Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1864-06-09

Under the Roman Empire this right of having a
criminal RENTED for trial to the proper forum
erinainas was unauestoned, as it resulted from the
very nature of the universal and common dominion
Of the Roman laws.
And, at later period, considerations of human
lty, such now invoked to sanction the secret
arrest and informal surrender of Col. Arguelles,
were held among the Sovereigns of Europe to be
Legitimate grounds on which they might mutually
ask and allow the remitter of alleged criminals.
But In more modern times since in the progress of
civilization there has been greater articulation in
the powers of Government, SO that "the Govern
ment" is no longer embodied in the person of the
Executive alone, there has been corresponding
change in the principles and usages regulating the
surrender of criminals escaping from one country
into another. Criminals are still surrendered by
ae sovereign authority of each country, but as in
free and constitutional governments this sovereign
authority no longer resides in the person of the
Executive alone, the machinery for their legal
surrender has come to- partake of the complexity
resulting from the partition of powers in such
Governments In this country, for instance, the
Executive is only part of the Government" and,
as such, has no plenary power by virtue of which
to assume discretionary Jurisdiction in regard to
any subect-matter as to which such discretion has
been expressly precluded by the letter of the law
:, whose minister he is.
! We shall proceed to show that the matter
and manner of the extraditon of alleged fugi-
tives from justice SO regulated by general
| ;pla of oda ;pfa Il Law nd bu
express statutes of our National Legislature as to
deprive the Executive of all original and indie
pendent authority in the premises Any assump-
ton of such authority is not only without law, but
is in direct contravention Of both public and mu-
nicipal law.
The legal traditions of our Government on this
subject are ancient, uniform, and undisputed., AS
early as 1892, Mr.. Jefferson, while Secretary of
State under President Washington, Authorized our
Ministers at the Court of Spain, Messrs. VIM. Car
michael and VIM Short, to negotiate treaty with
that Power for the mutual delivery of persons
charged with the crime of murder. (See Amer-
can State Papers, Foreign Relations, p 257) 1t
was stipulated in the project of the convention
then proposed by Mr.. Jefferson that the person
authorized by the Spanish Government to pursue
the alleged murderer in the United States should
apply to "any Justice of the Su; RENE Court of
the United States, or to the District Judge Of
the place where the fugitive is and should
exhibit proof, on oath, that a murder had been
committed by the said fugitive within the territory
of the said Government" The Judge was there
upon to be empowered to issue warrant for the
arrest Of the fugitive, and "a special court of in
quiry" was to be held, and grand jury summon
ed thereto, charged with the duty of inquiring
whether the fugitive had committed the crime OF
murder; and, on the finding of true bill, the
| judge was to order surrender Of the fugitive to
the Spanish Government. In the memoranda &C
companying this project of the convention Mr.
Jefferson gives his reasons why the Government of
the United States at that date was unwilling to
provide for the delivery of others than persons
charged with the crime of murder. And this de-
livery, it is seen, to be surrounded with all the
guards of preliminary judicial inquiry. 1t is
needless to add that no such convention as he pro-
| jected was ever formed between our Government
and that of Spain this subject, and we have ad-
verted to it only for the sake of ascertaining at
the threshold of this inquiry the principles on
which the extradition of alleged criminals was
based by our Government
In the 9th article of the treaty negotiated by
John Jay with the Government of Great Britain
in the year 1894 the same principles were solemn
" recognised. The article reads as follows:
at further agreed that bis Majesty and the United
States, mutual acquisitions by them respectively
by their spectve Ministers officers authorized TO
make the same will deliver up TO justice all persons who
b-ng charged with murder forgery, committed within
the Jurisdiction of either, shall seek asylum within any
OF the countries OF the other; provided that this shall Only
be done such evidence of crminaty according to
the Of the place where the fugitive person
charged shall be found would justify his apprehension and
comm ment for trial If the offence had there been CON-
mtted The expense OF such apprehension and delivery
shall borne and betrayed by those who make the
QUESTION and receive the fug tive"
Under this article Of jays treaty one Thomas
Nash, alias Jonathan Robbins, was delivered to
the British authorities by Judge Thomas Bee, Dis
trict Judge Of the United States in the year 1909
The transaction caused much excitement at the
time, as Nash represented himself to be native.
born citizen Of Connecticut, and the case ha. been
frequently reviewed in Congress and in the public
press Of the country. The correspondence and
proceedings had in the case msyb be seen in the
q American State Papers: Foreign Relations ~