allege that the evidence before him was taken under oath. In re Tivnan, 5 Best & Smith's Q. B. Rep., 645.

A French warrant for the apprehension of an accused person in Great Britain is necessary in order to procure his extradition under 6 and 7 Vict., c. 76; but it need not be signed by a judge or competent magistrate, and need only be authenticated as made in such manner as would justify the arrest of the accused person in France.

A person condemned par contumace in France continues to be an accused person, liable to be delivered over under the Extradition Acts. In re Coppin, 2 Law Rep., (Chancery Appeals,) 47.

In the United States it is held, that the application for an order of arrest must conform to the requirements of the domestic law. Matter of Farez, 7 Abbott's Practice Reports, New Series, (New York,) 84. Also, that the question of remanding the prisoner for further examination, and the time of remanding, and the determination of the magistrate as to whether the crime is proved, and the case is within the treaty, are matters of purely judicial determination, not subject to appeal, or to executive interference, or revision. Matter of Metzger, 5 Howard's U. S. Sup. Ct. Rep., 176; 6 Opinions of U. S. Attorneys-General, p. 91; 10 Id., 501.

The attorneys for the government in the United States are not charged with any duties in reference to the judicial inquiry instituted, before ordering an extradition. The minister or agent of the government making the requisition employs such counsel as he pleases, if any are necessary. 9 Opinions of the U. S. Attorneys-General, p. 246.

Documentary evidence.

220. Evidence of the commission of a crime by the accused may consist, either wholly or in part, of original depositions, properly authenticated, conformably to the laws of the country where they were made, so as to entitle them to be received for similar purposes by the tribunals or magistrates of such country; or, of exemplified copies, certified by the foreign court or magistrate, or proved, by oath, to be true copies of original depositions.

Such depositions or copies must be certified, as provided in Part VI. of this Code, entitled ADMINISTRATION OF JUSTICE, or by the minister of justice or chief executive officer of the demanding nation, or by the principal diplomatic or consular officer of the nation upon which the demand is made, resident in such foreign country: to be legally authenticated according to the laws of the demanding nation, in the manner

which would entitle them to be received in evidence, for similar purposes, by its tribunals or magistrates.

Act of Congress of August 12, 1848, § 2, 9 U. S. Stat. at L., 302; Act of Congress of June 22, 1860, § 1, 12 U. S. Stat. at L., 84; 10 Opinions of U. S. Attorneys-General, p. 501; Matter of Metzger, 5 New York Legal Observer, 83; In re Coppin, 2 Law Rep., (Chancery Appeals,) 47; Correspondence of British and French Governments, Accounts and Papers, 1866, vol. LXXVI., (38.)

The complaint upon which the warrant of arrest is asked should set forth clearly, but briefly, the substance of the offense charged, so that the court can see that one or more of the crimes enumerated in the treaty is alleged to have been committed. This complaint need not be drawn with the formal precision and nicety of an indictment for final trial, but should set forth the substance and material features of the offense. In re Henrich, 5 Blatchford's U. S. Circuit Ct. Rep., 414; Ex-parte Henrich, 10 Cox's Criminal Cases, 626; 2 Abbott's National Digest, 509, note; Matter of Farez, 7 Abbott's Pr. Rep. N. S., 84.

The affidavit which charges the crime is defective if the witness only swears to his belief. . . . Suspicion does not warrant a commitment, and all legal intendments are to avail the prisoner. The return is to be most strictly construed in favor of liberty. Ib.

The court can regard only the facts set forth in the affidavit as having any legal existence. Any misrecitals and overstatements in the requisition and warrant, which are not supported by the affidavit, cannot be received as evidence to deprive a citizen of his liberty, and transport him to a foreign State for trial. Ex-parte Smith, 3 McLean's U. S. Circuit Court Rep., 121.

The affidavit upon which a warrant of arrest is to issue for the extradition of a fugitive, must state distinctly that the fugitive has committed a crime, and that he committed it in the State from which the requisition comes; for no foreign State can entertain such a jurisdiction of crimes committed in another State as to entitle it to make requisition for the criminal on a third State. Ex-parte Smith, 3 McLean's U. S. Circuit Court Rep., 121.

Each piece of documentary evidence offered by the agents of the foreign government in support of the charge of criminality, should be accompanied by a certificate of the principal diplomatic or consular officer of the United States resident in the foreign country from which the fugitive shall have escaped, stating clearly that it is properly and legally auhenticated, so as to entitle it to be received in evidence in support of the same criminal charge, by the tribunals of such foreign country. In re Henrich, 5 Blatchford's U. S. Circuit Ct. Rep., 414; 2 Abbott's Nat. Dig., 509, note; 10 Cox's Criminal Cases, 626.

The parties seeking the extradition of the fugitive should be required by the commission to furnish an accurate translation of every document offered in evidence which is in a foreign language, accompanied by an affi

davit of the translator, made before him or some other United States commissioner or judge, that the same is correct. Ib.

Public officers should furnish authenticated copies of documents in their custody, when demanded, and should assist in bringing forward tes timony, according to the duties of their several stations; and individuals should not refuse to give testimony. 1 Opinions of U. S. Attorneys-General, p. 82.

The commissioner before whom an alleged fugitive is brought for hearing, should keep a record of all the oral evidence taken before him, taken in narrative form, and not by question and answer, together with the objections made to the admissibility of any portion of it, or to any part of the documentary evidence, briefly stating the grounds of such objections, but should exclude from the record the arguments and disputes of counsel. In re Henrich, 5 Blatchford's U. S. Circ. Ct. Rep., 414; 2 Abbott's Nat. Dig., 509, note; 10 Cox's Criminal Cases, 626.

As to the necessary authentication of depositions under the English statutes to carry into effect the extradition treaties with France, see Re Coppin, 2 Law Rep., (Chancery App.,) 47; and the Correspondence between the French and English Governments on this point, in Accounts and Papers, 1866, vol. LXXVI., (38.) See reviews of this controversy, in a paper by Mr. Westlake, in Transactions of National Association for Promotion of Social Science, 1866, p. 144, and in a report by Mr. Picot, Bulletin de la Societé de Legis. Comp., Mai, 1869, p. 56.

Necessary proof of guilt.

221. The extradition of an alleged fugitive from justice, under this Section, can be made only when the fact of his commission of the offense is so far established that the laws of the country making the extradition would justify apprehension and commitment for trial, if the crime had been there committed.

This provision is contained in nearly all the American treaties. Mere suspicion is no ground for a requisition of a fugitive from a foreign nation. The law of nations requires that evidence, clear and positive, shall be furnished. 1 Opinions of U. S. Attorneys General, p. 509.

The proof should be in all cases not only competent, but full and satisfactory, that the offense has been committed by the fugitive in the foreign jurisdiction—sufficiently so to warrant a conviction, in the judgment of the magistrate, of the offense with which he is charged, if sitting upon the final trial and hearing of the case. No magistrate should order a surrender short of such proof. Ex-parte Kaine, 3 Blatchford's U. S. Circ. Ct. Rep., 1.

A letter from the foreign minister resident here, asking for the preliminary process for extradition of an alleged fugitive criminal, accompanied by a warrant of arrest of the accused, purporting to be issued on due inquiry and evidence, by competent judicial authority in the foreign nation

and sufficiently authenticated by the minister's certificate, would not, if presented to an examining magistrate in the United States, be alone sufficient to authorize him to certify the criminality of the party charged, on which to found his actual extradition; for such evidence would not justify his commitment by the local law where the examination takes place. 6 Opinions of U. S. Attorneys-General, p. 217.

To authorize the arrest and removal of a fugitive from justice to the State having jurisdiction of the crime, it must distinctly appear, from the affidavits before the magistrate upon which the requisition was based, that the supposed criminal committed the crime in the State from which the requisition proceeds. Ex-parte Smith, 3 McLean's U. S. Circ. Ct. Rep., 121.

Whether a defense may be interposed is a question which has been raised, but it seems better that the extradition should be made on the accusation, properly supported, leaving the case to be tried abroad. See, however, Letter of Mr. Lawrence, in Trans. of Nat. Asso. for Prom. Social Science, 1866, p. 156.

Evidence in case of convicted criminals.

222. In case sentence or judgment of guilt has been pronounced in the country making the requisition, surrender shall not be obligatory, except on presentation to the authorities of the nation on which the requisition is made, of the original sentence or judgment establishing the guilt of the accused, properly authenticated, or of an exemplified copy thereof, as prescribed in article 220.

This article is suggested by the provisions of the convention between the United States and

Mar. 23, 1868, Art. V., 15 U. S. Stat. at L.,(Tr.,) 131.
Mar. 21, 1860,

I., 12 Id., 1126.

Inquiry as to real motive of demand.

223. A nation upon which a demand for extradition is made, under this Section, may protect its right to give asylum, by looking behind the mere formal proofs presented in support of the demand, to see that it is not made for a purpose to which this Section does not apply; and, if satisfied that such is the case, may refuse the demand.

Dana's Wheaton, § 115, note 73, p. 184.

Clarke, (Extradition, p. 110,) lays down this rule ·

No surrender should be granted except on the declaration of the min

ister of the foreign power that the fugitive is wanted for trial for the offense charged in the depositions used against him, and no other.

Mr. Rathbone suggests that security should be given that the prisoner should have a public trial within a certain reasonable time, and that notice be sent to the representative abroad of the country surrendering the prisoner, that he may satisfy himself that these provisions of the treaty are carried out. Transactions of Nat. Asso. for Prom. Social Science, 1866, P. 144.

Conflicting claims.

224. In case two or more nations claim a person, upon a charge of violating a provision of this Code, the nation within which the offense was committed has the prior right, unless proceedings upon the charge have already been commenced by the other nation.

Surrender of those under arrest for local offenses may be deferred.

225. The surrender of a person claimed under this Section, who has been previously arrested for the commission of an offense against the laws of the country where he is found, or who has been there convicted of such an offense, may be deferred until he shall have been acquitted or punished therefor.

This provision is founded upon the convention between the United States and

Italy,
Prussia,

(Extended to the)

Mar. 23, 1868, Art. IV., 15 U. S. Stat. at L., (Tr.,) 130.
June 16, 1852,

North German Feb. 22, 1868,
Confederation,

King of Sweden

and Norway, Mar. 21, 1860,

Treaty between the United States and

Bavaria,

IV., 10 Id., (Tr.,) 101.

III., 15 Id., (Tr.,) 116.

VI., 12 Id., 1126.

Sept. 12, 1853, Art. IV., 10 U. S. Stat. at L.,(Tr.,) 176.

Convention between France and

The Grand Duchy Aug. 7, 1858, Art. V., 7 De Clercq, 444.

of Saxe Weimar,

Surrender, notwithstanding civil arrest.

226. If the person claimed is under arrest in the country where he is found, on account of civil obligations, his surrender may be made notwithstanding, but upon condition that the right of the person concerned,