correspondence with the minister of the Netherlands, at his request, to the gov ernor of the State of New York, and that magistrate (Governor Throop) issued his executive warrant for the delivery of the criminal to the minister of the Netherlands, "to the end that he may be placed under the jurisdiction of the said kingdom of the Netherlands, to be dealt with for his supposed crime, according to the laws and justice of the said kingdom."

In the State of Vermont a like habit of extradition had sprung up, and there the governor, without any law of the State on the subject, and, of course, without treaty, as a direct exercise of authority under the law of nations, and not forbidden to the States by the federal Constitution, made the extradition by his executive warrant. Upon habeas corpus sued out by the criminal, upon solemn argument the supreme court of Vermont, in full bench, held the extradition to be in pursuance of the law of nations, to be valid without legislation, and to be competent to the State under the Constitution of the United States. The judgment of the State court was brought up for review to the Supreme Court of the United States, and the opinion of the learned justices of that court will, by a little attention to the true point in controversy, be seen to bear upon the point we are now considering, viz., whether a treaty is the source, under the Constitution of the United States, of the executive authority to surrender criminals, or whether the law of nations supplies that authority to the nation, and the Constitution itself confers the exercise of it upon the President.

The point in judgment in Holmes vs. Jennison (14 Pet. Rep., 649) was whether the States had authority to surrender criminals when the United States had made no treaty and no law upon the subject. It was conceded on all hands that this authority belonged to sovereignty, and that its exercise remained with the States unless, at the time of such exercise, it rested with the United States under the Constitution, and unless its concurrent exercise by the States was incompatible with its possession by the federal government. It was apparent, therefore, that if a treaty was necessary to put the federal government in possession of this authority, there being no such treaty, the action of the State of Vermont was within its competency; but if the federal government was in possession of this authority without a treaty, then the action of the State was beyond its competency, unless a concurrent authority was admissible.

Accordingly, Mr. Justice Thompson with his usual discrimination makes the turning point of the jurisdiction of the court to be, whether this power of surrendering criminals was in the government of the United States by the Constitution, or whether it needed to have its being and origin in a treaty. He rejected the jurisdiction for the reason that he held a treaty necessary to confer the power on the government. He observes:

"There is certainly no specific provision in the Constitution on the subject of surrendering fugitives from justice from a foreign country, if demanded, and we are left at large to conjecture upon various parts of the Constitution, to see if we can find that such power is, by fair and necessary implication, embraced within the Constitution. I mean, whether any such obligation is imposed upon any department of our government by the Constitution to surrender to a foreign government a fugitive from justice; for unless there is such a power vested somewhere, it is difficult to perceive how the governor of Vermont has violated any authority given by the Constitution to the general government. If such a power or obligation in the absence of any treaty or law of Congress on the subject rests anywhere, I should not be disposed to question its being vested in the President of the United States. It is a power essentially national in its character, and required to be carried into execution by intercourse with a foreign government, and there is a fitness and propriety of this being done through the executive department of the government, which is intrusted with authority to carry on our foreign intercourse.

"And unless the President of the United States is, under the Constitution, vested with such power, it exists nowhere, there being no treaty or law on the subject. And it appears to me indispensably necessary, in order to maintain the jurisdiction of this court in the present case, to show that the President is vested with such power under the Constitution."

"The Secretary of State, in answer to the letter of the governor of Vermont on the sub ject, says:

"I am instructed by the President to express his regret to your excellency that the request of the acting governor of Canada cannot be complied with under any authority now vested in the executive government of the United States, the stipulation between this and the British government for the mutual delivery over of fugitives from justice being no longer in force, and the renewal of it by treaty being at this time a subject of negotiation between the two governments.

“Here, then, is a direct denial by the President of the existence of such a power in the executive, in the absence of any treaty on the subject; and such has been the settled and uniform course of the executive government of the United States upon this subject since the expiration of our treaty with England. And if this be so, it may be emphatically asked what power in the general government comes in conflict with the power exercised by the governor of Vermont? In order to maintain the jurisdiction of this court in the present case, it must be assumed that the President has under and by virtue of the Constitution, in the absence of any treaty on the subject, authority to surrender fugitives from justice to a foreign government; otherwise it cannot be said that the governor of Vermont has violated the Constitution of the United States.

"This power to surrender fugitives from justice to a foreign government has its foundation, its very life and being, in a treaty to be made between the United States and such foreign government, and is not by the Constitution vested in any department of our government without a treaty."

On the other hand, Chief Justice Taney, and Justices Story, McLean, and Wayne, sustained the jurisdiction, the Chief Justice delivering an elaborate opinion. A few citations from this opinion will show that these four learned justices took the opposite view to Judge Thompson's, and construed the Constitution itself as lodging the power in the federal government, antecedent to and independent of treaty stipulations.

Chief Justice Taney says:

"This case presents a question of great importance, upon which eminent jurists have differed in opinion. Can a State, since the adoption of the Constitution of the United States, deliver up an individual found within its territory to a foreign government, to be there tried for offences alleged to have been committed against it? This involves an inquiry into the relative powers of the federal and State governments upon a subject which is sometimes one of great delicacy.

"The power which has been exercised by the State of Vermont is a part of the foreign intercourse of this country, and has undoubtedly been conferred on the federal government. "As the rights and duties of nations towards one another in relation to fugitives from justice are a part of the law of nations and have always been treated as such by the writers upon public law, it follows that the treaty-making power must have authority to decide how far the right of a foreign nation in this respect will be recognized and enforced when it demands the surrender of any one charged with offences against it. Indeed, the whole frame of the Constitution supports this construction. All the powers which relate to our foreign intercourse are confided to the general government. The power of deciding whether a fugitive from a foreign nation should or should not be surrendered was necessarily a part of the powers thus granted."

The writ of error was dismissed on an equal division of the court, some special grounds of dissent from the opinion of Chief Justice Taney being taken by the other associate justices. But it was so apparent that, on the merits, a majority of the court were with the Chief Justice, that upon a new hearing in the supreme court of Vermont the prisoner was discharged, on the_ground that it was contrary to the Constitution of the United States for a State to make extradition of criminals.

In the case of Kaine, whose extradition had been claimed under the British treaty by a direct application to a judicial officer of the United States, the question was brought up for review, and the point was taken that the application must be made by the foreign government to the Executive of the United States, and that the auxiliary judicial inquiry of fact must be made upon his institution. The case was dismissed upon the concurrence of a majority of the court on a question of jurisdiction. In the opinion of Mr. Justice Nelson, in which Chief Justice Taney and Mr. Justice Daniel concurred, the character of extradition, as an executive and not a judicial function, is thus stated:

"It may, I think, be assumed at this day, as an undoubted principle of this government, that its judicial tribunals possess no power to arrest and surrender to a foreign country fugitives from justice, except as authorized by treaty stipulations and acts of Congress passed in

pursuance thereof. Whether Congress could confer the power independently of a treaty is a question not necessarily involved in this case and need not be examined. If it was, as at present advised, I am free to say that I have found no such power in any article or clause of the Constitution delegated to that body by the people of the State.

"When the casus fœderis occurs, the requisition or demand must be made by the one nation upon the other; and, upon our system of government, a demand made upon the nation must be made upon the President, who has charge of all its foreign relations, and with whom only foreign governments are authorized or even permitted to hold any communication of a national concern. He alone is authorized by the Constitution to negotiate with foreign gov ernments and enter into treaty obligations binding upon the nation; and in respect to all questions arising out of these obligations, or relating to our foreign relations, in which other governments are interested, application must be made to him. A requisition or demand, therefore, upon this government must, under any treaty stipulation, be made upon the Executive, and cannot be made through any other department or in any other way.'

And the learned justice then quoted, with approval, certain propositions of Mr. Marshall on this point, above given from his speech in the case of Thomas Nash.

Upon a survey of all these cases before the federal and State judiciaries, in much diversity and no inconsiderable contrariety of theory and reasoning, it may confidently be asserted that the weight of authority holds

First. That the function of extradition is executive and not judicial.

Second. That it pertains to the federal and not to the State governments. Third. That it is conferred on the federal government by the Constitution itself, and exists antecedent to and independent of treaties.

Fourth. That it is attributed to and may be exercised by the Executive without the need of legislative aid.

Upon the primary question whether, by the law of nations, extradition of fugitive criminals is absolutely obligatory, or only discretionary, upon considerations of justice, humanity and comity, it may be stated that the latter seems to be the view more generally accepted in the federal jurisprudence, the obligation being considered as imposed only by treaty stipulations to that effect. This view was held by Attorney General Wirt, and the expediency of exercising this discretionary power by the Executive, in proper cases, was recognized by him. In giving these views in a case presented by the Executive for his official advice, he accompanies them with the suggestion that the aid of legislation is necessary, and should be given. An examination of Mr. Wirt's opinion given to the government on the subject of the surrender of property by the Executive, on requisition, (which Mr. Marshall, as we have seen, demonstrated to be identical in principle with the extradition of criminals,) will, we think, forcibly expose his error in this view of the need of legislative aid to invigorate the executive authority.

Mr. Wirt says, in an opinion under date of November 20, 1821:

"The truth seems to be that this duty to deliver up criminals is so vague and uncertain as to the offences on which it rests, is of so imperfect a nature, as an obligation, is so inconveniently encumbered in practice by the requisition that the party demanded shall have been convicted on full and judicial proof, or such proof as may be called for by the nation on whom the demand is made, and the usage to deliver or to refuse, being perfectly at the option of each nation, has been so various and consequently so uncertain in its action, that these causes combined have led to the practice of providing by treaty for all cases in which a nation wishes to give herself the right to call for fugitives from her justice.

"I am further of the opinion that even if, by the laws and usages of nations, the obligation existed, and were a perfect obligation, and the proof which is offered of the guilt of the accused also satisfied the requisitions of that law, still the President has no power to make the delivery. The Constitution, and the treaties and acts of Congress made under its authority, comprise the whole of the President's power. Neither of these contains any provision on the subject. He has no power to arrest any one, except for the violation of our own laws. A treaty or an act of Congress might clothe him with the power to arrest and deliver up fugitive criminals from abroad, and it is, perhaps, to be desired that such a power existed, to be exercised or not, at his discretion, for although not bound to deliver up such persons, it might very often be expedient to do it. There could certainly be no objection to the exercise of such power in a case like the present. It would violate no claim which these fugitives have on us. Humanity requires us to afford an asylum to the un

fortunate, but not to furnish a place of refuge to the guilty. On the other hand, respect for ourselves, and a prudent regard for the purity of our society, admonish us to repel rather than to invite the admixture of foreign turpitude and contamination.

"There is another consideration connected with this subject which I beg leave to bring to your view. The people of the United States seem to have contemplated the national government as the sole and exclusive organ of intercourse with foreign nations. It ought, therefore, to be armed with power to satisfy all fair and proper demands which foreign nations may make on our justice and courtesy, or, in other words, with power to reciprocate with foreign nations the fulfilment of all the moral obligations, perfect and imperfect, which the law of nations devolves upon us as a nation. In this respect our system appears to me crippled and imperfect. It might be set to rights, with regard to the subject under consideration, by an act of Congress providing for the punishment of our own citizens who, having committed offences abroad, come home for refuge, and for the delivery of foreign culprits who flee to us fer shelter".-Opinions of Attorneys General, p. 519, &c.

Attorney General Legare, in an opinion given October 11, 1841, puts the matter of declining the extradition wholly on the practice of the government:

"According to the practice of the executive department, the President is not considered as authorized, in the absence of any express provision by treaty, to order the delivering up of fugitives from justice.

"Whatever I might think of the power of the federal executive in the premises, were this a new question, I consider the rules laid down by Mr. Jefferson, and sanctioned after the lapse of upwards of thirty years by another administration, as too solemnly settled to be now departed from."-Opinions of Attorneys General, vol. 111,

p. 661.

Attorney General Cushing, in an opinion under date August 19, 1853, gives his views on the general subject, in disposing of an application to this government to demand the extradition of a criminal, fled to the British provinces, charged with a crime not enumerated in our treaty with Great Britain. Mr. Cushing says:

"I have examined the papers which you were pleased to submit to me in the case of the people of New York vs. Aaron Wing, from which it appears that said Wing is under indictment for larceny, alleged to have been committed by him in violation of the laws of the State of New York, and is now a fugitive from justice in the British provinces, and application is made to you for process to obtain the extradition of said Wing.

"Larceny is not among the cases provided for by any convention between the United States and Great Britain. The crimes enumerated in the treaty of 1842, which now governs the question, are murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery in the utterance of forged papers. It is, therefore, in these cases only that by treaty either government can claim the extradition of fugitives from justice taking refuge in the dominions of the other.

"It is the settled political doctrine of the United States that, independently of special compact, no state is bound to deliver up fugitives from the justice of another state."-See the authorities collected in Wheaton's Elements, p. 172.

"It is true, any state may, in its discretion, do this as a matter of international comity towards the foreign state, but all such discretion is of inconvenient exercise in a constitutional republic organized as is the federal Union; and accordingly it is the received policy of this government to refuse to grant extradition, except in virtue of express stipulations to that effect."-Mr. Legare's opinion, October 11, 1841.”

"Special reasons exist to dictate reserve in the matter of extradition. If the enumeration of cases for the claim of extradition in existing treaties be not sufficiently ample, it would seem better to enlarge the same by further mutual stipulations rather than at the mere discretion of the President."--Opinions of Attorneys General, vol. 6, pp. 85, 86.

It is believed that these opinions of successive Attorneys General indicate the views, from time to time, on which the practice of the government of the United States has been to decline the extradition of criminals in such cases as have arisen, in the absence of treaty stipulations. The theory upon which this practice has from time to time been rested, has not always been fully indicated in the opinions given by these learned officers, but unquestionably it has had its origin in the error, as it is confidently submitted later judicial discussions have shown it to be, that treaties conferred the power on the government, and legislation must attribute the function to the Executive; whereas the very existence of the government, as that of a nation among nations, devolved this 4 C ***

power and responsibility upon the government, and the Constitution itself attributed this executive function, with all others, to the President.

It has already been suggested that the practice of the government upon a branch of international relations whose just conduct, under the law of nations and the Constitution of the United States, rests upon the same principles which must govern this subject of extradition, has uniformly recognized the duty and ability of the government, in its executive department, to represent and act for the nation, without deriving power from treaties or from Congress.

Under the administration of Washington the whole subject of the powers and duties of the government, under the law of nations, and of the assignment of these powers and duties to the executive department, was settled upon the surest foundations of principle. And the practice of the government has never departed from the rules then established.

An adherance to these rules, upon all occasions, when the nation, as a neutral, has been called upon to fulfil obligations to belligerents, has preserved us from being drawn into hostilities, and made our conduct an illustrious example and guide for the great powers of the civilized world. Under the present administration the Executive has adhered to the same principles in the relations which the civil war has induced between this government and the maritime powers of Europe. To these principles the Executive has looked for the measure of the obligations of one nation to another, under the law of nations, and for the measure and support of the executive authority in the premises without the presence of treaty stipulations or of the legislation of Congress. The course of discussion, diplomatic and popular, has brought so distinctly and so recently before the public mind the historical illustrations of the conduct of our government, and the action of the present administration is so freshly in the public attention, that it is unnecessary to insist upon the transactions in detail. It is sufficient to say that the proposition of Mr. Marshall, assented to by his great opponents in debate, that the executive function of the extradition of criminals, under the law of nations and the Constitution of the United States, "is precisely and unequivocally the same" as that of the surrender of prizes, has never been refuted, and is believed to be impregnable.

Mr. Wirt, in his office of Attorney General, was called upon to advise the Executive as to its duty in certain cases where surrender was claimed from the government by foreign nations. In two of these cases the subject of the surrender claimed was slaves-a subject, under the general law of nations, falling more properly under the head of extradition of persons, than of delivery of property. In neither of these cases, besides, were the slaves charged as criminals, so that their case fell within the privilege of asylum, which civilized nations, and this nation more than all others, so strenuously and so resolutely maintain in protection of all refugees from political prosecution or personal oppression.

proceed to quote from Mr. Wirt's opinions. Under date of November 7, 1821, the Attorney General, in the case of a vessel under consideration, upholds the executive power, and insists upon the international duty to make the surrender, even to the point of arresting private judicial proceedings against the vessel.

"If the President of the United States is satisfied that the seizure of La Jeune Eugenie by the United States schooner Alligator, Lieutenant C. Stockton commander, was a violation of the sovereignty of the King of France, and that she ought to be restored on the demand of the French minister, I can perceive no impropriety in adopting the course which was pursued in the case of the Exchange, and approved by the Supreme Court, (7th Cranch, 116,) that is, to disclose this fact to the court, before which the case is depending, by a suggestion to be filed by the attorney for the United States. It was the course which was pursued by President Washington in 1796, with regard to the Cassius, an armed vessel bearing the commission of the French republic."-(2 Dallas, 365.)

"The federal courts are not more completely vested with the judicial power of the nation than the Executive is with that portion of the national power which relates to foreign nations;