KENTUCKY. 



475 



to 1843, the two contracting parties had placed on 

 the tenth article of the treaty. The act of Congress 

 is. in one view, more important than the British act 

 of 1843. It does not rest alone on the proper inter- 

 pretation of a particular treaty, and may be regarded 

 as a legislative declaration of the American idea of 

 the fundamental or underlying principles of the in- 

 ternational practice of extradition. 



The ancient doctrine that a sovereign state is 

 bound by the law of nations to deliver up persons 

 charged with or convicted of crimes committed in 

 another country, upon the demand of the state whose 

 laws they have violated, never did permanently ob- 

 tain in the United States. It was supported by ju- 

 rists of distinction, like Kent and Story, but the 

 doctrine has long prevailed with us that a foreign 

 government has no right to demand the surrender of 

 a violator of its laws unless we are under obligations 

 to make the surrender, in obedience to the stipula- 

 tions of an existing treaty. (Lawrence's Wheaton 

 on International Law, page 233, and authorities 

 cited.) As said by Mr. Gushing, in the matter of 

 Hamilton, a fugitive from the justice of the State of 

 Indiana, " It is the established rule of the United 

 States neither to grant nor to ask for extradition of 

 criminals as between us and any foreign government, 

 unless in cases for which stipulation is made by ex- 

 press convention." (" Opinions of Attorney-Gen- 

 erals," vol. vi., page 431.) From the treatise'of Mr. 

 Clark on the subject of extradition, we feel author- 

 ized to infer that this is the English theory ; but 

 whether it is or not, that Government certainly would 

 not, in the absence of treaty stipulations, surrender 

 fugitives to a government which, like ours, would 

 refuse to reciprocate its acts of comity in that respect. 

 The right of one government to demand and receive 

 from another the custody of an offender who has 

 sought asylum upon its soil, depends upon the ex- 

 istence of treaty stipulations between them, and in 

 all cases is derived from, and is measured and re- 

 stricted by, the provisions, express and implied, of 

 the treaty. 



The fugitive Ilawea, by becoming an inhabitant 

 of the Dominion of Canada, placed himself under 

 the protection of British laws, and we could demand 

 his surrender only in virtue of our treaty with that 

 Government; and we held him in custody for the 

 purposes contemplated by that treaty, and for no 

 other. He was surrendered to the authorities of 

 Kentucky, to be tried upon three several indict- 

 ments for forgery. The Canadian authorities were 

 of opinion that the evidences of his criminality were 

 sufficient to justify his commitment for trial on said 

 three charges. One of the charges the Common- 

 wealth voluntarily abandoned. He was tried upon 

 the remaining two, and found not. guilty in each 

 case by the jury, and now stands acquitted of the 

 crimes for which he was extradited. It is true he 

 was in court, and in the actual custody of the officers 

 of the law, when it was demanded that he should 

 be compelled to plead to the indictment for embez- 

 , zlement. But the specific purposes for which the 

 protection of the British laws had been withdrawn 

 from him had been fully accomplished, and he 

 claimed that, in view of that fact, the period of his 

 extradition had been determined; that his further 

 detention was not only unauthorized, but in viola- 

 tion of the stipulations of the treaty under which he 

 was surrendered ; and that the Common wealth con Id 

 not take advantage of the custody in which he was 

 then wrongfully held, to try and'punish him for a 

 non-extraditable offense. 



To all this it was answered that " an offender 

 against the justice of his country can acquire no 

 rights by defrauding that justice " ; that " between 

 him and the justice he has offended, no rights accrue 

 to the offender by flight. He remains at all times 

 and everywhere liable to be called to answer to the 

 law for his violations thereof, provided he comes 

 within the reach of its arm." Such is the doctrine 



of the cases of Caldwell and Lawrence (8th and 13th 

 Blalchford's Reports), and of the case of Lagrovo 

 (51) th New York). And if the cases of Caldwell and 

 Lawrence could be freed from the complications 

 arising out of the residence of the prisoners within 

 the territorial limits of the British Crown, and the 

 fact that we received them from the authorities of 

 the British Government in virtue of and pursuant 

 to treaty stipulations, it would be sound doctrine 

 and indisputable law. But did Caldwell or Law- 

 rence come within the reach of the arm of our law ? 

 They were surrendered to us by a foreign sovereign, 

 to be tried for specified crimes, and were forcibly 

 brought for the purposes of those trials within the 

 jurisdiction of our courts ; and the point in issue 

 was not whether the prisoners had secured immu- 

 nity by flight, but whether the Court could proceed 

 to try them without disregarding the good faith of 

 the Government, and violating the " supreme law." 

 The legal right of a judicial tribunal to exercise 

 jurisdiction in a given case must, from the nature 

 of things, be open to question at some stage of the 

 proceeding; and we find it difficult to conceive of 

 a person charged with crime being so situated as 

 not to be permitted to challenge the power of the 

 court assuming the right to try and punish him. 

 The doctrine of the cases of Caldwell and Lawrence 

 has been sanctioned by several prominent British 

 officials and lawyers, and has seemingly been acted 

 upon by some of the Canadian courts, and in one 

 instance (that of Heilbronn) by an English court. 

 We say seemingly, for the reason that in Great 

 Britain treaties are regarded as international com- 

 pacts, with which in general the courts have no con- 

 cern. They are to be carried into effect by the ex- 

 ecutive, and the proceedings in the courts are sub- 

 ject to executive control to the extent necessary to 

 enable it to prevent a breach of treaty stipulation in 

 cases of this kind. Hence, when a party charged 

 with crime claims immunity from trial on account 

 of the provisions of the treaty under which he has 

 been extradited, he must apply to the executive to 

 interfere, through the law officers of the Crown, to 

 stay the action of the court ; otherwise it will not, 

 at his instance, stop to inquire as to the form of his 

 arrest, nor as to the means by which he was taken 

 into custody. But a different rule prevails with us, 

 because our Government is differently organized. 

 Neither the Federal nor State executive could in- 

 terfere to prevent or suspend the trial of Hawes. 

 Neither the Commonwealth's attorney nor the court 

 was to any extent whatever subject to the direction 

 or control either of the President of the United 

 States or the Governor of this Commonwealth. But 

 the treaty under which the alleged immunity was 

 asserted 'being part of the supreme law, the Court 

 had the power, and it was its duty if the claim was 

 well founded, to secure to him its full benefit. 



The question we have under consideration has not 

 been passed on by the Supreme Court of the United 

 States, and it therefore so far remains an open one 

 that we feel free to decide it in accordance with the 

 results of our own investigations and reflections. 



Mr. William Beach Lawrence, in the fourteenth 

 volume (page 96) of the "Albany Law Journal," 

 on the authority of numerous European writers, 

 said : " All the right which a power asking an ex- 

 tradition can possibly derive from the surrender 

 must be what is expressed in the treaty, and all rules 

 of interpretation require the treaty to be strictly 

 construed ; and, consequently, when the treaty pre- 

 scribes the offenses for which extradition can be 

 made, and the particular testimony to be required, 

 the sufficiency of which must be certified to the ex- 

 ecutive authority of the extraditing country, the 

 state receiving the fugitive hns no jurisdiction' what- 

 ever over him, except for the specified crime to 

 which the testimony applies." This is the philoso- 

 phy of the rule prevailing in France. The French 

 Minister of Justice, in his circular of April 15, 1841, 



