Year: 1874




Belgium. No treaty for the extradition of
fugitives from justice then existed between
Belgium and the United States. Vogt was
demanded, however, by the government OF
Prussia upon the ground that it had the right
to bring back TO its own territory one of its
subjects who was charged with having COM
mitted crime in any part of the world. Our
Department of State did not yield to this de-
mand. and vogt was set at liberty. He was
then arrested in civil suit, from which he
has recently been discharged. He is now
again arrested upon demand for his extra
dition under a treaty made between Belgium
and the United States since the commission
of the alleged murder and robbery and since
his escape to this country. Whether he can
be surrendered under this treaty depends upon
the bearing of certain provisions in our con-
stitution upon the treaty-making power.


That nation may make treaty for the
surrender of a particular individual, or one that
will have retroactive operation upon par
ticular case, when the treaty making power is
not restrained by the fundamental municipal
law, seems to be clear Every nation has the
power to exclude such foreigners as it pleases
from its dominions, and this power Of exclu-
sion embraces right to surrender any indi-
vidual TO his own government for reasons that
seem fit. But it happens that the treaty-mak-
ing power of our government is regulated by
certain peculiar provisions in our national
constitution. BY our constitution treatias ore
made the supreme law Of the land, and it is
expressly provided that no er post .facto law
shall be passed II this latter provision ap-
plies to the treaty-making power it may follow
that treaty operating IL S.ca ard, 50 as to
affect on individual in a manner in which
he could not be affected without the
treaty, is excluded. On the other hand, if
the provision against er post fdcto laws applies
only to acts of the Legislature the treaty.
making power is not restricted by it. Whether
this is so depends partly upon the sound legal
definition Of er post facto laws and partly upon
the meaning Of the provision which makes
treaties the supreme law Of the land 1t has
hitherto been the doctrine Of all our best con.
stitutonal jurists that while treaty is be-
tween most countries mere executory con-





that with us treaty is equivalent to an act Of
the Legislature whenever it operates of itself
without the aid of any Legislative provision.
Such is the view long since enunciated by the
Supreme Court of the United States treaty
which stipulates for the surrender of fugitives
from justice operates Of itself as law
governing the personal rights of any per-
mi, xusf 70


that is to say it subjects him to the
necessity of being surrendered. Congress
may legislate to provide the machinery for
ascertaining the facts which bring him within
the treaty; but it is the treaty, as law, that
deprives him of the right Of remaining in the
country and subjects him to the extradition.
In this view, then, of the operation of
treaty, the question arises in Vogt's case
whether treaty which was made after his
alleged offence was committed and after he
arrived here, and which would deprive him
of his right to remain and subject him to
extradition, is an er post tacto law, prohibited
by our constitution. That such a treaty is q
law would seem to follow from the fact that it
affects him in personal rights which would
otherwise belong to him. Whether it is an
er post Jacto law in its application to him
depends upon the inquiry whether that
class Of prohibited laws embraces only
our own criminal legislation, designed for
the punishment of crimes committed In our
own jurisdiction, or whether it also embraces
laws which subject individuals to depriva-
ton of rights previously belonging to them,
or which impose upon them liabilities to
which they were not previously subject Gen.
orally speaking on ez post facto law is law
which Furnishes as crime something that was
not crime when the aot was done. In this
case the treaty. assuming it to be law. does
not punish an act, but it takes away right
and subjects to liability. It RENTS the
party to another jurisdiction for trial and
punishment, when he would have had right
to remain here If the treaty had not been
made. But the difficulty Of the case is that
all treaties which affect the rights of indi-
viduals change the rights which existed before
the treaty and unless this man can make it
appear that o treaty which operates to subject
him in the hands Of q foreign Power to trial
and punishment to which he could not have
been subjected without the treaty is in the
sense of our constitution an ca post tacto law.
we fear that he will have to be surrendered.
But, Of course, he will not be surrendered
without very grave consideration Of the new
and difficult question that has arisen. When
the State Department comes TO act finally
upon this case-supposing that vogt is held
by the Commissioner-it will have to consider
whether, in criminal case, treaty that was
made after the person who is demanded under
it had committed the crime and had arrived
in our territory partakes SO far in its appli-
cation to him, of the nature of an ex post facto
law that it must be regarded as prohibited by