1. The Executive has no power to extradite fugitive criminals
save such as is conferred by treaty or by Act of Congress. P.
299 U. S. 7.
2. The Act of Congress defining the procedure in extradition
cases confers no power on the Executive to surrender any person to
a foreign government where no extradition treaty or convention
provides for such surrender. P.
299 U. S. 9.
3. By Article I of the extradition treaty (1909) with France,
the two governments mutually agree to deliver up "persons" charged
with any of the specified offenses. Article V declares that neither
party "shall be bound" to deliver up its own citizens under the
stipulations of the convention.
Held
(1) That citizens of the respective parties are thus excepted
from the agreement to deliver. P.
299 U. S. 10.
(2) No grant to our Executive of discretionary power to
surrender citizens of the United States can be implied from
anything in the treaty.
Id.
(3) History and practice negative the existence of such implied
discretionary power. P.
299 U. S. 13.
81 F.2d 32 affirmed.
Certiorari, 298 U.S. 647, to review judgments which reversed
judgments of the District Court dismissing writs of habeas corps
sued out by the respondents and remanding them to the custody in
which they were, held under preliminary warrants of
extradition.
Page 299 U. S. 6
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Respondents sued out writs of habeas corpus to prevent their
extradition to France under the Treaty of 1939 (37 Stat. 1526).
They are native-born citizens of the United States and are charged
with the commission of crimes in France which are among the
extraditable offenses specified in the treaty. Having fled to the
United States, they were arrested in New York City, on the request
of the French authorities, under a preliminary warrant issued by a
United States Commissioner, and were held for extradition
proceedings. By the writs of habeas corpus, the jurisdiction of the
Commissioner was challenged upon the ground that, because the
treaty excepted citizens of the United States, the President had no
constitutional authority to surrender the respondents to the French
Republic.
The controlling provisions of the treaty are as follows:
"Article I. The Government of the United States and the
Government of France mutually agree to deliver up persons who,
having been charged with or convicted of any of the crimes or
offenses specified in the following article, committed within the
jurisdiction of one of the contracting Parties, shall seek an
asylum or be found within the territories of the other: Provided
That this shall only be done upon such evidence of criminality as,
according to the laws of the place where the fugitive or person so
charged shall be found, would justify his or her
Page 299 U. S. 7
apprehension and commitment for trial if the crime or offense
had been there committed."
"
* * * *"
"Article v. Neither of the contracting Parties shall be bound to
deliver up its own citizens or subjects under the stipulations of
this convention."
The Circuit Court of Appeals, reversing the orders of the
District Judge, sustained the contention of the respondents and
directed their discharge. 81 F.2d 32. This Court granted
certiorari.
First. The question is not one of policy, but of legal
authority. The United States has favored the extradition of
nationals of the asylum state, and has sought -- frequently without
success -- to negotiate treaties of extradition including them.
[
Footnote 1] Several of our
treaties have made no exception of nationals. [
Footnote 2] This is true of the treaties with
Great Britain from the beginning, of the treaty with France of
1843, and of that with Italy of 1868.
Charlton v. Kelly,
229 U. S. 447,
229 U. S. 467.
Where treaties have provided for the extradition of persons without
exception, the United States has always construed its obligation as
embracing its citizens.
Id., p.
229 U. S. 468.
In the opinion in
Charlton v. Kelly, we alluded to the
fact that it had "come to be the practice with a preponderant
number of nations to refuse to deliver its citizens," and it was
observed that this exception was of modern origin. The
Page 299 U. S. 8
beginning of the exemption was traced to the practice between
France and the Low Countries in the eighteenth century. And we
found that, owing
"to the existence in the municipal law of many nations of
provisions prohibition the extradition of citizens, the United
States has in several of its extradition treaties clauses exempting
citizens from their obligation."
Accordingly, we divided the treaties in force into two classes,
"those which expressly exempt citizens, and those which do not."
Id., pp.
229 U. S.
466-467.
The effect of the exception of citizens in the treaty with
France of 1909, now under consideration, must be determined in the
light of the principles which inhere in our constitutional system.
The desirability, frequently asserted by the representatives of our
government and demonstrated by their arguments and the discussions
of juries, of providing for the extradition of nationals of the
asylum state is not a substitute for constitutional authority. The
surrender of its citizens by the government of the United States
must find its sanction in our law.
It cannot be doubted that the power to provide for extradition
is a national power; it pertains to the national government, and
not to the states.
United States v. Rauscher, 119 U.
S. 407,
119 U. S.
412-414. But, albeit a national power, it is not
confided to the Executive in the absence of treaty or legislative
provision. At the very beginning, Mr. Jefferson, as Secretary of
State, advised the President: "The laws of the United States, like
those of England, receive every fugitive, and no authority has been
given to their Executives to deliver them up." [
Footnote 3] As stated by John Bassett Moore in his
treaties on Extradition, summarizing the precedents,
"he general opinion
Page 299 U. S. 9
has been, and practice has been in accordance with it, that, in
the absence of a conventional or legislative provision, there is no
authority vested in any department of the government to seize a
fugitive criminal and surrender him to a foreign power. [
Footnote 4]"
Counsel for the petitioners do not challenge the soundness of
this general opinion and practice. It rests upon the fundamental
consideration that the Constitution creates no executive
prerogative to dispose of the liberty of the individual.
Proceedings against him must be authorized by law. There is no
executive discretion to surrender him to a foreign government
unless that discretion is granted by law. It necessarily follows
that, as the legal authority does not exist save as it is given by
act of Congress or by the terms of a treaty, it is not enough that
statute or treaty does not deny the power to surrender. It must be
found that statute or treaty confers the power.
Second. Whatever may be the power of the Congress to
provide for extradition independent of treaty, that power has not
been exercised save in relation to a foreign country or territory
"occupied by or under the control of the United States." Act June
6, 1900, c. 793, 31 Stat. 656. 18 U.S.C. § 652.
See Neely v.
Henkel, 180 U. S. 109,
180 U. S. 122.
Aside from that limited provision, the Act of Congress relating to
extradition simply defines the procedure to carry out an existing
extradition treaty or convention. [
Footnote 5]
The provision is that "
[w]henever there is a treaty or
convention for extradition between the Government of the
United States and any foreign government," a proceeding may be
instituted to procure the surrender of a person charged with the
commission of a crime specified in the treaty or convention. Upon
the apprehension of
Page 299 U. S. 10
the accused, he is entitled to a hearing, and, upon evidence
deemed to be sufficient to sustain the charge "under the provisions
of the proper treaty or convention," the charge with the evidence
is to be certified to the Secretary of State to the end that a
warrant may issue upon the requisition of the proper authorities of
such foreign government, "
for the surrender of such person,
according to the stipulations of the treaty or convention."
R.S. § 5270; 18 U.S.C. § 651.
It is manifest that the Act does not attempt to confer power
upon the Executive to surrender any person, much less a citizen of
the United States, to a foreign government where an extradition
treaty or convention does not provide for such surrender. The
question then is the narrow one whether the power to surrender the
respondents in this instance is conferred by the treaty itself.
Third. It is a familiar rule that the obligations of
treaties should be liberally construed so as to give effect to the
apparent intention of the parties.
Tucker v. Alexandroff,
183 U. S. 424,
183 U. S. 437;
Jordan v. Tashiro, 278 U. S. 123,
278 U. S. 127;
Factor v. Laubenheimer, 290 U. S. 276,
290 U. S.
293-294. But, in this instance, there is no question for
construction so far as the obligations of the treaty are concerned.
The treaty is explicit in the denial of any obligation to surrender
citizens of the asylum state: "Neither of the contracting Parties
shall be bound to deliver up its own citizens."
Does the treaty, while denying an obligation in such case,
contain a grant of power to surrender a citizen of the United
States in the discretion of the Executive? The Constitution
declares a treaty to be the law of the land. It is consequently, as
Chief Justice Marshall said in
Foster v.
Neilson, 2 Pet. 253,
27 U. S. 314,
"to be regarded in courts of justice as equivalent to an act of the
legislature, whenever it operates of itself, without the aid of any
legislative provision."
See also Head Money Cases,
112 U. S. 580,
112 U. S.
598;
Page 299 U. S. 11
United States v. Rauscher, supra, p.
119 U. S. 418.
Examining the treaty in that aspect, it is our duty to interpret it
according to its terms. These must be fairly construed, but we
cannot add to or detract from them.
Obviously the treaty contains no express grant of the power now
invoked. Petitioners point to Article I, which states that the two
governments "mutually agree to deliver up persons" who are charged
with any of the specified offenses. Petitioners urge that the word
"persons" includes citizens of the asylum state as well as all
others. But Article I is the agreement to deliver. It imposes the
obligation of that agreement. Article I does not purport to grant
any power to surrender save as the power is related to and derived
from that obligation. The word "persons" in Article I describes
those who fall within the agreement and with respect to whom the
obligation is assumed. As Article V provides that there shall be no
obligation on the part of either party to deliver up its own
citizens, the latter are necessarily excepted from the agreement in
Article I and from the "persons" there described. The fact that the
exception is contained in a separate article does not alter its
effect. That effect is precisely the same as though Article I had
read that the two governments "mutually agree to deliver up persons
except its own citizens or subjects."
May a grant to the Executive of discretionary power to surrender
citizens of the United States be implied? Petitioners seek to find
ground for this implication by comparing the expression in Article
V "Neither of the contracting parties shall be bound," in relation
to the surrender of citizens, with the phrase in Article VI that "A
fugitive criminal shall not be surrendered" if the offense charged
is of a political character, and the clause in Article VIII that
extradition "shall not be granted" where prosecution is barred by
limitation according to the laws of the asylum country. This
difference in the phrasing
Page 299 U. S. 12
of denials of obligation would be, at the best, an extremely
tenuous basis for implying a power which in order to exist must be
affirmatively granted. Of far greater significance is the fact that
a familiar clause -- found in several of our treaties -- which
qualifies the exception of citizens by expressly conferring
discretionary power to surrender them was omitted in the treaty
with France.
The treaty with Japan of 1886 provided in Article VII: [
Footnote 6]
"Neither of the contracting parties shall be bound to deliver up
its own citizens or subjects under the stipulations of this
convention, but they shall have the power to deliver them up if in
their discretion it be deemed proper to do so."
A similar provision is found in the extradition treaties with
the Argentine Republic, of 1896, and with the Orange Free State, of
1896. [
Footnote 7] The treaties
with Mexico, of 1899, with Guatemala, of 1903, with Nicaragua, of
1905, and with Uruguay, of 1905, expressly lodge the discretionary
power with the "executive authority." Thus, in the treaty with
Mexico of 1899 we find the following article (Art. IV):
"Neither of the contracting parties shall be bound to deliver up
its own citizens under the stipulations of this convention, but the
executive authority of each shall have
Page 299 U. S. 13
the power to deliver them up, if, in its discretion, it be
deemed proper to do so. [
Footnote
8]"
We must assume that the representatives of the United States had
these clauses before them when they negotiated the treaty with
France, and that the omission was deliberate. And the fact that our
government had favored extradition treaties without excepting
citizens puts the omission of the qualifying grant of discretionary
power in a strong light.
Historical background and administrative practice furnish no
warrant for reading into the treaty with France a grant which the
parties failed to insert. History and practice not only do not
support, but they rather negative, the claim of an implied
discretionary power. The language of Article V of the treaty with
France first appears in our extradition treaty with Prussia in
1852, [
Footnote 9] and it was
repeated in a number of later treaties, including the Mexican
treaty of 1861. [
Footnote
10] It seems that the question as to the effect of the
provision first arose under the last-mentioned treaty. Mr. Moore
reviews the cases. [
Footnote
11] In 1871, the United States requested the surrender of
fugitives who had escaped to Mexico. It appeared that they were
Mexican citizens. The Mexican government refused surrender, stating
that its action "should be in strict conformity with the
stipulations of the treaty of extradition" and
Page 299 U. S. 14
with "the practice observed" by the government of the United
States toward the Mexican government "in similar cases." In 1874,
one Perez, a Mexican, committed a murder in Texas and escaped to
Mexico. Our Secretary of State, Mr. Fish, instructed the American
Ambassador that, although the surrender could not be demanded as of
right and would not be asked as a favor, or even accepted with an
understanding that it would be reciprocated, the circumstances
might be made known to the Mexican government with a view to
ascertain whether it would voluntarily surrender the fugitive. The
Mexican government declined the surrender. In another case, arising
in 1877, the question of the power of the Mexican government to
surrender its citizens to the United States came before its federal
Supreme Court. While it appeared that the fact of Mexican
citizenship was not conclusively established, the court was of the
view that the individual guarantees of the Mexican Constitution
would not be violated by the surrender.
The question was elaborately considered in the case of Trimble
in 1884. He was an American citizen whose extradition was demanded
by the Mexican government. Our government refused surrender. Mr.
Frelinghuysen, Secretary of State, took the ground that, as the
treaty negatived the obligation to surrender, the President was not
invested with legal authority to act. While it is true that
Secretary Frelinghuysen later concluded that the question was of
such importance that it should receive judicial determination, the
view he entertained as to the President's lack of power was
cogently stated. [
Footnote
12] Referring
Page 299 U. S. 15
to that view, Mr. Moore adds: "To this position the government
of the United States has adhered." [
Footnote 13]
Secretary Bayard, in the case of Hudson, in 1888, followed the
ruling in the Trimble case. He said:
"The treaty provision referred to, which is found similarly
stated in
Page 299 U. S. 16
many of our extradition treaties, was held to negative any
obligation to surrender, and thus to leave the authorities of this
government without authority to act in such a case. After due
consideration, the department is of opinion that the construction
given to the treaty in the Trimble case is correct."
See Ex parte McCabe, 46 F. 363, 379. Secretary Blaine,
in 1891, in refusing to ask for the surrender of Mexican citizens,
took the same position, saying:
"In view of this [the Trimble case] and several prior and
subsequent cases in which a similar construction has been given to
the treaty, the government is precluded from demanding the
extradition of the fugitives in the present instance."
Id.
In this situation, the question of the construction of the
treaty with Mexico came before the District Court of the United
States for the Western District of Texas in 1891. Mrs. McCabe, an
American citizen who was held for extradition proceedings on the
charge that she had committed the crime of murder in Mexico, sued
out a writ of habeas corpus. In an elaborate opinion reviewing the
precedents, Judge Maxey ruled that there was no authority to
surrender and directed her discharge from custody.
Ex parte
McCabe, supra. The case was not appealed.
In the light of this concurrence of administrative and judicial
views, a new extradition treaty with Mexico was negotiated (1899).
That treaty, as we have seen, repeated the exception with respect
to citizens, but, following the precedent of the treaties with
Japan, the Argentine Republic, and the Orange Free State, [
Footnote 14] added the qualifying
words "but the executive authority of each shall have the power to
deliver them up, if, in its discretion, it be deemed proper to do
so." And the same qualification was inserted in the later treaties
above mentioned. [
Footnote
15]
Page 299 U. S. 17
Petitioners insist that the precedents fall short of showing a
uniform course of practical construction favorable to the
respondents. The argument is unavailing. What is more to the point
is that administrative practice is not shown to be favorable to the
petitioners. Strictly, the question is not whether there had been a
uniform practical construction denying the power, but whether the
power had been so clearly recognized that the grant should be
implied. The administrative rulings to which we have referred make
the latter conclusion wholly inadmissible.
The treaty with France of 1843 made no exception of citizens.
France, however, refused to recognize an obligation under that
treaty to surrender her citizens. [
Footnote 16] In inserting the exception in the new
treaty, a clause was chosen under which Secretaries of State and a
federal court had held that the President had no discretionary
power to surrender citizens of this country. Notwithstanding this,
that excepting clause was inserted without qualification, and a
familiar clause granting a discretionary power was omitted . No
provision was inserted to confer such a power. It was upon that
basis that the treaty was negotiated and ratified. In these
circumstances, we know of no rule of construction which would
permit us to supply the omission.
Against these considerations, the inference sought to be drawn
from the French "
expose des motifs" accompanying the
treaty, and more particularly from the "
expose"
accompanying the Franco-British treaty of 1908, is of slight
weight. [
Footnote 17]
Petitioners strongly rely upon the decision in England in
In
re Galwey [1896], 1 Q.B.D. 230;
compare Reg. v.
Wilson, 3 Q.B.D. 42 [1877]. But, as the Circuit Court
Page 299 U. S. 18
of Appeals points out, the Anglo-Belgian treaty there under
consideration had its own history and background -- quite different
from that which we have here -- upon which the case turned. It does
not present a persuasive analogy.
Applying, as we must, our own law in determining the authority
of the President, we are constrained to hold that his power, in the
absence of statute conferring an independent power, must be found
in the terms of the treaty, and that, as the treaty with France
fails to grant the necessary authority, the President is without
power to surrender the respondents.
However regrettable such a lack of authority may be, the remedy
lies with the Congress, or with the treatymaking power wherever the
parties are willing to provide for the surrender of citizens, and
not with the courts.
The decree of the Circuit Court of Appeals is
Affirmed.
MR. JUSTICE STONE took no part in the consideration or decision
of this case.
* Together with No. 7,
Valentine, Police Commissioner, et
al. v. U.S. ex rel. George W. Neidecher, and No. 8,
Valentine, Police Commissioner, et al. v. U.S. ex rel. Aubrey
Neidecker. On writs of certiorari to the Circuit Court of
Appeals for the Second Circuit.
[
Footnote 1]
Moore, Int.Law Dig., vol. IV, § 594; Moore on Extradition, vol.
I, pp. 159-162.
[
Footnote 2]
Great Britain, 1794, art. XXVII, 1 Malloy, Treaties, p. 605;
1842, art. X,
id., p. 655; 1889,
id., p. 740;
1931, 47 Stat. 2122; France, 1843, 1 Malloy, p. 526; Italy, 1868,
id., p. 966.
See also Switzerland, 1850, art.
XIII, 2 Malloy, p. 1767; Venezuela, 1860, art. XXVII, 2 Malloy, p.
1854; Dominican Republic, 1867, art. XXVII, 1 Malloy, p. 413;
Nicaragua, 1870, 2 Malloy, p. 1287; Orange Free State, 1871,
article VIII, 2 Malloy, p. 1312; Ecuador, 1872, 1 Malloy, p.
436.
[
Footnote 3]
Quoted in Moore on Extradition, vol. I, pp. 22, 23; Moore,
Int.Law Dig., vol. IV, p. 246.
[
Footnote 4]
Moore on Extradition, vol. I, p. 21.
[
Footnote 5]
Moore on Extradition, vol. I, p. 50.
[
Footnote 6]
1 Malloy, 1027. Quoted in
Charlton v. Kelly,
229 U. S. 447,
229 U. S.
467.
[
Footnote 7]
The provision of the treaty with the Argentine Republic, 1896,
Art. 3, 1 Malloy 26, is as follows:
"In no case shall the nationality of the person accused be an
impediment to his extradition, under the conditions stipulated by
the present treaty, but neither Government shall be bound to
deliver its own citizens for extradition under this Convention; but
either shall have the power to deliver them up if, in its
discretion, it be deemed proper to do so."
The same phraseology is used in the treaty with the Orange Free
State, 1896, Art. V, 2 Malloy 1316.
[
Footnote 8]
1 Malloy 1186. The treaties with Guatemala, 1903, art. 5, 1
Malloy 881, and with Nicaragua, 1905, 2 Malloy 1295, have the same
provision.
The treaty with Uruguay, 1905, art. 10, 2 Malloy 1828,
provides:
"The obligation to grant extradition shall not in any case
extend to the citizens of the two parties, but the executive
authority of each shall have power to deliver them up if, in its
discretion, it is deemed proper to do so."
[
Footnote 9]
2 Malloy 1503.
[
Footnote 10]
1 Malloy 1127.
[
Footnote 11]
Moore on Extradition, vol. I, pp. 164-167; Moore, Int.Law Dig.,
vol. IV, pp. 301-303.
[
Footnote 12]
Mr. Frelinghuysen's views appear in a report to the Senate.
Sen.Ex.Doc. 98, 48th Cong., 1st Sess.
See Moore on
Extradition, vol. I, pp. 167, 168. Discussing the constitutional
powers of the President, Mr. Frelinghuysen concluded:
"Thus it appears that, by the opinions of several
Attorneys-General, by the decisions of our courts, and by the
rulings of the Department of State, the President has not,
independent of treaty provision, the power of extraditing an
American citizen, and the only question to be considered is whether
the treaty with Mexico confers that power."
"By the treaty with Mexico proclaimed June 20, 1862, this
country places itself under obligations to Mexico to surrender to
justice persons accused of enumerated crimes committed within the
jurisdiction of Mexico who shall be found within the territory of
the United States, and further provides that that obligation shall
not extend to the surrender of American citizens. The treaty
confers upon the President no affirmative power to surrender an
American citizen. The treaty between the United States and Mexico
creates an obligation on the part of the respective governments,
and does no more, and where the obligation ceases, the power falls.
It is true that treaties are the laws of the land, but a statute
and a treaty are subject to different modes of construction. If a
statute by the first section should say, the President of the
United States shall surrender to any friendly power any person who
has committed a crime against the laws of that power, but shall not
be bound so to surrender American citizens, it might be argued,
perhaps correctly, that the President had a discretion whether he
would or would not surrender an American citizen. But a treaty is a
contract, and must be so construed. It confers upon the President
only the power to perform that contract. I understand the treaty
with Mexico as reading thus: the President shall be bound to
surrender any person guilty of crime unless such person is a
citizen of the United States."
"Such being the construction of the treaty, and believing that
the time to prevent a violation of the law of extradition was
before the citizens left the jurisdiction of the United States, I
telegraphed the Governor of Texas that an American citizen could
not legally be held under the treaty for extradition."
"It would be a great evil that those guilty of high crime,
whether American citizens or not, should go unpunished; but even
that result could not justify in usurpation of power."
[
Footnote 13]
Moore on Extradition, vol. I, p. 167.
[
Footnote 14]
See note 7
[
Footnote 15]
See note 8
[
Footnote 16]
Moore, Int.Law Dig., vol. IV, p. 298.
[
Footnote 17]
Documents Parlementaires (1909), Chambre des Deputes, Annexe
2391;
id., Senat, Annexe 2338.