy comprise The ohoe Of the Pesi
dents poncrs Neither Of these contains any provision on
this subject He has no pouoer to arrest except for
the pi0tstion of Laps treaty act of Con
gres might cothe him with the power to and de-
liver up fugitive criminals from abroad and is perhaps
10 Do desired tnht eucn power H d.
not 1T his discretion for, although not bound to de
liver up such persons, it might very often be eIped
to do It, There could certainly be objection To toe
exercise of such power in like the present. 1t
would violate clam which these fugves have US"
In the year 1881 Attorney General TANEY, the
present Chief Justice, was called to express an
opinion whether the President of the United States
could return to Holland for trial person alleged
to have stolen some diamonds of the Princess Of
Orange. He gave it as his opinion that, in the
absence of treaty stipulation, the President
would not be justified in directing the surrender
of the person" r. Opinions of Attorneys Gene
raj, p. 452.
To the same effect Attorney General fancy
wrote follows, under date of April Is, 1888, in
respect to application of the King of Portugal
for the delivery of two seamen who, it was alleged,
had committed the crime of piracy. r. Opinions
of Attorneys General, p. 559:]
There is law of Congress which authorizes the
President to deliver up any found in the United States
who is charged with having committed crime against
foreign nation and have treaty stpuations with
Portugal for the delivery Of offenders Ia such Of
things has always been held that the President
no authority to deliver up the offender"
In the year 1S4l, while Mr.. SEWARD, the pre-
sent Secretary of State, Governor of the State
Of New York, he addressed communication to
Daniel Webster, then Secretary of State under
President Tyler, inquiring whether it was lawful
for him, as Governor of New York, to surrender
one Dewitt, fugitive from justice, demanded of
him by the Governor General Of Canada. The
question being referred by Mr.. Webster to the
office of the Attorney General, Mr.. LEaARE held
as follows: rs Opinions of Attorney General,
p. gel.
81 think from the whole argument Of the bench IN the
of Holmes Jennson, Ia Peters $40, we may con
slider it law: LIST That state without the
sent Of Congress- enter into any agreement compact
express implied to deliver up fugtives from justice
from foreign state who may BE- found within its limits
81 That according to the practice Of the Executive De
partent appears from the official spondence th
Of Mr. JEFF ard Mr.. Clay, predecessors 10 oce,
the President considered authorized s absence
Of any cypress provision By treaty order the differing
of fuQiiues from juses. In the absence therefore, of
treaty stpulsons of opinion that is necessary
to the whole matter tn Congress and submit TO it's
wisdom the proprety Of passing act 10 authorize such
OF the States may choose to make arrangements with
the Cove rnment If Canada any other foreign State for
the mutual eItradtion Of fugves to enact laws that
effect, acts approving such laws already have
been passed the several States to that effect.
Whatever / may think Of the power OF the Federal
Executive in the premises, this qu4 ion /
consider the rules laid down by Mr. Jefferson and sane.
toned after the lapse Of upwards Of thirty by
Administration, soenty settled to be departed
from"