EXTRADITION. (Lat. ex, from, traditio, handing over). The surrender by one sover eign state to another, on its demand, of per sons charged with the commission of crime within its jurisdiction, that they may be dealt with according to its laws ; the sur render of persons by one federal state to an other, on its demand, pursuant to their fed eral constitution and laws.
Without treaty stipulations. Public ju rists are not agreed as to whether extradi tion, independent of treaty stipulations, is a matter of imperative duty or of discretion merely. Some have maintained the doctrine that the obligation to surrender fugitive criminals is perfect, and the duty of fulfill ing it is, therefore, imperative, especially where the crimes of which they are accused affected the peace and safety of the state ; but others regard the obligation as imperfect in its nature, and a refusal to surrender such fugitives as affording no ground of of fence. Of the former opinion are Grotius, Heineccius; Burlamaqul, Vattel, Rutherforth, Schmelzing and Kent ; the latter is maintained by Puffendorf, Voet, Martens, Kliiber, Leyser, Kluit, Saalfeld, Schmaltz, Mittermeyer, Heffter, and Wheaton.
Except under the provisions of treaties, the delivery by one country to another of fugitives from justice is a matter of comity, not of obligation; U. S. v. Rauscher, 119 U. S..407, 7 Sup. Ct. 234, 30 L. Ed. 425.
Many nations have practised extradition without treaty engagements to that effect, as the result mutual comity and conven ience; others havp refused. , The United States has always declined to surrender criminals unless bound by treaty to do so ; 1 Kent 39 n.; 1 Opin. Attys. Gen. 511; 6 id. 85, 431; People v. Curtis, 50 N. Y. 321, 10 Am. Rep. 483'; Holmes v. Jennison, 14 Pet. (U. S.$ 540, 10 L. Ed. 579; Ex parte HolmeS, 12 Vt. 631. The existence of an extradition treaty does not prohibit the surrender by ei ther country of a person charged with a crime not enumerated in the treaty ; Ex parte Foss, 102 Cal. 347, 36 Pac. 669, 25 L. R. A. 593, 41 Am. St. Rep. 182. No state has an absolute right to demand of another the delivery of a fugitive criminal, though it has what is called an imperfect right, but a refusal to deliver the criminal is no just cause of war. Per Tilghman, C. J., in Com.
v. Deacon, 10 S. & R. (Pa.) 125.
Under treaty stipulations. The sovereign ty of the United States, as it respects foreign states, being vested by the constitution in the federal government, it appertains to it exclusively to perform the duties of extradi tion which, by treaties, it may assume ; Holmes v. Jennison, 14 Pet. (U. S.) 540, 10 L. Ed. 579; U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234, 30 L. Ed. 425 ; and, to enable the executive to discharge such duties, con gress passed the acts of Aug. 12, 1848, July 12, 1889, and June 6, 1900. The general gov ernment alone has the power to enact laws for the extradition of foreign criminals. It possesses that power under the treaty power in the constitution ; Holmes v. Jennison, 14 Pet. (U. S.) 540, 10 L. Ed. 579; People v. Curtis, 50 N. Y. 321, 10 Am. Rep. 483 ; In re De Giacomo, 12 Match. 391, Fed. Cas. 3,747.
While a violation of an extradition treaty with Italy might render the treaty denounce able by the United States, it does not ren der it void and of no effect. The refusal of Italy to surrender its nationals has not had the effect of abrogating the treaty but of merely placing the government in the posi tion of having the right to denounce it ; Charlton v. Kelly, 229 U. S. 447, 33 Sup. Ct. 945, 57 L. Ed.
In the absence of a treaty, it has been said the president has no power as well as no duty to surrender a fugitive ; Ex parte McCabe, 46 Fed. 363, 12 L. R. A. 589. As to whether congress has this power was said In Neely v. Henkel, 180 U. S. 109, 21 Sup. Ct. 302, 45 L. Ed. 448, to be an undecided ques tion. It was there said to be competent for congress to enforce or give efficacy to the provisions of the treaty between the U. S. and Spain with respect to Cuba, and that the act of June 6, 1900, providing for the extradition of criminals in certain cases "to foreign countries or territories" occupied by or under the control of the United States was constitutional. See 14 Harv. L. Rev. 607.