Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1886-12-10
EXTRADITION OPINION
JUSTICE MILLER ON THE LAW QUESTION IN
TIP CASE THRTREATY0 lS42


the United States against William Rausch-
er. After statement of the facts In the
case and citation of the questions Ger
tilted by the court below, Justice Miller
reviews carefully the history of extradi-
ton proceedings in this and other coqn=
tries and discuSsestbequestions that have
arisen in connection Herewith. He then
takes up the specific treaty which is to be
construed in this case, namely, the treaty
of 1912, between the United States and
Great Britain, and speaking for the Court,
says:
"The treaty of 1912 being, therefore,
the supreme law of the land, we proceed
to inquire, in the first place, into the true
construction of that treaty. We have al
ready seen that, according to the doctrine
of publicists and writers on international
law, the country receiving the offender
against it's laws from another country,
under that law had no right to proceed
against him for any other otfense than
that for which he had been delivered up.
This is principle which commends itself
as a necessary adjunct to the discretionary
exercise of the power of rendition, because
it can hardly be supposed that a govern
ment, which was under no treaty Obliga-
ton, nor any absolute obligation OF public
duty, to seize q person who had found an
ASYLUM within Its bosom and turn him
over to another country for trial, would
be willing to do this, unless case was
made of some specific offence of a charac-
ter which justified the government in de-
priving the party of his asylum.
IT Is UNREASONABLE
that the country of the asylum should be
expected to deliver up such person to be
dealt with by the demanding government
without any limitation; implied or other
wise, upon its prosecution of the party. In
exercising its discretion, it might be very
willing to deliver up offenders against
such laws as were essential to the pro-
lection of life, liberty and person, while 1t
would not be willing to do this on account
of minor misdemeanors or of a certain
class of political offences in which the
government of the asylum would have no
interest of sympathy. Accordingly it has
been the policy of all governments to
grant an asylum to persons who have fled
from their homes on account OF
political disturbances, and who might be
there amenable to laws framed with regard
to such subjects and to the personal ale
glance of the party. In many of the trea-
ties of extradition between the civilized
nations of tie world there is an express ex-
clusion of the right to demand the extra
ditions of offenders against such laws,
aud in none of them is this class of of
fences mentioned as being the foundation
ofextraditiOn proceedings.
'Indeed, the enumeration of offences in
most of the treaties and especially in the
treaty now under consideration, is so spe-
cific and marked by such clear line in re-
gard TO the magnitude and Importance oI
those offences, that it is impossible to give
any other interpretations to it than Of the
exclusion of the right Of extraditiOn for all
others 1t is, therefore, very
clear that this treaty did not
intenu to depart in this respect from
THE RECOGNIZED PUBLIC LAW
which had prevailved in the absence o.
treaties, and it was not intended that this
treaty should be used for any other pur
pose than to secure the trial Of the person
extradit c d for one of the offences enumer
ated in the treaty. This is not only ap
parent from the general principle that the
specific enumeration OF certain matters
and things implies the exclusion of all
Others, but the entire face Of the treaty
including the processes by which it is to
be carried into effect, confirms this view
of the subject ~
The learned Justice then points out the
| fact that if the person eXtradicted could
be properly tried for any other offense thar
that for which he was demanded, and tha
which was described in the treaty, ther,
would be no need of describing any specific
onense in making the demand. And ye'
it is unreasonable, he says, to suppose thai
mere demand without specification!
would deceive any serious attention.
1t cannot be held, Justice Miller says
that the provisions of such treaty as thii
are obligatory alone on the State tha
makes the surrender of the fugitive, anC
that that the fugitive passes into th'
country which charges him with thi'
offense, free from all the positive require
ments and Just implications of the treaty
under which this transfer of his person
takes place. A moment before he is under
the protection of government which ha:
afforded him an asylum
FROM WHICH HE CAN ONLY BE TAKEN
under very limited form of procedure
and a moment after he is found in tn,
possession of another sovereignty by vir
tue of that proceeding, but diyested of al
| the rights which he had the moment be
fore, and of all the rights which the Law
governing that proceeding was intende d u
secure.
''If upon the face of this treaty it coult
be seen that its sole object was to Sc
cure the transfer of an individual from the
jurisdiction Of one sovereignty to that o.
another, the argument might be sound
but as this right of transfer, the right tC
demand it, the obligation to grant
the proceedings under which il
takes place, all show tina
it is for a limited and definite purpost
that the transfer Is made, it is impossi
BILE TO conceive OF the exercise Of .iurisdic
ton in such case for any other purpoS'
than mentioned in that treaty and ascer
tanned By the proceedings under which
the party is extradited, without an impli
cation of fraud upon the rights Of th'
party extradited aud of bad faith to th'
country which permitted his extrsdiction
No such view Of solemn public treaties be
tween the great nations of the earth cal
be sustained by tribunal called upon Z
give judicial construction to them" If
however, Justice Miller continues, ther
should remain any doubt as to the con
struction of the treaty, it must be set a
rest BY the language of the acts Of Con
gress embodied in sections 5,272 and :, ~;
Of the Revised Statutes.
MEANING OF THE STATUTES
"The obvious meaning" he says, 20
these two statutes, which have reference t
all treaties Of extradition made By thl
Government, is that the party shall not b