Extradition History

Introduction

The U. S. Supreme Court, in United States v. Rauscher (1886), expressed the dominant doctrine in the United States then: “It is only in modem times that the nations of the earth have imposed
upon themselves the obligation of delivering up these fugitives from justice to the States where their crimes were committed, for trial and punishment. This has been done generally by
treaties made by one independent government with another.

Prior to these treaties, and apart from them, it may be stated as the general result of the writers upon international law, that there was no well-defined obligation on one country to deliver up such fugitives to another, and though such delivery was often made, it was upon the principle of comity, and within the discretion of the government whose action was invoked; and it has never been recognized as among those obligations of one government towards another which rest upon established principles of international law. “

History of Extradition

Ancient Precedents

Professor Villefort wrote in 1851 that the “authors who have written on the subject, and particularly the publicists of the seventeenth century, have pushed the origin of extradition
back to antiquity. But, in truth, the examples they cite can not be analogized to our present extraditions. They were not matters of malefactors requisitioned by the nation of which they
had found refuge. All these examples refer to … violations of the Law of Nations, like aggression, violations of territory, pillaging of temples, committed by inhabitants of the ‘country’ to which the outraged nation comes to demand satisfaction for the offense
through the rendition of the culpable. If there were a refusal (by the requested ‘state’), war would result.

These events appear to belong to an entirely different order of idea, and one discerns this
by the attempt to explain the rarity of extradition cases in antiquity by claiming that the infrequency was the effect of the law of asylum and other considerations which really can only have had secondary influence. The true general cause is that a principle similar to modern extradition cannot exist amidst the state of hostile isolation in which the peoples of that epoch lived. In order for extradition to enter into international usage, it requires no less than the moral solidarity which ties the diverse modern nations. During the entire Middle Ages, and even after several centuries which followed, one can say that extradition only had an accidental existence; it is only barely by the end of the eighteenth century that this right appears
to have been admitted universally by virtue of the principle of reciprocity.” (1)

However, the fact is that extradition was a legal issue in the ancient Egypt, ancient Greece, and ancient Roma, especially in the case of political refugees. Although the “process has not always been executed by use of a treaty agreement, treaty authorized extraditions have existed since antiquity. Moreover, a treaty authorized extradition for common crimes, as opposed to
political offenses, was utilized in the earliest known diplomatic document of any kind.”(2)

Probably, the earliest known diplomatic document that contains an extradition provision (in this case, for the reciprocal rendition of fugitives, was the Treaty of Peace between Ramses II, Pharaoh of Egypt and the Hittite King Hattusili III.

The extradition system “evolved in Europe from the 18th century onwards. With the rise of national states and the centrality of the concept of sovereignty, more than 100 extradition treaties were signed during the 18th and the early part of the 19th centuries.”(3)

“When the “nation-state” evolved, the sovereign continued to desire the rendition of criminals and, frequently, “political” offenders. As modern theories of criminal science evolved, so did theories of extradition. The notion that the relative power of the sovereigns required the extradition of fugitives, gave way to the view that natural right and justice required extradition.

Later, positivism served to promote the concept that the “legality” of extradition is derived from an extradition treaty, local legislation or case law. “(4)

The current legal term “extradition” was not used essentially until the late eighteenth century, “the notion was existant, and equivalent or similar terms were not uncommon.”(5)

Extradition first became a common policy of many states in the 19th century. But there several extradition systems in place. Sir Edward Clarke preferences for the Anglo-American system
Was clear: “In the matter of extradition the American law was, until 1870 better than that of any country in the world; and the decisions of the American judges are the best existing exposition of the duty of extradition, in its relations at once to the judicial rights of nations and the general interests of the civilization of the world.”(6)

Extradition in the absence of a Treaty

“In 1872, the French Minister of Justice provided explicit recognition of the authority to extradite in the absence of any treaty when he issued a “circulaire” to the effect that extradition might be granted in the absence of a treaty on the basis of reciprocity. This “circulaire” stipulates that the rules applicable to such an undertaking are those of international law. Although authority exists in France for allowing extradition in the absence of a treaty, the extradition treaty has been the most constant source of developing extradition law.” (7)

“There was a grand debate in the United States between 1794 and 1840, over the issue of whether or not there was a duty to extradite fugitives in the absence of a treaty obligation. The first judicial decision to consider the issue was United States v. Robins. The Robins decision did not settle the debate, however, and divergence of opinion among judges and commentators reigneduntil 1840, when the United States Supreme Court held that no obligation to extradite existed apart from that imposed by treaty. The Supreme Court reaffirmed its holding in the famous case of United States v. Rauscher, in which the Court adopted the positivist school’s view that extradition had not existed until “modern times.” Moreover, explained the Court, extradition did not come into existence until the “nations of the earth … imposed upon
themselves the obligation of delivering up these fugitives from justice to the States where their crimes were committed …. “” (8)

The U.S. Supreme Court, in Factor v. Laubenheimer, followed his jurisprudence of the need of a treaty, based on international law principles: “The principles of international law recognize no right to extradition apart from treaty. While a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he has fled, and it has been said that it is under a moral duty to do so …
the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exists only when created by treaty.”

Finally, in a 1936 decision, the U.S. Supreme Court reafirm the need of an express legislative or treaty stipulation: “Applying, as we must, our law in determining the authority of the President, we are constrained to hold that this 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 respondent. (It) pertains to the national government and not to the states …. But, albeit a national power, it is not confined to the executive in the absence of treaty or legislative provision.”

At the very beginning, the then 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 Executive to deliver them up.”

In the opinion of John Bassett Moore, “the general opinion 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 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 a statute does not deny the power to surrender. It must be found that the statute or treaty confers the power.”

In the same sense, a May 1959 note from the United States Government (the Secretary of State) to a foreign government (to the Ambassador of the Turkish Republic), stated that under the laws of the United States, “the Government of the United States may extradite an individual from this country to a foreign country only in accordance with an extradition agreement. It may not extradite an individual to a foreign country in the absence of such an agreement or in a case not coming within the terms of such agreement.”

In January 1947, in a Communication handed by the Chief of the Division of Eastern European Affairs to the Counselor of the Soviet Embassy at Washington, it was explained the denegation of a request by the Soviet Government to extradite a Soviet national accused of embezzlement, because “[I]t is a well-established principle of international law that no right to extradition exists apart from treaty. ”

In a letter from the U.S. Acting Secretary of State in December 1958, “[I]t may be said that if the offense for which an individual’s return is desired is not one of those enumerated in the treaty between the two countries concerned, the requested country would be under no obligation to surrender in extradition an individual charged with that offense and the requesting country would be unable to invoke the provisions of the treaty to obtain his surrender.”

Valentine v. United States

In Valentine v. United States (1936), the U. S. Supreme Court refused to extradite an American national to France, even though the general policy of the United States’ Government was to eliminate the nationality exemption from extradition. It held that the “nationals exemption clause” in the treaty absolutely precluded the right of the executive to extradite one of its nationals. “Of course, the holding applies to United States nationals only. However, the rationale of the holding is not that nationals will not be extradited unless there is reciprocity, but that no extradition can take place unless there is a specific treaty provision covering it” (9)

The main point for the U.S. refusal was that, save there is an extradition (or other type) treaty for it, is 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 … legal authority does not exist, save as it is given by act of Congress or by the terms of a treaty …. “(10)

History of Extradition Treaties

History of U.S. Extradition

Main Entry: Extradition in the United States

History of Extradition in Canada

Main Entry: Extradition in the United States

Notes

M. Villefort, Des Traites D’extradition de la France avec les pays etrangers (1851)
Christopher L. Blakesley, The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History, 4 B.C. Int’l & Comp. L. Rev. 39 (1981)
Deflem, Mathieu, and Kyle Irwin. 2006. “Extradition, International.” Pp. 352-354 in Encyclopedia of American Civil Rights and Liberties, edited by Otis H. Stephens, Jr., John M. Scheb II, and Kara E. Stooksbury. Westport, CT: Greenwood Press.
Christopher L. Blakesley, The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History, 4 B.C. Int’l & Comp. L. Rev. 39 (1981)
Id
E. Clarke, a Treatise upon the law of extradition 28-29 (2d ed. 1874).
Christopher L. Blakesley, The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History, 4 B.C. Int’l & Comp. L. Rev. 39 (1981)
Id.
Id.
Id.

Extradition History

Extradition History

Introduction

History of Extradition

Ancient Precedents

Extradition in the absence of a Treaty

Valentine v. United States

History of Extradition Treaties

History of U.S. Extradition

History of Extradition in Canada

Notes

See Also

Further Reading

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