474 



KENTUCKY. 



entitled to the immunity awarded him by the Court 

 below. But if the prohibition can be fairly implied 

 from the language and general scope of the treaty, 

 considered in connection with the purposes the con- 

 tracting parties had in view, and the nature of the 

 subject about which they were treating, it is entitled 

 to tike respect, and will be as sacredly observed as 

 though it were expressed in clear and unambiguous 



Public treaties are to be fairly interpreted, and the 

 intention of the contracting parties to be ascertained 

 by the application of the same rules of construction 

 and the same course of reasoning which we apply to 

 the interpretation of private contracts. By the enu- 

 meration of seven well-defined crimes for which ex- 

 tradition may be had, the parties plainly excluded 

 the idea that demand might be made as matter of 

 right for the surrender of a fugitive charged with an 

 offense not named in the enumeration, no matter how 

 revolting or wicked it may be. By providing the 

 terms and conditions upon which a warrant for the 

 arrest of the alleged fugitive may be issued, and con- 

 lining the duty of making the surrender to cases in 

 which the evidence of criminality is sufficient, ac- 

 cording to the law.s of the place where such fugitive 

 is found, to justify his commitment for trial, the 

 right of the demanding government to decide finally 

 as to the propriety of the demand, and as to the evi- 

 dences of guilt, is as plainly excluded as if that right 

 had been denied by express language. It would 

 scarcely be regarded an abuse of the rules of con- 

 struction, from these manifest restrictions, unaided 

 by extraneous considerations, to deduce the conclu- 

 sion that it was not contemplated by the contract- 

 ing parties that an extradited prisoner should, under 

 any circumstances, be compelled to defend himself 

 against a charge other than the one upon which he is 

 surrendered, much less against one for which his ex- 

 tradition could not be demanded. 



The consequences to which the opposite view may 

 lead, though by no means conclusive against it, are 

 nevertheless to receive due and proper weight. It 

 would present a remarkable state of things to have 

 one Government saying, in substance, to the other : 

 "You can not demand the surrender of a person 

 charged with embezzlement. My judges or other 

 magistrates have no right or authority, upon such a 

 demand, either to apprehend the person so accused, 

 or to inquire into the evidences of his criminality ; 

 nnd if they should assume to do so, and should find 

 the evidence sufficient to sustain the charge, the 

 proper executive authority could not lawfully issue 

 the warrant for his surrender. But you may obviate 

 this defect in the treaty by resting your demand upon 

 the charge of forgery, and if you can make out a 

 prima facie case against the fugitive, you may take 

 him into custody, and then, without a breach of faith, 

 nnd without violating either the letter or spirit of our 

 trcatv, compel him to go to trial upon the indictment 



r the non-extraditable offense of embezzlement." 



And if this indirect mode of securing the surrender 



of persons guilty of other than extraditable offenses 



may be resorted to, or if the demand, when made in 



the utmost good faith, to secure the custody of a 



nrnmnl within the provisions of the treaty, can be 



made available to bring him to justice for an offense 



which he would not have been surrendered, then 



it very well see how cither Government could 



lain if a lawfully extradited fugitive should be 



id convicted of a political offense. Prosecu- 



the crime of treason are no more provided 



r the treaty than prosecutions for the crime 



nent, or the offense of bribing a public 



Mr. Fish, in his letter of May 22, 18V6, to Mr. Hoff- 



n reference to the extradition of Winslow, 



o meet thm difficulty by saving that 



MtW ft ertjadition clause in the treaty of 1794, 



SuVfor n n- T'ff ntain8an y rcferencc t immu- 

 nity for political offenses, or to the protection of 



asylum for religious refugees. The public sentiment 

 of both countries made it unnecessary. Between 

 the United States and Great Britain it was not sup- 

 posed on either side that guarantees were required 

 of each other against a thing inherently impossible, 

 any more than by the laws of Solon was a punish- 

 ment deemed necessary against the crime of parricide, 

 which was beyond the possibility of contemplation.'' 

 But President Tyler, under whose administration 

 the treaty of 1842 was concluded, evidently thought 

 that the guarantees of immunity to political refugees 

 were to be implied from the treaty itself, and not left 

 to rest alone on the public sentiment of the two coun- 

 tries. In communicating the draft of the treaty to 

 the Senate for its ratification, speaking of the subject 

 of extradition, he said : " The article on the subject 

 in the proposed treaty is carefully confined to such 

 offenses as all mankind agree to regard as heinous 

 and destructive of the security of life and property. 

 In this careful and specific enumeration of crimes, 

 the object has been to exclude all political offenses, 

 or criminal charges arising from wars or intestine 

 commotions. Treason, misprision of treason, libels, 

 desertion from military service, and other offenses 

 of similar character, are excluded." This interpre- 

 tation was contemporaneous with the treaty itself, 

 snd deserves the higher consideration from the fact 

 that it was contained in a paper prepared by the then 

 Secretary of State, Mr. Webster, who represented 

 the Government of the United States in the negotia- 

 tions from which it resulted. It seems, also, that 

 the extradition article of the treaty was understood 

 in the same way by the British Parliament in 1843. 

 The act of Parliament of that year, passed for the 

 purpose of carrying it into effect, directed that such 

 persons as should thereafter be extradited to the 

 United States should be delivered u to such person 

 or persons as shall be authorized, in the name of the 

 United States, to receive the person so committed, 

 and to convey him to the United States, to be triea ' 

 for the crime of which such person shall be accused." 

 The precise purpose for which the fugitive is to be 

 surrendered is set out in exact and apt language, and >;' 

 the act negatives, by necessary implication, the right 

 here claimed, that the person surrendered may be 

 tried for an offense different from that for which he 

 was extradited, and one for which his surrender could 

 not have been demanded. 



The American Executive in 1842, and the British 

 Parliament in 1843, seem to have been impressed 

 with the conviction that the treaty secured to per- 

 sons surrendered under its provisions an immunity 

 from trial for political offenses far more stable and 

 effectual than the public sentiment of the two coun- 

 tries. Experience had taught them that in times of 

 intestine strife and civil commotions the most en- 

 lightened public sentiment may become warped and 

 perverted, just as it has taught that man is some- 

 times capable of committing the unnatural crime of 

 parricide, although such a crime seemed impossible 

 to the great Athenian lawgiver. And this view was 

 adhered to by Congress in 1848, when the general 

 law providing" for the surrender of persons charged 

 with crime to the various governments with which 

 we had treaty stipulations on that subject was passed. 

 After setting out the necessary preliminary steps, it 

 was provided by the third section of that act, " that 

 it shall be lawful for the Secretary of State, under 

 his hand and seal of office, to order the person so 

 committed to be delivered to such person or persons 

 as shall be authorized, in the name and on behalf of 

 such foreign government, to be tried for the crime 

 of which such person shall be accused." This, like 

 the act of Parliament, declares the purpose of the 

 surrender to be that the alleged offender may u be 

 tried for the crime of which such person shall be ac- 

 cused." The maxim, " expressio'unius est exclusio 

 alterus," may with propriety be applied to each of 

 these acts ; and, read in the light of that maxim, they 

 are persuasive at least of the construction which, uj> 



