Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part IV

Mr. Seward to Mr. Koerner.

No. 108½.]

Department of State, Washington, June 24, 1864.

Sir: I enclose for your information a transcript of a communication which I have this day addressed to the honorable Jas. F. Wilson, chairman of the Committee on the Judiciary of the House of Representatives, on the subject of the extradition of Colonel Arguelles.

I am, sir, your obedient servant,

WILLIAM H. SEWARD.

Gustavus Koerner, Esq., &c., &c. Madrid.

[Untitled]

Department of State, Washington, June24, 1864.

Sir: I have the honor now to give you the information which is found in this department, and the view which is taken of the matter referred to in your note of the 20th June instant.

The resolution which was introduced by the honorable Mr. Cox, of Ohio, and which is referred to in your note, impugns the action of the President of the United States in the recent extradition of a Spanish subject, as a violation of the Constitution of the United States and of the law of nations, and as a proceeding in derogation of that right of asylum which the resolution describes as a “distinguishing feature of our political system.” That this action of the Chief Magistrate of the nation was taken “in the absence of a law or treaty on that subject,” is assigned as the ground or occasion of its being open to these animadversions.

The gravity of the subject requires a full and careful examination of the proceeding of the Executive complained of, in its circumstances, its occasion, its motives, and its results, and a thorough inquiry into the precepts of the law of nations and the provisions of the Constitution which that proceeding is alleged to have violated. On the one hand, it never can be a matter of trivial concern to the nation that the conduct of the Chief Magistrate should really be at variance with the law of nations, which must furnish the rule for so large and important a part of the duties of his high office, or with the Constitution, to which he owes that office, and of which he is not only the servant, but also an appointed protector and defender. On the other hand, hasty or careless imputatons of such grave misconduct, if not corrected, tend to impair confidence in the government at home and respect for it abroad.

The case presented to the notice of the government of the United States, and upon which the intervention of the Executive was asked by the government of Spain, is set forth in the correspondence communicated to the Senate by the President, in answer to a resolution of that body.

In this correspondence it appears that on the 20th of November, 1863, the United States consul general at Havana apprised this government that more than one thousand African negroes had just then been brought to that city; that they had been landed at Cardenas, or Sagua, from a steamship whose name and nationality were unknown, and that very prominent and wealthy persons were implicated in the business, and that the steamer was not captured, but went to Nassau after delivering her cargo.

On the 28th of March the Secretary of State communicated this information to the Secretary of the Navy, and also to the British government. Thereupon this government and the British government, proceeding under the provisions of the treaty for the suppression of the African slave trade, united in an urgent appeal to the government of Spain to execute the laws of that country so effectually as to suppress the introduction of African slaves into the island of Cuba. The government of Spain responded to this united appeal in a kind and liberal spirit, and especially approved of the energetic action of the governor general of Cuba in executing the laws.

On the 5th of April, 1864, the minister plenipotentiary of Spain addressed a note to the Secretary of State, informing him that José Agustin Arguelles had escaped from the island of Cuba, under the charge of having sold into slavery a large number of recaptured Africans, and taken refuge in New York. The minister stated the circumstances of the case as follows, namely: That Arguelles, then an officer in the Spanish army, was, in November last, lieutenant governor of the district of Colon, and while serving in that capacity effected the seizure of a large expedition of African negroes, (being the same thousand negroes before mentioned; ) that the government of Spain, pleased with his zeal, paid him a large sum, as his share of the prize-money usually allowed to the captors of such expeditions; that he subsequently obtained a leave of absence for twenty days, to proceed to New York, on false pretences, and that after his departure it was discovered that he and other officers of the district of Colon retained and sold into slavery one hundred and forty-one of the negroes which they had recaptured; that the superior court of the island, having exclusive jurisdiction over such cases, had taken cognizance of the case, and then required the presence of Arguelles before it, to insure the prompt liberation of the one hundred and forty-one slaves, and that, without such presentation, it would be very difficult, and, at all events, it would require a long time, to attain that object.

Her Catholic Majesty’s minister asked that Arguelles might be delivered up to the government of Spain, not upon the ground of a right to demand it, but as an act of comity in the interest of justice and humanity. The culprit, being found at large in the city of New York, was delivered to the Spanish authorities by direction of the President of the United States. Immediately after the arrival of Arguelles at Havana, he was placed in custody for trial, according to the laws of his own country, and eighty-six of the recaptured Africans, whom he had sold into slavery, were restored from bondage to freedom.

It will be readily admitted that no application to our government for the discharge of a duty, or the exercise of a right which rested with it under the law of nations, could present more solemn and imposing considerations to engage its attention to an earnest and solicitous inquiry into its obligations and its powers in the premises, that it might faithfully perform the one and exercise the other. That our territory—the refuge of the innocent and oppressed—should not furnish an asylum for the guilty betrayer of human freedom; that our cherished policy for the suppression of the slave trade, to which every department of the government—legislative, judicial, and executive—had been so long and so firmly committed, should meet no check in its purpose, by its law and by its power, to drive from every sea the odious and abominable traffic; that the victims of this atrocious crime should not be left in the misery which our protection of this outlaw from the pursuing justice of his own country must fasten on them—such were the interests of society and of humanity which pressed upon the conscience of the nation, and called for the exercise of every faculty of justice and authority which the law of nations and the Constitution had vested in the Executive.

The act required by the exigency of the case was the surrender of the fugitive criminal to the public authority of the country from whose justice he had fled. The practical question for the decision of the President was, whether, in his official capacity, he possessed the authority to make this surrender. That this was the only question cannot be doubted, for no one will gainsay that to possess the requisite authority and to refuse to execute it in the case presented, when the will is free, imports moral complicity in the guilt of the criminal, and cold indifference to the continuing misery of his victims.

To determine this question of the authority and duty of the Executive involves the examination of the following considerations:

1. Whether by the law of nations the government of the United States in its relations to foreign nations is under the obligation, or possesses the authority, to surrender to the pursuing justice of a foreign state a fugitive criminal found within our territory.

2. Whether, in the absence of express treaty stipulations on our part for the surrender of such fugitive criminals, and of any legislation by Congress on the subject, the President of the United States is charged with the obligation, or vested with the authority, to make the surrender, provided such obligation rests upon, or such authority is vested in, the government.

3. Whether the occasion presented in the actual case called for the performance of this obligation by the President, if he were charged with it, or for the exercise of this authority, if he possessed it.

It will be convenient, if not essential, to consider these propositions in the order in which they are stated, and to observe a just discrimination between them as separate in their nature, and in the topics and authorities which bear upon them. By this method, too, the threefold censure of the resolution before the Committee on the Judiciary will be met, and either justified or refuted.

The points of discussion upon which the first proposition turns are few and simple. Whatever obligations, duties, powers, and relations the law of nations prescribes or attributes to any one nation as towards the other nations of the world, it prescribes and attributes to all nations equally and alike. The internal structure or distribution of the powers and duties of government, that belong to the various forms or constitutions of government which nations adopt for themselves at will, do not in the least affect the measure or the application of the precepts of the law of nations which adjust and govern international rights and obligations. No nation has been more careful to insist upon this equality of nations, whenever we had occasion to claim an international right, or, we may fairly assume, more solicitous to respect it, when a foreign state has asserted an international obligation on the part of our government. But it follows necessarily, from this primary proposition, that the domestic constitutions of government are not in the least degree the source of the international rights or obligations which nations may justly claim, or must justly submit to. These observations bring us to the same conclusion, that the United States has precisely the same obligations to perform, and possesses the same authority to exercise, towards foreign states, in the extradition of criminals, as all other nations, and that the measure and force of those obligations and of that authority are to be found exclusively in the law of nations, and not in the Constitution or in municipal legislation. It may be superfluous to sustain so obvious a truth by illustration, but our present attitude on this point towards Great Britain, France, Spain, the Netherlands, and all other maritime powers of Europe, has been so distinct, and has been so widely understood, and so fully approved by the country, that it is well to understand that it rests upon no other principles than those just laid down. We surrendered Mason and Slidell to Great Britain, we demanded the restoration of the Chesapeake, and we protest against the outfit of the Alabama, the Alexandra, and other British and French naval expeditions, and we demand indemnity for the damages which they inflict, upon these principles, and no other.

We have said to all the maritime powers that the law of nations, and not their municipal legislation or domestic jurisprudence, furnished the measure of our rights and of their obligations in the matter of naval equipments from their ports to disturb the peace of the seas and prey upon our commerce, and that the resentments and remedies of the law of nations were justly open to us if our rights and their obligations were not observed.

When we come to look at the authorities, whether institutional or judicial, which lay down the doctrine of the law of nations on the subject of the surrender of fugitive criminals, we shall find the only controverted point to be, whether such extradition is an absolute obligation without treaty stipulations concerning it, or is, in the absence of such stipulations, dependent for its exercise upon the circumstances of each case as they shall or shall not seem to the nation, to which the request is made, to furnish a just occasion for its exercise on the principles of justice, humanity, and international comity.

It would be out of place to explore and compare, in an extended survey, the text writers or the judicial decisions upon this point; yet it is important that the entire concurrence of all the authorities that the surrender of criminals is a just and proper exercise of national fight, wherever the motives of the particular case are adequate, should be understood; and that it should be also understood that the absolute obligation to make such surrender is asserted by a weight of authority equal to that which imposes a qualifying limitation upon it.

Wheaton, in his Elements of International Law, says:

“The public jurists are divided upon the question, how far a sovereign state is obliged to deliver up persons, whether its own subjects or foreigners, charged with or convicted of crimes committed in another country, upon the demand of a foreign state, or of its officers of justice. Some of these writers maintain the doctrine that according to the law and usage of nations every sovereign state is obliged to refuse an asylum to individuals accused of crimes affecting the general peace and security of society, and whose extradition is demanded by the government of that country within whose jurisdiction the crime has been committed. Such is the opinion of Grotius, Heimeccius, Burlamaqui, Vattel, Rutherforth, Schmelzing, and Kent. According to Puffendorf, Voet, Martens, Kluber, Leyser, Kluet, Saalfeld, Schmaltz, Mittermeyer, and Hefter, on the other hand, the extradition of fugitives from justice is a matter of imperfect obligation only, and though it may be habitually practiced by certain states, as the result of mutual comity and convenience, requires to be confirmed and regulated by special compact, in order to give it the force of an international law.” — Wheatot’s International Law, 1863, p. 232.

Halleck’s International Law upon the same point says:

“The extradition of persons charged with or convicted of criminal offences affecting the general peace and happiness of society is voluntarily practiced by most states, where there are no special compacts, as a matter of general convenience and comity. Some distinguished jurists have treated this question as a matter of strict right, and as constituting a part of the law and usage of nations. Others, equally distinguished, explicitly deny it as a matter of right. The weight of authority is in favor of regarding it as a matter of comity rather than of strict right, under the rules of international law as universally received and established among civilized nations. If it be regarded as a right at all, it is one of those imperfect rights which cannot be enforced, as the obligation on the other party is also imperfect and not universally, even if generally, admitted.”—Halleck’s International Law, p. 174.

Judge Story, in his Conflict of Laws, and in his Commentaries on the Constitution, observes upon the same point as follows:

“It has been often made a question, how far any nation is by the law of nations bound to surrender, upon demand, fugitives from justice, who, having committed crimes in another country, have fled thither for shelter. Mr. Chancellor Kent considers it clear upon principle, as well as authority, that every state is bound to deny an asylum to criminals, and, upon application and due examination of the case, to surrender the fugitive to the foreign state where the crime has been committed. Other distinguished judges and jurists have entertained a different opinion.”—Story on the Constitution, S. 1808.

“There is another point which has been a good deal discussed of late, and that is, whether a nation is bound to surrender up fugitives from justice who escape into its territories and seek there an asylum from punishment. The practice has beyond question prevailed, as a matter of comity, and sometimes of treaty between some neighboring states, and sometimes also between distant states, having much intercourse with each other. Paul Voet remarks, hat under the Roman Empire this right of having a criminal remitted for trial to the proper forum criminis, was unquestionable.

* * * * * * *

“It has, however, been treated by other distinguished jurists as a strict right, and as constituting a part of the law and usage of nations, that offenders charged with a high crime, who have fled from the country in which the crime has been committed, should be delivered up and sent back for trial by the sovereign of the country where they are found. Vattel manifestly contemplated the subject in this latter view, contending that it is the duty of the government, where the criminal is, to deliver him up or to punish him; and if he refuses so to do, then it becomes responsible, as in some measure an accomplice in the crime. This opinion is also maintained with great vigor by Grotius, by Heimeccius, by Burlamaqui, and by Rutherforth. There is no inconsiderable weight of common-law authority on the same side, and Mr. Chancellor Kent has adopted the doctrine in a case which called directly for its decision.”—Story’s Conflict of Laws, pp. 517, 520, 521, sec. 626, &c.

Chancellor Kent, in a judicial decision, where the very point was in judgment, gives an unqualified support to the view that the extradition is obligatory, in the absence of treaty stipulations, by the law of nations:

“It is the law and usage of nations, resting in the plainest principles of justice and public utility, to deliver up offenders charged with felony and other high crimes, and fleeing from the country in which the crime was committed into a foreign and friendly jurisdiction.

“This doctrine is supported equally by reason and authority.”

He quotes the foreign text writers, and the English cases, and finds no authority for Coke’s rejection of the right in the passage so frequently cited from the Institutes.

The 27th article of the British treaty, 1795, “was only declaratory of the law of nations, as well as, also, a number of other articles in the same treaty.”

“These articles were the recognition, not the creation of right, and are equally obligatory upon the two nations, under the sanction of public law, since the expiration of that treaty as they were before.

“If the treaty restricted the application of the rule, yet upon the expiration of that treaty the general and more extensive rule of the law of nations revived.”—Matter of Washburn, 4 Johns, Ch. R. 106.

Chief Justice Tilghman, of Pennsylvania, in a case which came before him, decided that the judiciary could not act in the arrest of a foreign criminal upon the complaint of a private person, and that the Executive alone can initiate the proceeding of extradition. He is the principal judicial authority in this country opposed to Chancellor Kent upon the controverted point of the obligation to surrender foreign criminals. Yet in the following observations he fully maintains the right and power of a government to make the surrender upon motives satisfactory to itself:

“The more deeply the subject is considered, the more sensible shall we feel of its difficulties, so that upon the whole the safest principle seems to be that no state has an absolute and perfect right to demand of another the delivery of a fugitive criminal, though it has what is called an imperfect right—that is, a right to ask it as a matter of courtesy, good will, and mutual convenience. But a refusal to grant such a request is no just cause of war.

“It is certain that this matter of delivering up is an affair of state, in which the judges and inferior magistrates cannot act, but as auxiliary to the executive power. The demand of the foreign court is addressed to none but the Executive; and none other power than the Executive has a right to comply with that demand.

“If these principles be just, it follows that under existing circumstances no magistrate in Pennsylvania has a right to cause a person to be arrested in order to afford an opportunity to the President of the United States to deliver him to a foreign government. But what if the Executive should hereafter be of opinion, in the case of some enormous offender, that it had a right, and was bound in duty to surrender him, and should make application to a magistrate for a warrant of arrest? That would be a case quite different from the one before me, and I should think it imprudent at the present moment to give an opinion on it. Every nation has an undoubted right to surrender fugitives from other states. No man has a right to say, I will force myself into your territory, and you shall protect me.”—Commonwealth vs. Deacon, 10 S. and R., 123.

It has sometimes been said that Judge Story, though he expresses no opinion in his Commentaries (cited above) on this point in difference between Chancellor Kent and Chief Justice Tilghman, yet, incidentally, gives the great weight of his authority against the obligation of surrender, aside from treaty stipulations, in a reported case. An examination of that case, however, will show that his observations are only upon the point, and to the effect, that the judiciary cannot by any original authority make the surrender.

The prisoner in the case before him had been acquitted, on the ground that the homicide was committed within the jurisdiction of the Society Islands, and not on the high seas. The district judge suggested whether it was not the duty of the court to remand the prisoner to the foreign government for trial. Mr. Justice Story said:

“That he had never known any such authority exercised by. our courts, except where the case was provided for by the stipulations of some treaty. He had great doubts whether, upon principles of international law, and independent of any statutable provisions or treaty stipulations, any court of justice was either bound in duty or authorized in its discretion to send back any offender to a foreign government whose laws he was supposed to have violated.”—2 Sumn., R., 486.

It is manifest from these citations that a violation of the law of nations is not predicable of the surrender by one nation to another of a fugitive criminal. Indeed, it might as well be charged that a treaty stipulation between the nations making such surrender of reciprocal obligation was in violation of, and not in obedience to, the law of nations, as that an individual act of extradition of a criminal was such violation. The quality of the act, as at variance or in accord with the law of nations, is not affected by its frequency or by the stipulation in advance for its performance.

We may conclude, then, upon the plainest reason and a uniform concurrence of authority, that the United States, in its relations to foreign nations, certainly possesses the authority to surrender to the pursuing justice of a foreign state a fugitive criminal found within our territory.

It is not at all important to solve the dispute whether this authority is accompanied or not with an absolute obligation to make the surrender. If the surrender, by the true principles of the law of nations, be indeed obligatory, then a refusal or omission to make the surrender would be a violation of that law. If, on the other hand, it be a mere right, and not a complete obligation, the exercise of that right is a pursuance, and not a violation, of the law of nations. Whether a surrender of a criminal, as actually made, was by the proper authority or department of the government making it, is never a question under the law of nations, but wholly under the constitutional or municipal law of that government, distributing powers and duties among its own magistrates and departments.

Whether the executive act under consideration is amenable to censure, as not within the competency of the President under the Constitution, is yet to be considered; but, however this may be, the censure of such executive act, as a violation of the law of nations, (asserted in the resolution before the Judiciary Committee,) is conceived in error and unsupported by the authority of any publicist or of any adjudication.

The second topic of the inquiry is now to engage our attention, and it is well to state how far the preceding views, if correct, have advanced its discussion, and what are the true limits of its further consideration.

It appears, then, that there rests with the United States, as a nation, either an obligation or an authority to make extraditions, whenever the case presented calls for the exercise of the power.

It appears that there is not, and never has been, any treaty stipulations with Spain on the subject of the extradition of criminals. It appears that there is not, and never has been, any national legislation touching the subject of the extradition of criminals, except in connection with treaty stipulations with particular nations; that, consequently, the legislative will has never been expressed as to the mode by which, or the department of the government by which, the actual discharge of the international obligation, if it be such, or exercise of the national authority for the extradition of criminals, is to be performed.

In this predicament of the public and municipal law it will at once be seen that there is room for much diversity of opinion as to the legal consequences, as affecting the authority and duty of government, which flow from it. Accordingly, it will be found that in the discussion and action upon the subject which have arisen, upon the exigencies which presented themselves, various theories have divided the assent of the best instructed and most candid minds. These may all be assigned to one or the other of the following views:

1. That the extradition of criminals, in cases where the law of nations called for its being made, could not be directed or executed by any department of the federal government for want of an act of Congress in the premises.

2. That the several States of the Union might make extradition of criminals to foreign nations, even if the national authority on the subject were set in activity by the treaty-making or legislative power of the federal government, and certainly if these powers remained dormant.

3. That the international obligation to surrender criminals was not absolved, nor the national authority to make such surrender paralyzed or suspended, by the omission of Congress to legislate as to the manner and form of effecting the extradition; and that it belongs to the executive of the nation to perform this international obligation, or execute this national authority, by virtue of his office as established by the Constitution of the United States, excluding, on the one hand, the competency of the federal courts to make the surrender as a judicial function, and, on the other, the authority of the separate States of the Union to make it at all.

It is believed that no judicial decision of the federal courts upon the direct question of the power or duty of the President of the United States in the premises has ever been made, and that no case has ever presented the point directly for decision. In the case already cited from Johnson’s Reports, Chancellor Kent adjudicated the point in favor of the President’s authority. In the case of Holmes, which came before the supreme court of Vermont in banc, the precise point, as a legal question, was decided in favor of the executive authority, that authority having been exercised by the governor of Vermont for the extradition of a Canadian murderer, before the treaty with Great Britain of 1842, and without any legislation of the State on the subject. The supreme court of Pennsylvania, in the case already cited from Sergeant vs. Rawle, expressly withheld its opinion upon the point, as not being in judgment before it, and left it for future consideration, when a case should arise, whether the executive of the nation, or of the State, possessed this power, without the support of a treaty or of legislation.

In this posture of judicial decisions upon the point, there are some principal sources of instruction and assistance in arriving at a correct conclusion, which might aid or correct general reasoning and general authorities on the subject:

1. The observation of learned judges and their decisions, in cases involving any of the principles, or presenting analogies.

2. The practice of the government in its foreign intercourse in questions arising under the law of nations, whether in its own conduct towards foreign nations, or in its demands and expectations from them.

Before proceeding to the examination of these sources of information and instruction, it is well to recur to a consideration of the true nature and limits of the determination to be sought, as not being wholly legal or judicial, but of State and of administration.

Attorney General Wirt, in one of his opinions, to be referred to hereafter more at large, thus clearly presents this important distinction, in reply to questions propounded by the Secretary of State:

“The questions which I understand to be propounded for my opinion are:

“1st. Whether we are under obligation and have the power to restore the slave? and if so,

“2d. What form of proceeding should be adopted for this purpose?

“I beg leave to premise that both these questions rest chiefly on national and constitutional law, and on the practice of the government, of which I presume the evidence is to be found in the archives of the state. They are not, therefore, exclusively within the province of this office; but, on the contrary, are questions which address themselves as appropriately to the statesman as the lawyer. I remind you of this truth, that more weight may not be attached to my opinion, under the notion of its being official, than it fairly deserves; and having made this suggestion, I proceed with great respect to express my opinion on the question propounded to me.”

The attention of the government to this precise subject of the action of the Executive in the surrender of criminals, and of the rules of the law of nations on the subject, seems first to have arisen upon a demand by Spain for the delivery of one Jones, a criminal who had fled from Florida, a Spanish dominion. Attorney General Lee gives to the Secretary of State, on the 26th January, 1797, this opinion:

“If a demand were formally made that William Jones, a subject and fugitive from justice, or any of our own citizens, heinous offenders within the dominion of Spain, should be delivered to their government for trial and punishment, the United States are in duty bound to comply; yet, having omitted to make a law directing the mode of proceeding, I know not how, according to the present system, a delivery of such offender could be effected. To refuse or neglect to comply with such a demand may, under certain circumstances, afford to the foreign nation just cause for war, who may not be satisfied with the excuse that we are not able to take and deliver up the offenders to them. This defect appears to me to require a particular law.”—Opinion of Attorney General, vol. 1, pp. 69, 70.

It will be observed that this opinion recognizes the complete obligation, though there was no treaty, and the exposure even of the country to war for its non-fulfilment, but finds a complete paralysis of means to perform the duty or avert the perils, for lack of a law of Congress in the premises. In a word, the Attorney General puts the matter distinctly upon the same considerations as would govern if there were a treaty requiring extradition, but no law of Congress providing modes and forms for executive action under it. For no one can demand for a treaty stronger obligation or sanction than that “the United States are in duty bound to comply” with it, and that “to refuse or neglect to comply may, under certain circumstances, afford the foreign nation just cause of war.”

The next occasion upon which the question arose for the action of the government was in the noted case of Thomas Nash, alias Jonathan Bobbins, in the year 1799, claimed under the 27th article of the British treaty. The surrender of the alleged criminal was made by the President, there being no act of Congress as to the mode or agent for the execution of the stipulations of the treaty.

The legal question then of the power of the President to make the surrender, which was obligatory upon the nation, was precisely the same as Attorney General Lee had eonceived it; and if his view of the necessity of an act of Congress to invigorate the executive function was sound, the extradition should have been refused to England in 1799, as it had been to Spain in 1797.

The action of the Executive in the extradition became the subject of an earnest and most able debate in the House of Representatives, where the arguments on one side and the other were pressed with the utmost skill and force. The celebrated speech of John Marshall, sustaining the action of the President, in its exposition of the doctrines of the law of nations and of the Constitution, which controlled the subject, carried, with Congress and with the country, a judicial weight scarcely surpassed by that awarded to any of his subsequent judgments as Chief Justice.

This debate, in its result, may be considered as establishing two propositions: First, that an international obligation, resting upon the government, may be discharged under the Constitution without the aid of an act of Congress. Second, that it was an executive and not a judicial function, to be performed by the President by mere virtue of his office under the Constitution, without the need of any authority from Congress, or of any agency of the courts. It was strenuously contended that the function was in its nature judicial, and must be attributed to the judicial tribunals, and the action of the President was sought to be impugned as wresting the subject from the constitutional control of the judiciary.

Mr. Marshall thus announced the doctrines on this point, which received the assent of Congress and of the country:

“The case was in its nature a national demand made upon the nation. The parties were two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance.

“The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him.

“He possesses the whole executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.

“He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty, where he, and he alone, possesses the means of executing it.

“The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. The means by which it is be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress unquestionably may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but till this be done, it seems the duty of the executive department to execute the contract by any means it possesses.

“The executive is not only the constitutional department, but seems to be the proper department to which the power in question may most wisely and most safely be confided.

“The department which is intrusted with the whole foreign intercourse of the nation, with the negotiation of all its treaties, with the power of demanding a reciprocal performance of the article, which is accountable to the nation for the violation of its engagements with foreign nations, and for the consequences resulting from such violation, seems the proper department to be intrusted with the execution of a national contract like that under consideration.

“If at any time policy may temper the strict execution of the contract, where may that political discretion be placed so safely as in the department whose duty it is to understand precisely the state of the political intercourse and connexion between the United States and foreign nations, to understand the manner in which the particular stipulation is explained and performed by foreign nations, and to understand completely the state of the Union?”

The whole speech of Mr. Marshall, by the method of the closest and most irresistible reasoning, exhibits the conformity of these doctrines with the Constitution, with the principles of international law, and with the established practice of the government, in the maintenance of the international obligation of neutrality, in the surrender by the Executive to one belligerent of prizes taken by the other, in violation or in fraud of our neutrality. This international obligation, though without treaty, he asserted, rested upon the same principles, and was identical in character, with the extradition of criminals. He exposes the error which had described the surrender of prizes in the practice of the government as a judicial proceeding, and exhibits it in its true light as an executive act under the law of nations. A brief quotation from his argument on this point is not out of place, and the whole speech is most worthy of attention. It is found in full in the appendix to 5 Wheat. Rep., in 2 Benton’s Debates, and in Wharton’s State Trials.

Mr. Marshall says:

“It has been contended that the conduct of the Executive on former occasions, similar to this in principle, has been such as to evince an opinion even in that department that the case in question is proper for the decision of the courts.

“The fact adduced to support this argument is the determination of the late President on the case of prizes made within the jurisdiction of the United States, or by privateers fitted out in their ports.

“The nation was bound to deliver up those prizes, in like manner as the nation is now bound to deliver up an individual demanded under the twenty-seventh article of the treaty with Britain. The duty was the same and devolved on the same department.

“The decision then on the case of vessels captured within the American jurisdiction by privateers fitted out of the American ports, which the gentleman from New York has cited with such merited approbation, and which he has declared to stand upon the same principles with those which ought to have governed the case of Thomas Nash, which deserves the more respect because the government of the United States was then so circumstanced as to assure us that no opinion was lightly taken up and no resolution formed but on mature consideration—this decision, quoted as a precedent and pronounced to be right, is found, on full and fair examination, to be precisely and unequivocally the same with that which was made in the case under consideration. It is a full authority to show that, in the opinion always held by the American government, a case like that of Thomas Nash is a case for executive and not judicial decision.

Of the acquiescence of Congress and of the public opinion of the country in the positions of Mr. Marshall, sustained at the time by nearly a two-thirds vote of the House of Representatives, the strongest evidence is to be found in the omission of Congress to pass any act during the period that the extradition article of the British treaty of 1795 was in force, and from a similar omission after the negotiation of the treaties of 1842 with Great Britain, and of 1843 with France—each containing an extradition article—until the year 1848, after a judicial doubt thrown upon the point by a difference between the federal judiciary and a justice of the supreme court of New York, arising in the case of Metzger, claimed under the French treaty. In this case of Metzger, arising in the year 1847, the learned judge of the district court of the southern district of New York held that an act of Congress was unnecessary to enable the Executive to carry into effect the extradition article of the treaty with France. A learned justice of the supreme court of New York held otherwise, and that, in the absence of an act of Congress, the federal Executive could not make the extradition. (1 Barb. S. C. R., 248.) The case was then brought before the Supreme Court of the United States in a petition for habeas corpus. The court dismissed the petition on the ground that it had no jurisdiction to issue a habeas corpus for the purpose of reviewing the decisions of the United States district judge; but in the opinion of the court, delivered by Mr. Justice McLean, it is declared that the action of the Executive in the case was “proper,” and “the most appropriate, if not the only mode of giving effect to the treaty,” and that the aid of legislation was unnecessary. (5 How. U. S. Rep., 188–9.)

It may be considered, therefore, that the political and judicial departments of the government concurred in the opinion, that when there was an obligation, or an authority, resting with the federal government, for the extradition of a criminal, it was to be carried out as an executive and not as a judicial act, and that the aid of Congress was not needed for the competent discharge of the obligation or exercise of the authority.

This point being now cleared up, namely, that the absence of an act of Congress does not paralyze the executive function in the discharge of an international duty, or the exercise of an international power, the question reverts to the original one, viz: does the absence of an express treaty displace the international obligation and the national authority on the subject of the extradition of criminals, in the maintenance of the foreign intercourse of the government?

The interval between the expiration of the extradition article of the British treaty of 1795 and the negotiation of the treaty of Washington, in 1842, raised the point for Executive consideration in several cases, and in a case of marked interest and difficulty brought it for judicial observation, though not for express judgment, before the Supreme Court of the United States.

It was undoubtedly the habit of the federal Executive to decline to make a surrender of a fugitive criminal, during the interval, upon the application of the British government, and in the cases presented to it, which were of ordinary, though sometimes heinous, crime. From this arose another habit of extradition in satisfaction of what was clearly recognized as a necessary measure of justice and humanity, as well as of self-protection—that is to say, an extradition by the State governments upon the direct application of foreign governments. This habit was acquiesced in (and approved in some instances) by the executive department of the federal government.

The legislature of New York passed a general law regulating the proceedings for such extraditions by the Executive of the State, and the surrender of criminals, of course without treaty, under the general authority or obligation of the law of nations, and in the notion that this right of sovereignty pertained to the States, became systematic.

In this situation of the habits of the federal and State governments on the subject a notorious case of crime occurred in the Netherlands, in the robbery of the jewels of the Princess of Orange. The diplomatic representative of that government applied to the government of the United States for the extradition of the criminal, who was found in the city of New York. Attorney General Taney gave to Mr. Livingston, then Secretary of State, an opinion as to the propriety of the surrender by the federal Executive in these terms: “As there is no stipulation by treaty between the two governments for the mutual delivery of fugitives from justice, I think the President would not be justified in directing the surrender of the person upon whom a part of the stolen articles may have been found, in order that he may be brought to trial in the country where he is supposed to have committed the robbery.” (Opinions of Attorneys General, vol. 2, p. 452.) Mr. Livingston, in communicating the decision of the President, expresses to the minister of the Netherlands his hopes “that, from the authorities of the State of New York having taken cognizance of the matter, the objects in view may be obtained by the means now pursuing, as effectually and more constitutionally than they could have been by a literal compliance with the request which has been made.” The Department of State sent the correspondence with the minister of the Netherlands, at his request, to the governor of the State of New York, and that magistrate (Governor Throop) issued his executive warrant for the delivery of the criminal to the minister of the Netherlands, “to the end that he may he placed under the jurisdiction of the said kingdom of the Netherlands, to be dealt with for his supposed crime, according to the laws and justice of the said kingdom.”

In the State of Vermont a like habit of extradition had sprung up, and there the governor, without any law of the State on the subject, and, of course, without treaty, as a direct exercise of authority under the law of nations, and not forbidden to the States by the federal Constitution, made the extradition by his executive warrant. Upon habeas corpus sued out by the criminal, upon solemn argument the supreme court of Vermont, in full bench, held the extradition to be in pursuance of the law of nations, to be valid without legislation, and to be competent to the State under the Constitution of the United States. The judgment of the State court was brought up for review to the Supreme Court of the United States, and the opinion of the learned justices of that court will, by a little attention to the true point in controversy, be seen to bear upon the point we are now considering, viz., whether a treaty is the source, under the Constitution of the United States, of the executive authority to surrender criminals, or whether the law of nations supplies that authority to the nation, and the Constitution itself confers the exercise of it upon the President.

The point in judgment in Holmes vs. Jennison (14 Pet. Rep., 649) was whether the States had authority to surrender criminals when the United States had made no treaty and no law upon the subject. It was conceded on all hands that this authority belonged to sovereignty, and that its exercise remained with the States unless, at the time of such exercise, it rested with the United States under the Constitution, and unless its concurrent exercise by the States was incompatible with its possession by the federal government. It was apparent, therefore, that if a treaty was necessary to put the federal government in possession of this authority, there being no such treaty, the action of the State of Vermont was within its competency; but if the federal government was in possession of this authority without a treaty, then the action of the State was beyond its competency, unless a concurrent authority was admissible.

Accordingly, Mr. Justice Thompson with his usual discrimination makes the turning point of the jurisdiction of the court to be, whether this power of surrendering criminals was in the government of the United States by the Constitution, or whether it needed to have its being and origin in a treaty. He rejected the jurisdiction for the reason that he held a treaty necessary to confer the power on the government. He observes:

“There is certainly no specific provision in the Constitution on the subject of surrendering fugitives from justice from a foreign country, if demanded, and we are left at large to conjecture upon various parts of the Constitution, to see if we can find that such power is, by fair and necessary implication, embraced within the Constitution. I mean, whether any such obligation is imposed upon any department of our government by the Constitution to surrender to a foreign government a fugitive from justice; for unless there is such a power vested somewhere, it is difficult to perceive how the governor of Vermont has violated any authority given by the Constitution to the general government. If such a power or obligation in the absence of any treaty or law of Congress on the subject rests anywhere, I should not be disposed to question its being vested in the President of the United States. It is a power essentially national in its character, and required to be carried into execution by intercourse with a foreign government, and there is a fitness and propriety of this being done through the executive department of the government, which is intrusted with authority to carry on our foreign intercourse.

“And unless the President of the United States is, under the Constitution, vested with such power, it exists nowhere, there being no treaty or law on the subject. And it appears to me indispensably necessary, in order to maintain the jurisdiction of this court in the present case, to show that the President is vested with such power under the Constitution.”

“The Secretary of State, in answer to the letter of the governor of Vermont on the subject, says:

“I am instructed by the President to express his regret to your excellency that the request of the acting governor of Canada cannot be complied with under any authority now vested in the executive government of the United States, the stipulation between this and the British government for the mutual delivery over of fugitives from justice being no longer in force, and the renewal of it by treaty being at this time a subject of negotiation between the two governments.

“Here, then, is a direct denial by the President of the existence of such a power in the executive, in the absence of any treaty on the subject; and such has been the settled and uniform course of the executive government of the United States upon this subject since the expiration of our treaty with England. And if this be so, it may be emphatically asked what power in the general government comes in conflict with the power exercised by the governor of Vermont? In order to maintain the jurisdiction of this court in the present case, it must be assumed that the President has under and by virtue of the Constitution, in the absence of any treaty on the subject, authority to surrender fugitives from justice to a foreign government; otherwise it cannot be said that the governor of Vermont has violated the Constitution of the United States.

“This power to surrender fugitives from justice to a foreign government has its foundation, its very life and being, in a treaty to be made between the United States and such foreign government, and is not by the Constitution vested in any department of our government without a treaty.”

On the other hand, Chief Justice Taney, and Justices Story, McLean, and Wayne, sustained the jurisdiction, the Chief Justice delivering an elaborate opinion. A few citations from this opinion will show that these four learned justices took the opposite view to Judge Thompson’s, and construed the Constitution itself as lodging the power in the federal government, antecedent to and independent of treaty stipulations.

Chief Justice Taney says:

“This case presents a question of great importance, upon which eminent jurists have differed in opinion. Can a State, since the adoption of the Constitution of the United States, deliver up an individual found within its territory to a foreign government, to be there tried for offences alleged to have been committed against it? This involves an inquiry into the relative powers of the federal and State governments upon a subject which is sometimes one of great delicacy.

“The power which has been exercised by the State of Vermont is a part of the foreign intercourse of this country, and has undoubtedly been conferred on the federal government.

“As the rights and duties of nations towards one another in relation to fugitives from justice are a part of the law of nations and have always been treated as such by the writers upon public law, it follows that the treaty-making power must have authority to decide how far the right of a foreign nation in this respect will be recognized and enforced when it demands the surrender of any one charged with offences against it. Indeed, the whole frame of the Constitution supports this construction. All the powers which relate to our foreign intercourse are confided to the general government. The power of deciding whether a fugitive from a foreign nation should or should not be surrendered was necessarily a part of the powers thus granted.”

The writ of error was dismissed on an equal division of the court, some special grounds of dissent from the opinion of Chief Justice Taney being taken by the other associate justices. But it was so apparent that, on the merits, a majority of the court were with the Chief Justice, that upon a new hearing in the supreme court of Vermont the prisoner was discharged, on the ground that it was contrary to the Constitution of the United States for a State to make extradition of criminals.

In the case of Kaine, whose extradition had been claimed under the British treaty by a direct application to a judicial officer of the United States, the question was brought up for review, and the point was taken that the application must be made by the foreign government to the Executive of the United States, and that the auxiliary judicial inquiry of fact must be made upon his institution. The case was dismissed upon the concurrence of a majority of the court on a question of jurisdiction. In the opinion of Mr. Justice Nelson, in which Chief Justice Taney and Mr. Justice Daniel concurred, the character of extradition, as an executive and not a judicial function, is thus stated:

“It may, I think, be assumed at this day, as an undoubted principle of this government, that its judicial tribunals possess no power to arrest and surrender to a foreign country fugitives from justice, except as authorized by treaty stipulations and acts of Congress passed in pursuance thereof. Whether Congress could confer the power independently of a treaty is a question not necessarily involved in this case and need not be examined. If it was, as at present advised, I am free to say that I have found no such power in any article or clause of the Constitution delegated to that body by the people of the State.

“When the casus fæderis occurs, the requisition or demand must be made by the one nation upon the other; and, upon our system of government, a demand made upon the nation must be made upon the President, who has charge of all its foreign relations, and with whom only foreign governments are authorized or even permitted to hold any communication of a national concern. He alone is authorized by the Constitution to negotiate with foreign governments and enter into treaty obligations binding upon the nation; and in respect to all questions arising out of these obligations, or relating to our foreign relations, in which other governments are interested, application must be made to him. A requisition or demand, therefore, upon this government must, under any treaty stipulation, be made upon the Executive, and cannot be made through any other department or in any other way.”

And the learned justice then quoted, with approval, certain propositions of Mr. Marshall on this point, above given from his speech in the case of Thomas Nash.

Upon a survey of all these cases before the federal and State judiciaries, in much diversity and no inconsiderable contrariety of theory and reasoning, it may confidently be asserted that the weight of authority holds—

First. That the function of extradition is executive and not judicial.

Second. That it pertains to the federal and not to the State governments.

Third. That it is conferred on the federal government by the Constitution itself, and exists antecedent to and independent of treaties.

Fourth. That it is attributed to and may be exercised by the Executive without the need of legislative aid.

Upon the primary question whether, by the law of nations, extradition of fugitive criminals is absolutely obligatory, or only discretionary, upon considerations of justice, humanity and comity, it may be stated that the latter seems to be the view more generally accepted in the federal jurisprudence, the obligation being considered as imposed only by treaty stipulations to that effect. This view was held by Attorney General Wirt, and the expediency of exercising this discretionary power by the Executive, in proper cases, was recognized by him. In giving these views in a case presented by the Executive for his official advice, he accompanies them with the suggestion that the aid of legislation is necessary, and should be given. An examination of Mr. Wirt’s opinion given to the government on the subject of the surrender of property by the Executive, on requisition, (which Mr. Marshall, as we have seen, demonstrated to be identical in principle with the extradition of criminals,) will, we think, forcibly expose his error in this view of the need of legislative aid to invigorate the executive authority.

Mr. Wirt says, in an opinion under date of November 20, 1821:

“The truth seems to be that this duty to deliver up criminals is so vague and uncertain as to the offences on which it rests, is of so imperfect a nature, as an obligation, is so inconveniently encumbered in practice by the requisition that the party demanded shall have been convicted on full and judicial proof, or such proof as may be called for by the nation on whom the demand is made, and the usage to deliver or to refuse, being perfectly at the option of each nation, has been so various and consequently so uncertain in its action, that these causes combined have led to the practice of providing by treaty for all cases in which a nation wishes to give herself the right to call for fugitives from her justice.

“I am further of the opinion that even if, by the laws and usages of nations, the obligation existed, and were a perfect obligation, and the proof which is offered of the guilt of the accused also satisfied the requisitions of that law, still the President has no power to make the delivery. The Constitution, and the treaties and acts of Congress made under its authority, comprise the whole of the President’s power. Neither of these contains any provision on the subject. He has no power to arrest any one, except for the violation of our own laws. A treaty or an act of Congress might clothe him with the power to arrest and deliver up fugitive criminals from abroad, and it is, perhaps, to be desired that such a power existed, to be exercised or not, at his discretion, for although not bound to deliver up such persons, it might very often be expedient to do it. There could certainly be no objection to the exercise of such power in a case like the present. It would violate no claim which these fugitives have on us. Humanity requires us to afford an asylum to the unfortunate, but not to furnish a place of refuge to the guilty. On the other hand, respect for ourselves, and a prudent regard for the purity of our society, admonish us to repel rather than to invite the admixture of foreign turpitude and contamination.

“There is another consideration connected with this subject which I beg leave to bring to your view. The people of the United States seem to have contemplated the national government as the sole and exclusive organ of intercourse with foreign nations. It ought, therefore, to be armed with power to satisfy all fair and proper demands which foreign nations may make on our justice and courtesy, or, in other words, with power to reciprocate with foreign nations the fulfilment of all the moral obligations, perfect and imperfect, which the law of nations devolves upon us as a nation. In this respect our system appears to me crippled and imperfect. It might be set to rights, with regard to the subject under consideration, by an act of Congress providing for the punishment of our own citizens who, having committed offences abroad, come home for refuge, and for the delivery of foreign culprits who flee to us fer shelter”.—Opinions of Attorneys General, p. 519, &c.

Attorney General Legare, in an opinion given October 11, 1841, puts the matter of declining the extradition wholly on the practice of the government:

“According to the practice of the executive department, the President is not considered as authorized, in the absence of any express provision by treaty, to order the delivering up of fugitives from justice.

“Whatever I might think of the power of the federal executive in the premises, were this a new question, I consider the rules laid down by Mr. Jefferson, and sanctioned after the lapse of upwards of thirty years by another administration, as too solemnly settled to be now departed from.”—Opinions of Attorneys General, vol. 111, p. 661.

Attorney General Gushing, in an opinion under date August 19, 1853, gives his views on the general subject, in disposing of an application to this government to demand the extradition of a criminal, fled to the British provinces, charged with a crime not enumerated in our treaty with Great Britain. Mr. Gushing says:

“I have examined the papers which you were pleased to submit to me in the case of the people of New York vs. Aaron Wing, from which it appears that said Wing is under indictment for larceny, alleged to have been committed by him in violation of the laws of the State of New York, and is now a fugitive from justice in the British provinces, and application is made to you for process to obtain the extradition of said Wing.

“Larceny is not among the cases provided for by any convention between the United States and Great Britain. The crimes enumerated in the treaty of 1842, which now governs the question, are murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery in the utterance of forged papers. It is, therefore, in these cases only that by treaty either government can claim the extradition of fugitives from justice taking refuge in the dominions of the other.

“It is the settled political doctrine of the United States that, independently of special compact, no state is bound to deliver up fugitives from the justice of another state.”—See the authorities collected in Wheaton’s Elements, p. 172.

“It is true, any state may, in its discretion, do this as a matter of international comity towards the foreign state, but all such discretion is of inconvenient exercise in a constitutional republic organized as is the federal Union; and accordingly it is the received policy of this government to refuse to grant extradition, except in virtue of express stipulations to that effect.”—Mr. Legare’s opinion, October 11, 1841.

“Special reasons exist to dictate reserve in the matter of extradition. If the enumeration of cases for the claim of extradition in existing treaties be not sufficiently ample, it would seem better to enlarge the same by further mutual stipulations rather than at the mere discretion of the President.”—Opinions of Attorneys General, vol. 6, pp. 85, 86.

It is believed that these opinions of successive Attorneys General indicate the views, from time to time, on which the practice of the government of the United States has been to decline the extradition of criminals in such cases as have arisen, in the absence of treaty stipulations. The theory upon which this practice has from time to time been rested, has not always been fully indicated in the opinions given by these learned officers, but unquestionably it has had its origin in the error, as it is confidently submitted later judicial discussions have shown it to be, that treaties conferred the power on the government, and legislation must attribute the function to the Executive; whereas the very existence of the government, as that of a nation among nations, devolved this power and responsibility upon the government, and the Constitution itself attributed this executive function, with all others, to the President.

It has already been suggested that the practice of the government upon a branch of international relations whose just conduct, under the law of nations and the Constitution of the United States, rests upon the same principles which must govern this subject of extradition, has uniformly recognized the duty and ability of the government, in its executive department, to represent and act for the nation, without deriving power from treaties or from Congress.

Under the administration of Washington the whole subject of the powers and duties of the government, under the law of nations, and of the assignment of these powers and duties to the executive department, was settled upon the surest foundations of principle. And the practice of the government has never departed from the rules then established.

An adherance to these rules, upon all occasions, when the nation, as a neutral, has been called upon to fulfil obligations to belligerents, has preserved us from being drawn into hostilities, and made our conduct an illustrious example and guide for the great powers of the civilized world. Under the present administration the Executive has adhered to the same principles in the relations which the civil war has induced between this government and the maritime powers of Europe. To these principles the Executive has looked for the measure of the obligations of one nation to another, under the law of nations, and for the measure and support of the executive authority in the premises without the presence of treaty stipulations or of the legislation of Congress, The course of discussion, diplomatic and popular, has brought so distinctly and so recently before the public mind the historical illustrations of the conduct of our government, and the action of the present administration is so freshly in the public attention, that it is unnecessary to insist upon the transactions in detail. It is sufficient to say that the proposition of Mr. Marshall, assented to by his great opponents in debate, that the executive function of the extradition of criminals, under the law of nations and the Constitution of the United States, “is precisely and unequivocally the same” as that of the surrender of prizes, has never been refuted, and is believed to be impregnable.

Mr. Wirt, in his office of Attorney General, was called upon to advise the Executive as to its duty in certain cases where surrender was claimed from the government by foreign nations. In two of these cases the subject of the surrender claimed was slaves—a subject, under the general law of nations, falling more properly under the head of extradition of persons, than of delivery of property. In neither of these cases, besides, were the slaves charged as criminals, so that their case fell within the privilege of asylum, which civilized nations, and this nation more than all others, so strenuously and so resolutely maintain in protection of all refugees from political prosecution or personal oppression.

I proceed to quote from Mr. Wirt’s opinions. Under date of November 7, 1821, the Attorney General, in the case of a vessel under consideration, upholds the executive power, and insists upon the international duty to make the surrender, even to the point of arresting private judicial proceedings against the vessel.

“If the President of the United States is satisfied that the seizure of La Jeune Eugenie by the United States schooner Alligator, Lieutenant C. Stockton commander, was a violation of the sovereignty of the King of France, and that she ought to be restored on the demand of the French minister, I can perceive no impropriety in adopting the course which was pursued in the case of the Exchange, and approved by the Supreme Court, (7th Cranch, 116,) that is, to disclose this fact to the court, before which the case is depending, by a suggestion to be filed by the attorney for the United States. It was the course which was pursued by President Washington in 1796, with regard to the Cassius, an armed vessel bearing the commission of the French republic.”—(2 Dallas, 365.)

“The federal courts are not more completely vested with the judicial power of the nation than the Executive is with that portion of the national power which relates to foreign nations; and when one of our citizens (in that freedom of action which belongs to them all) has carried before our tribunals a subject in which, according to the opinion of the Executive, they cannot proceed without violating the rights of foreign nations, and endangering thereby the peace of our own, it appears to me that it would be a palpable dereliction of duty on the part of the Executive to withhold the communication of this opinion from the court.”—Opinions of Attorneys General, vol. 1, pp. 504-‘6.

Again, under date of January 22, 1822, Mr. Wirt advises the surrender to the French government of certain Africans:

“I have again considered the request of the French minister that the Africans found on board the French brig La Pensee, on her recapture from the pirates, should be delivered to him, as having been found on board of a French vessel, he proposing to restore them to their native land, from which they have been unlawfully taken; and it appears to me entirely proper to accede to his request.

“The Africans in question are not in the predicament in which our statutes prescribe the duty of the President; there has been no intention to violate our laws; they were not on their way to this country when captured by the pirates, nor when recaptured from them. They are not, therefore, within the provisions of any of our statutes.

“It has been doubted whether you have any power to act on the subject; but it was determined in the case of the Jeune Eugenie that we had no right to meddle with the flag of France, and that when a vessel covered by that flag had been turned from her course by one of our cruisers the President had power to restore her, or to hand her over, on application of the minister of France, to the French consul. It is, in my opinion, for the exercise of the same power only that the French minister has called here.”— Opinions of Attorneys General, vol. 1, pp. 534, 535.

In the year 1822 the minister of Denmark demanded the extradition of a slave who had hid himself on board an American vessel when in a port of the Danish island of St. Croix. The presence of the fugitive on board had not been discovered till the vessel was well on its voyage, and he was brought to New York; The views of Mr. Wirt on the public and constitutional questions presented to him are remarkably clear and thorough. That so lamentable and perverse a misapplication of them should be made, must be ascribed to the then policy and principles of our government on the subject of slavery. Under date of September 27, 1822, Mr. Wirt says:

“From these views I am of the opinion that it is due to the sovereignty of Denmark, and to our own character as a nation, to restore this slave to the condition from which he has been taken, by a ship carrying our flag, and belonging to our citizens, and that the policy of our own laws conspires to enforce the performance of this duty.

“With regard to the President’s power to order the restitution, I consider the question as settled long since by the practice of the government, sanctioned by the acquiescence of the people. The point once conceded that Denmark alone has the right to pronounce upon the condition of this man, that she has pronounced him a slave, and the property of a Danish subject, I see no difference between the President’s authority to restore a ship or any other property belonging to a subject of a foreign power, which has been improperly taken from his possession by our citizens, or by a force furnished from the United States. This question, as regards ships, was very solemnly and on great deliberation settled by President Washington, assisted by the officers of the government who formed his first council in 1793, and the existence of the power was unanimously affirmed. The same power has been since repeatedly exercised on various occasions, and in different forms. Even where proceedings have been instituted against the subject in a court of admiralty, and the President has been required by the government to which or to whose people the property belongs to cause it to be restored, the President has, by a mere suggestion, filed in court by the attorney of the United States acting avowedly under his authority, arrested the proceedings of the court, and thus effected a restoration of the property, of which the following instances occur: The cases of the Cassius, in 1796; the Young Eugenie, in 1821. In all these cases the restoration was the mere effect of the interference of the President, and I can perceive no sound distinction in principle between these cases and the case under consideration.

“After so long an acquiescence in the exercise of this power on the part of the President it would seem unnecessary to investigate the source from whence he derived it. But I understand the process of reasoning which has led to the exercise of this power to be this: The President is the executive officer of the laws of the country; these laws are not merely the Constitution, statutes, and treaties of the United States, but those general laws of nations which govern the intercourse between the United States and foreign nations, which impose on them, in common with other nations, the strict observance of a respect for their national rights and sovereignties, and thus tend to preserve their peace and harmony. The United States in taking the rank of a nation must take with it the obligation to respect the rights of other nations. This obligation becomes one of the laws of the country; to the enforcement of which the President, charged by his office with the execution of all our laws, and charged in a particular manner with the superintendence of our intercourse with foreign nations, is bound to look, and where wrong has been done to a foreign government, (invasive of its sovereignty and menacing to our own peace,) to rectify the injury so far as it can be done by a disavowal and the restoration of things to the status quo.

“In the particular case before us the performance of this duty would find sanction in the spirit and policy of our statutes prohibitory of the introduction of people of color among us, in relation to which so large a power is given to the President by the second section of the act of the 3d of March, 1819, in addition to the acts prohibiting the slave trade.

“II. What form of proceeding should be adopted for this purpose?

“I presume that the President might, by an order directed to the marshal of the State of New York, require him to deliver this slave to the order of the minister of Denmark. But as I understand that the civil authorities of New York have taken possession of this slave for the purpose of guarding the State against the danger of being burdened with the expenses of his maintenance, I submit to you, sir, whether it may not be due to comity to make the case known to the governor of the State, and to request that he will cause the slave to be delivered to the marshal for the purpose aforesaid, giving to the marshal the necessary corresponding instructions.”—Opinions of Attorneys General, vol. 1, p. 567, &c.

In closing this examination of the principles of the Constitution, and of the practice of the government touching the extradition of criminals, (in the absence of treaty stipulations, or of an act of Congress to control,) it would seem to be demonstrated that, however reasonable and expedient, in the particular cases in which the extradition was declined, the action of the Executive may have been, (a topic not pertinent to the present inquiry,) an extradition in these cases could not have been pronounced a violation of the Constitution of the United States. It would have been but an exercise of discretionary authority, under the law of nations, vested by the Constitution in the President. In any one of these cases an extradition might have been open to condemnation, as unsuitable and oppressive, if its circumstances had given it that character, but it could not be condemned as a usurpation of power and a violation of the Constitution. So in the case now under consideration. Though the particular exercise of this authority of extradition may be at variance with principles of justice and humanity, if such a pretence can be made, yet that inculpation of the Executive would not involve a usurpation of power or a violation of the Constitution.

A few words should be devoted to that phrase of the resolution which charges the action of the Executive to have been “in derogation of the right of asylum.” That the practice of civilized nations, and especially of this country, has maintained this privilege of asylum, and that this nation at least would consider its honor engaged to vindicate it, no one will be disposed to deny. This privilege is understood to embrace refugees from personal oppression and from the consequences of political offences. But no civilized nation, and our own as little as any, has included within this privilege criminals guilty of crimes proscribed by nature and humanity. In these cases, to afford protection against pursuing justice is an offence against humanity and against our own society. Mr. Wirt, in a passage already quoted, draws the distinction with force and precision. In speaking of the case of the criminals before him, he says their surrender “would violate no claim which these fugitives have on us. Humanity requires us to afford an asylum to the unfortunate, but not to furnish a place of refuge to the guilty. On the other hand, respect for ourselves and a prudent regard for the purity of our society admonish us to repel rather than invite the admixture of foreign turpitude and contamination.”

Attorney General Gushing has presented the matter with admirable clearness in an opinion under date of October 4, 1853. The head note of his opinion is as follows:

“The mutual extradition of fugitives from justice is an object alike interesting to all governments.

“Emigrants and exiles, for cause of political difference at home, are entitled to asylum in this country, but not malefactors. On the contrary, the foreign government which reclaims its fugitive malefactors is serviceable to us by ridding us of the intrusive presence of crime.

Hence, when reclamation of a fugitive from justice is made, under treaty stipulation, by any foreign government, it is the duty of the United States to aid in relieving the case of any technical difficulties which may he interposed to defeat the ends of public justice, the object to be accomplished being alike interesting to both governments, namely, the punishment of malefactors, who are the common enemies of all society.”

In closing the opinion, Mr. Cushing says:

“The object to be accomplished in all these cases is alike interesting to each government, namely, the punishment of malefactors, the common enemies of every society. While the United States afford an asylum to all whom political differences at home have driven abroad, it repels malefactors, and is grateful to their governments for undertaking their pursuit and relieving us from their intrusive presence.”— Opinions of Attorneys General, vol. 7, p. 536, &c.

It seems to be well settled now, in the jurisprudence of the United States, that the several States have the right to exclude by legislation, and through executive power, criminals, paupers, vagrants, and other injurious elements of society, under the powers reserved to the States under the frame of our government.—(State of New York vs. Miln, 11 Pet. Rep., 102; Holmes vs. Jennison, 14 Pet. Rep., 649; the Passenger cases, 7 How. Rep., 283.)

An instance of the exercise of this light of exclusion of criminals by a State, upon motives of self-protection against the burden and pollution of their presence, occurred in 1855, when Mr. Marcy was Secretary of State, and Mr. Wood was mayor of New York. By the correspondence on file in the Department of State it appears that, upon information communicated to the department by the consul at Hamburg, and imparted to the mayor of New York, that magistrate arrested and sent out of the country the alleged criminals. As illustrative of the general subject, this correspondence is annexed.

It is, then, a misconception to speak of the extradition of a criminal, not within the description of a political refugee, as “in derogation of the right of asylum.”

We are brought, now, by the course of this inquiry to the only remaining question which the nature of the subject, or the method adopted for its treatment, has left for consideration. We have seen the true position of the national obligation and authority for the extradition of criminals, as defined and established by the law of nations. We have seen that this obligation and authority, under the Constitution of the United States, and in the absence of treaty stipulations and statutory enactments, rest with the President. We have only further to consider whether the occasion presented, in the actual case, properly called for the performance, by the President, of this national obligation, and the exercise of this national authority.

It is obvious that, in the very nature of such an application made to our government by a friendly power, there is no opportunity for the suggestion of any motives or interests of a private or personal character, as possibly inviting or shaping the action of the Executive. The question presented to him has no connexion with topics or considerations except of the most public, the most important, and the most elevated character. Nor can there be any hesitation in feeling that, upon such an application, all purely official considerations would prompt the Executive to decline, rather than assume, affirmative and responsible action, when such a disposition of the matter might find a ready justification, and an opposite course might invite criticism or incur censure. In judging, therefore, whether the case presented to the President was suitable for the exercise of his authority, we may feel sure that the plain and substantial features of the case, in its relations to our national character and duty, and to the principles and policy of our government, are all that were before the mind of the President in determining his action, and all that have any place in this discussion.

The request made by the Spanish minister for the extradition of Arguelles to the justice of his government, recognized the relations of the two governments as imposing no express or stipulated obligations upon one or the other for the reciprocal surrender of fugitive criminals, and placed the application upon the grounds of comity, in the interests of justice and humanity. Although we had never had, in the whole course of our amicable and intimate diplomatic and commercial relations with Spain, any treaty clause for the extradition of criminals, it was a most pertinent and important consideration for the President, in meeting this request of the Spanish government, that our government had not hesitated, with some frequency, when its important interests were concerned, to make similar demands upon the comity of the Spanish government in the same interests of justice and humanity. Our commerce with the Spanish West Indies, carried on almost entirely by our own marine, made us frequent applicants to the Spanish government for the extradition of seamen of our vessels charged with mutiny, murder, and piracy. It is believed that to all such applications the promptest and most respectful compliance has been yielded by the Spanish government, and it may well be doubted whether our extensive and valuable West India trade could have reached and maintained its prosperity had the Spanish ports furnished protection and immunity to these maritime offences. The consular correspondence on the files of the Department of State exhibits many cases of these extraditions, all resting upon the same grounds of international relations between the governments, upon which the case of Arguelles was put by the Spanish minister and treated by the President. A brief notice of a few cases will illustrate our obligations to Spain in this behalf, and the sentiments and policy upon which our government, with the universal approval of the people, has proceeded. In 1857 three seamen were arrested, lodged in jail in Havana, and sent to this country in irons, charged with the murder of the master, two mates, and a seaman of the brig Albion, of Portland. In 1860 several prisoners were sent from Havana to this country, charged with a murder on board the Henry Warner, committed in the port of Havana. In 1861 a seaman was sent to this country, as a prisoner, from Havana, charged with mutiny and stabbing the chief mate of the brig Nebraska, the crime having been committed in the port of Havana. And in the same year two seamen were surrendered as prisoners, and sent home from Havana, charged with mutiny and stabbing the mate of the ship Ocean Traveller. In all these cases the authority of the captain general of Cuba was exerted to the end of these extraditions at the request of our consuls, and as early as the year 1835 the footing upon which this action was had was settled in the correspondence of Consul Trist with the captain general of Cuba, according to the statement of the latter, as being “without prejudice to this (the local) jurisdiction, and in the spirit of cultivating harmony with the United States.”

It is apparent, upon these established relations between our government and that of Spain in the extradition of criminals “upon the grounds of comity and in the interests of justice and humanity”—relations the permanence of which was of continual importance to our commerce—that it was impossible for the President to treat the equivalent application of the Spanish government otherwise than as that government had dealt with our requests; that is to say, according to the character and circumstances of the case presented.

But if our attitude and obligation towards the government of Spain on the general subject of the reciprocal extradition of criminals was such as I have stated, our attitude and obligations towards all Christian states on the subject of the African slave trade were special, unequivocal, and emphatic. The crime of Arguelles touched this subject in its most vital point, and the application of the Spanish minister for his surrender for punishment, exhibited an earnest and practical purpose of the Spanish government to concur with the policy of this government and of Great Britain for the absolute extermination of this infamous traffic, by suppressing the slave market in Cuba. This co-operation on the part of Spain had seemed so essential to the success of the combined efforts of the governments of the United States and of Great Britain, that, at the very moment of the occurrences in the island of Cuba which gave rise to the application for the extradition of Arguelles, these two governments were about uniting in a representation to the government of Spain on the urgent occasion for efficient and decisive measures on its part for breaking up the market for slaves in Cuba. The point of this representation was the better securing the freedom of slaves landed on the island of Cuba when these unlawful importations were detected. This step on the part of this government was taken in pursuance of the interest and policy which had induced the stipulation of the ninth article of the treaty of Washington, that the parties to that treaty would unite in all becoming representations and remonstrances with any and all powers within whose dominions markets for African negroes were allowed to exist. The correspondence, heretofore referred to as laid before the Senate, shows the communications on this subject between the governments of Great Britain and the United States, and between them, respectively, and the government of Spain.

It is difficult to conceive a situation in which the request for the surrender of a criminal could have been enforced by more clear or more weighty considerations of our own national policy and engagements, to apply all just means of influence or of action in aid of the objects sought, and to be promoted by the application, than this case of Arguelles presents.

The preceding suggestions, however weighty, are quite independent of and introductory to what usually must constitute the sole elements of consideration upon which the Executive is to determine, whether or not a proposed case of extradition should or should not call forth the exercise of this power and duty under the law of nations, and the precepts of humane and Christian civilization. These elements are the traits of the alleged criminality, as involving heinous guilt against the laws of universal morality and the safety of human society, and the gravity of the consequences which will attend the exercise of the power in question, or its refusal.

The crime imputed to Arguelles, whether it be regarded as an offence against the justice of his own country, or against society and humanity, is of too dark a character to be deepened by epithets or invective. Holding high official position under the crown of Spain, and appointed in that office to the discharge of a particular and important trust in the interest of humanity for the rescue from perpetual slavery of the wretched victims of the nefarious traffic which our laws denounce as piracy, a crime against the human race, he is charged with having himself sold into personal bondage one hundred and forty-one of these poor creatures, making to himself the great gain of their merchandise, and covering this violence from detection by manifold artifices of fraud, while at the same time he receives from a grateful government a large reward for his supposed fidelity and efficiency in carrying out its beneficent purposes in the trust confided to him. It is perceived at once that every circumstance which, in the view of the publicists, may be rightfully required by a sovereign power as a condition for the exercise of the authority of extradition, is here present in an extreme measure.

But the case presented to the Executive upon the request of the minister of Spain did not limit its appeal to considerations touching the punishment of heinous crime and the general interests of social and human welfare which make this the policy of all civilized nations. The representations of the Spanish authorities made it evident that the presentation of the person of Arguelles for trial under the offended laws of his own country was a necessary step towards the relief from their misery of the numerous victims of his crime. The subjection of Arguelles to trial was the key which was to unlock their dungeons, and thus a responsibility of inestimable force and vividness was impressed upon the President’s decision. Negative action, as towards Arguelles and his punishment became affirmative action for the continuance of his inhuman oppressions, and of the woes his crime had inflicted upon this crowd of innocent sufferers. That the chief magistrate of a great nation, in whom the law of nations and the Constitution of his country had reposed the power to meet this exigency, should hesitate to exercise it, upon cold and timid calculations of official ease, would be to make himself the careless spectator of the unaided misery, if not the moral accomplice of the unpunished crime.

Upon these considerations, then, it would seem that the action of the President of the United States, in directing the extradition of Arguelles upon the application of the government of Spain, was in pursuance of a national authority, sanctioned by the law of nations; was in exercise of an executive function belonging to his office under the Constitution; was not in derogation of any right of asylum; was a just recognition of our relations with a friendly power; was conformed to the cherished policy of this country for the extinction of the traffic in slaves, and was an obligation to justice and humanity which could not have been withheld.

I have the honor to be, sir, with great respect, your obedient servant,

WILLIAM H. SEWARD.

Hon. James F. Wilson, Chairman of the Committee on the Judiciary, Ho. of Reps.

[Untitled]

No. 19.]

Consulate of the United States of America, Hamburg, August 17, 1855.

Sir: I deem it my duty to inform you that I have just reasons to believe the Hamburg ship Deutschland, Popp, master, left here the 2d instant for New York, has on board four criminals, sent by the authorities of Güstrow, duchy of Mecklenburg-Schwerin, from the penal establishment of said Güstrow, to be landed at New York.

I have notified the collector and mayor of New York of all the facts I know in the premises, and am, sir, very respectfully, your obedient servant,

SAMUEL BROMBERG.

Hon. William L. Marcy, Secretary of State, Washington, D. C.

[Untitled]

Department of State, Washington, September 19, 1855.

Sir:Your despatch, No. 19, has been received, and an extract therefrom relating to the deportation of certain criminals to New York by the authorities of Güstrow has been sent to the mayor of the former place.

I am, sir, &c.,

WILLIAM HUNTER, Assistant Secretary.

Samuel Bromberg, Esq., United States Vice-Consul, Hamburg.

[Untitled]

Department of State, Washington, October 20, 1855.

Sir:Referring to your No. 19, relating to the shipment to New York of four criminals by the authorities of Güstrow, I have now to inform you that the mayor of New York, to whom an extract from your despatch was sent, has informed this department “that, upon an examination of the individuals referred to on board the Deutschland, he became satisfied that the representations as to them were true in all respects, and that they had been sent back to Hamburg on the 14th in the same vessel in which they arrived here.

I am, sir, &c.,

W. L. MARCY.

Samuel Bromberg, Esq., United States Vice-Consul, Hamburg.

[Untitled]

Mayor’s Office, New York, October 15, 1855.

Dear Sir: I had the honor to receive from you, on the 1st of September, a communication enclosing an extract from a despatch received at the Department of State from Samuel Bromberg, the United States consul at Hamburg, to the effect that four criminals had been sent to New York by the authorities of Güstrow, duchy of Mechlenburg-Schwerin.

A communication of a like character was received at this office about the same time from the same quarter.

The ship Deutschland, on board of which these persons were forwarded, arrived here on the 17th ultimo, and upon an examination on board I was satisfied that the representations as to them were true in all respects.

By my order they were detained on shore until the readiness of the Deutschland to sail on her return voyage, which was on the 14th instant, by which they were sent back to Hamburg, with a promise on the part of the agent of the vessel here that they should be at once forwarded to Güstrow on their arrival at that port.

I enclose copies of the correspondence with the agents of the ship Deutschland at New York.

I have the honor to be, very respectfully,

FERNANDO WOOD, Mayor.

Hon. W. L. Marcy, Secretary of State, Washington City.

[Untitled]

Mayor’s Office, New York, September 22, 1855.

Dear Sirs:For several weeks I have been in possession of information from an official and reliable source that the Hamburg ship Deutschland, which vessel sailed from Hamburg to this port on the 2d of August, and arrived here 17th instant, consigned to your address, had on board four criminals as passengers, who were sent here by the order and at the expense of the authorities of Güstrow, Duchy of Mechlenburg Schwerin, direct from the penal establishment at that place. On the arrival of the vessel, as you know, I caused the detention at the quarantine, so as to institute there a rigid inquiry into the character of her passengers, and particularly with reference to the four persons referred to. This examination has confirmed the truth of the representations made to me in part by the admissions of the criminals themselves.

They have been removed from the vessel and are now detained by my orders, awaiting the return of the Deutschland to Hamburg, by which opportunity I intend they shall be sent back to those who so inhumanely have sought to abuse the hospitality of this country. The immediate object of this communication is to ask on what day the vessel will probably sail, not doubting, from the respectable character of your firm, that you will readily co-operate with me in stopping the ingress into this port of persons of this class.

It is my determination to return all such, forthwith, in every case known to me, by the same vessel, and at the expense of those who bring or those who send them. That which was intended as a pecuniary or moral advantage will thus cease to be so, for, besides the exposure to be followed by the universal condemnation of every honorable or intelligent people, it will also receive the additional mortification of being an unprofitable operation within itself.

Very respectfully.

FERNANDO WOOD.

Messrs. Beck & Kunhardt, 62 Beaver Street, New York.

[Untitled]

New York, September 23, 1855.

Sir: We beg to acknowledge receipt of your communication of yesterday in which you informed us that the rigid inquiry instituted by you on board of the ship Deutschland, Captain Popp, from Hamburg, has confirmed the information previously received by you regarding the character of four passengers by said vessel, and that the same were sent directly from the penal establishment of Güstrow, duchy of Mechlenburg Schwerin, by order and at the expense of the authorities of that place.

We beg to repeat herewith what we already expressed to you verbally, that the owners of the Deutschland are entirely unaware of the unfavorable character of the four passengers referred to, and that nothing would be further from their thought than to have their vessel and their confidence abused by the smuggling on board of any passengers who are sent from penal establishments. We feel certain that the present case will cause the greatest indignation to the owners of the Deutschland—the more so, as the line to which the vessel belongs was established less with a view to pecuniary profit, than in order to promote the welfare and comfort of the German emigrants. The Deutschland will sail from here to Hamburg about the 10th of next month, and we shall reserve room for the four persons, so as to return them to where they came from. We shall give you timely notice when the vessel is ready.

Very respectfully, your most obedient servants,

EDWARD BECK & KUNHARDT.

His Honor Fernando Wood, Mayor of the City of New York.

Mr Savage to Mr. F. W. Seward.

United States Consulate General, Havana, March 5, 1864.

Sir: In reply to your despatch of the 5th ultimo, accompanying a copy of a note from Lord Lyons of the preceding date, I have to state that, notwithstanding the most diligent inquiries among my friends, I have been unable to ascertain the name of the steamer that brought the large lot of African negroes (upwards of a thousand) captured by the Spanish authorities. These negroes were landed in the district of Colon, on the south side of this island. The steamer had been originally English; came from England to Cadiz, where she was put under Spanish colors, fitted out for the slave trade, and cleared ostensibly for a lawful voyage to Fernando Po, a Spanish island on the coast of Africa.

The negroes were captured on shore by the lieutenant governor of the district, and I am confidentially informed that the steamer proceeded again to Africa for another load of the same kind, the necessary stores having been placed on board immediately on the discharge of her cargo. It is said that Don Julian Zulueta, Don Salvador Sania, Marquis of Marianao, the Brigadier Garcia Munoz, and other prominent persons, among whom General Concha is mentioned, were interested in that expedition.

Several slave expeditions have been landed for the same parties; but two besides the above have been captured, one of about six hundred negroes and the other of about two hundred, most of the cargo of this latter having been landed, and the vessel conveying them has the appearance of being English-built. Don José Carreras, a partner of Mr. S. Senia, has been for some time past in confinement, charged with being implicated in these violations of law. Should any further trustworthy information reach me I will not fail to transmit it at the eariest opportunity.

I am, sir, with great respect, your obedient servant,

THOMAS SAVAGE, Vice-Consul General.

Hon F. W. Seward, Assistant Secretary of State, Washington, D. C.

Mr. Seward to Lord Lyons.

Department of State, Washington, March 11, 1864.

My Lord:Recurring-to your note of the 4th ultimo respecting the arrival in Havana of a thousand imported negroes, in which the desire of her Majesty’s government for any information on the subject is signified, I have the honor to enclose a copy of a despatch of the 5th instant from the United States consul general at that port which relates to the matter.

I have the honor to be, with high consideration, my lord, your obedient servant,

WILLIAM H. SEWARD.

Right Hon. Lord Lyons, &c., &c., &c.

Mr. Savage to Mr. Seward.

Consulate General of the United States of America, Havana, March 27, 1864.

Sir: I have just returned from an interview had with the captain general by his request, the object of which was to ascertain if the United States authorities can return to this island the person of an officer of the Spanish army named Don José Agustin Arguelles, who is believed to be in New York. This officer was, in November last, the lieutenant governor of the district of Colon, in this island, that effected the capture of the large expedition of African negroes reported by me to the department on the 20th of November last, despatch No. 107. The government was highly pleased with his zeal, and paid him $15,000 for his share of the prize money usually allowed to captors of such expeditions. The officer subsequently obtained a leave of absence of twenty days, upon his represenation that the object of his journey to New York was to purchase the Spanish journal there published, called La Cronica, has not returned, and since his departure it has been discovered that he and other officers of the district of Colon retained and sold into slavery one hundred and forty-one of the negroes captured by them. Some of these negroes were sold at $700, and others at $750 each.

The superior court of the island, having exclusive jurisdiction over such causes, has taken cognizance of this case, and requires the presentation of Don José Agustin Arguelles before it, to insure the prompt liberation of these one hundred and forty-one victims. The captain general gave me to understand that, without Arguelles’s presence, it would be very difficult, and, at all events, it would require a long time to attain that humane object. His excellency pronounced Arguelles to be a scoundrel, worse than a thief or highwayman, inasmuch as he took advantage of his position, as the local authority, to commit that outrage with little risk to himself.

I told the captain general that in the absence of an extradition treaty between the two governments, or of any law, public or municipal, authorizing the rendition, our government could not grant the request, but promised to lay the matter in this confidential way before you, which he desired me to do by the earliest opportunity.

I beg of you to consider the subject, and to advise me at at an early day of your views thereupon.

I have the honor to be, with great respect, your obedient servant,

THOMAS SAVAGE, Vice-Consul General.

Hon. William H. Seward, Secretary of State, Washington.

Mr. Seward to Lord Lyons.

Department of State, Washington, November 28, 1863.

My Lord:It appears, from information this day received from the consul general of the United States at Havana, that over one thousand African negroes were recently brought to that city. It is reported that they were landed from a steamship, whose name and nationality are unknown, in the neighborhood of Cardenas, or Sagua, and that very prominent and wealthy persons are said to be implicated in the business. The steamer was not captured. It is believed that she went to Nassau after landing the negroes. This intelligence has been communicated to the Navy Department.

I have the honor to be, with high consideration, your lordship’s obedient servant,

WILLIAM H. SEWARD.

Right Hon. Lord Lyons, &c., &c., &c.

Mr. Seward to Lord Lyons.

Department of State, Washington, November 28, 1863.

My Dear Lord Lyons: I have taken the President’s instructions upon the suggestion, communicated in your note of October 15, of Earl Russell, concerning a joint or concurrent appeal to be addressed to the government of Spain for an amendment of her law which tolerates the bondage of imported Africans landed in Cuba after they have become in form the property of an owner of an estate in that island. If Earl Russell, with his large experience of this evil and of the difficulty of obtaining a correction of it, will prepare the draught of such a communication as he shall think may properly be addressed to the Spanish cabinet, the President will, with great pleasure, authorize me to communicate with the Spanish government in the same sense and spirit with those which shall be adopted by her Britannic Majesty’s government. I shall be thankful if you will inform Earl Russell that the President appreciates very highly the liberal and humane sentiments which have inspired the suggestion to which I have thus replied.

I am. my dear Lord Lyons, very truly yours,

WILLIAM H. SEWARD.

Right Hon. Lord Lyons, &c., &c., &c.

Lord Lyons to Mr. Seward.

Washington, February 4, 1864.

My Dear Sir: I did not fail to forward to Lord Russell a copy of the letter of the 28th November last, in which you did me the honor to inform me that if his lordship would prepare the draught of such a communication as might, in his opinion, properly be addressed to the Spanish cabinet, with a view to procure an amendment of the laws affecting the introduction of slaves into Cuba, the President of the United States would authorize you to communicate with the government of Spain in the same sense and spirit with those adopted by her Majesty’s government.

Lord Russell has desired me to thank you for taking the President’s instructions on this matter at a time when other pressing affairs must have occupied the attention of the Chief Magistrate. He has also authorized me to communicate to you the enclosed copies of a despatch from her Majesty’s minister at Madrid, and of a note in which, in execution of instructions from her Majesty’s government, that minister has pointed out to the government of Spain the measures which, in the opinion of her Majesty’s government, are required for the suppression of the Cuban slave trade.

Her Majesty’s government do not doubt that a similar representation addressed to the government of Spain by the United States minister at Madrid would have great weight with the Spanish cabinet, and they would learn with much satisfaction that the United States representative had been directed to make a communication to the Spanish minister for foreign affairs in the same sense as that made by her Majesty’s minister in the note of which a copy accompanies this letter.

Believe me to be, my dear sir, your very faithful, humble servant,

LYONS.

Hon. William H. Seward, &c., &c., &c.

[Enclosures.]

The present captain general of Cuba has acted in good faith in carrying out the treaty obligations of Spain for the suppression of the slave trade, and the Spanish government appears to have hitherto approved the proceedings of that officer. The result has been that the number of slaves introduced into Cuba within the twelve months ended the 30th of last September is estimated at from seven to eight thousand, as compared with eleven thousand two hundred and fifty-four, the number introduced in the corresponding twelve months of the preceding year.

This diminution in the Cuban slave traffic would be satisfactory if it were not that it is mainly owing to the exertions of one individual alone, General Dulce, the present captain general of Cuba, who, it must be borne in mind, is liable to be removed at any moment, when, in all probability, the traffic would again resume its wonted vigor.

General Dulce complains bitterly of the want of sufficient power conferred upon him, and of the inadequacy of the provisions of the Spanish penal code for suppressing the Cuban slave trade; and if an officer so well disposed as is the present captain general of Cuba finds it impossible to put a stop to the importation of slaves into Cuba, it may be easily inferred that a less honorable officer would find ample excuses for the non-performance of his duties in this respect.

In order to put an end to the slave trade in Cuba, it is necessary that the Spanish government should take steps for amending the laws prohibiting the introduction of slaves into that island. The existing laws are admitted by the Spanish authorities to be insufficient for the purposes for which they were framed, and until they are amended the sincerity and good faith of the Spanish government will be liable to be called in question.

The 4th and 13th articles of the penal code only serve as a protection to the slave dealers. The former of these articles prohibits the seizure by the authorities of any newly imported slaves, no matter how notorious may have been the violation of the Spanish laws in introducing the negroes, if once the slaves have been conveyed to a property or plantation in the island.

The 13th article, on the other hand, provides that the legal punishment of slave dealers and their accomplices can only be inflicted in virtue of a sentence of the “Royal Audiencia Pretorial;” but in consequence of nearly the whole of the population of Cuba, as well as the subordinate authorities, being more or less mixed up and interested in the slave trade, it is impossible to procure evidence to convict the parties engaged in the traffic, and this article remains, therefore, entirely inoperative.

Eleven hundred slaves have, as is well known to the government of the United States, been recently seized by the captain general of Cuba after they had been successfully landed and conveyed to a plantation in that island. Attempts will doubtless be made to procure their restitution on the ground that they have been illegally seized by the captain general; but if one of these negroes is given up to the slave dealers, either by the orders of the Spanish government or by the decision of a judicial tribunal, her Majesty’s government trust that the government of the United States will unite with her Majesty’s government in addressing a serious remonstrance on the subject to the Spanish government.

February 4, 1864.

[Untitled]

Madrid, December 16, 1863.

M. le Min’re:In conformity with the wish expressed by your excellency in the conversation which I had the honor of holding with you on the 14th instant upon the subject of the slave trade in the island of Cuba, I proceed to particularize in writing those measures to which I alluded as being, in the opinion of her Majesty’s government, calculated to put a final stop to that deplorable traffic, the adoption of which measures I am instructed to press upon her Catholic Majesty’s government.

As I had the honor of stating to your excellency, the government of the Queen, my mistress, have learned with extreme satisfaction, from the official reports of her Majesty’s consul at Havana, that a considerable diminution in the number of negroes illegally imported into Cuba within the year ending the 5th of September last has taken place, as compared with former years, and also that a well-judged amelioration in the treatment of those legally held in slavery there has been encouraged by the authorities of her Catholic Majesty—a measure, as her Majesty’s consul remarks, which has happily combined a regard for humanity and a sensible increase in the productivenenss of the plantations in which it has been adopted.

Her Majesty’s government have pleasure in recognizing the good will and activity displayed by the present captain general of Cuba, as well as the measure of his success, in checking the slave trade. It appears, however, that such are the temptations to unprincipled individuals to introduce slaves into Cuba, and such the facilities still afforded to them by the defects of certain parts of the Spanish laws regarding the subject, that without some modifications in these, his well-meant efforts must continue to fall short of their intended object.

The measures to which her Majesty’s government would call your excellency’s attention are—

1st. An enactment declaring slave trade to be piracy. This is a measure which has been adopted by many nations, including those possessing large numbers of slaves. Its success has been signal in checking the slave trade in countries where it most prevailed. It has mainly contributed to free Brazil from the stigma attaching to this inhuman traffic, and that without any injury to her productiveness or material prosperity. Her Majesty’s government are not aware of any sound argument which can be alleged against this measure.

2d. A modification of the 9th and 13th articles of the Spanish penal code in force in the island of Cuba.

According to the former of these articles, the authorities cannot seize imported negroes when once they have been conveyed to a property or plantation, however notorious the fact of such violation of the law having been committed may be.

According to the latter, the legal punishment of slave traders and their accomplices can only be inflicted in virtue of a sentence by the Royal Audencia Pretorial. Now, it is well known that the difficulty of producing evidence before this court is so great, that proof to convict those accused of such charges is seldom, if ever obtained, however morally convinced the ruling authorities may be of their guilt. It is true that the captain general has power to remove officers of whose delinquency he feels certain, and it is true that the present Captain General Dulce, his predecessor, the Duke de la Torre, and others, have exercised this power in regard to certain flagrant cases; but how much more effective as regards public opinion, how much more satisfactory to her Catholic Majesty’s government, would it be that such punishment and degradation should result from a legal conviction, rather than from the exercise of discretional power.

I believe that in stating that the experience of the Duke de la Torre, as well as that of General Dulce, have caused them to coincide in the opinion that the adoption of both the measures to which I have above adverted would be expedient and necessary for the final extirpation of the slave trade in Cuba. I am not overstepping the truth in bringing, however, these measures under your excellency’s attention. I feel confident that they will be submitted to the enlightened examination due to the intrinsic merits of the great end they are meant to forward, and also with the most friendly disposition on your excellency’s part to set at rest forever a serious and painful matter of discussion between the governments of Great Britain and Spain.

I avail, &c., &c.

J. F. CRAMPTON.

His Excllency the Marquis de Miraflores, &c., &c.

[Untitled]

Madrid, December 16, 1863.

My Lord:In conformity with the instructions contained in your lordship’s despatch of the 12th ultimo, I did not fail to express to the Marquis de Miraflores the gratification of her Majesty’s government at the diminution of the slave trade, and the amelioration in the treatment of slaves in Cuba, reported by her Majesty’s acting consul general in his despatch to your lordship of September 30.

I said that it was satisfactory to know that these improvements resulted from the determination of the present captain general; and on the Marquis de Miraflores replying that General Dulce, by the manner in which he had acted, had faithfully carried out the wishes of her Catholic Majesty’s government, I observed that, such being the case, I could feel no doubt that his excellency would take into serious consideration two measures, which appeared to her Majesty’s government, and, indeed, to all persons acquainted with the subject, were wanting to enable that officer, who does not lack the will, to put a stop at once to the importation of slaves into Cuba, and to realize a wish which his excellency had so often concurred with me in expressing, that the serious and painful question which was continually recurring between the two governments in regard to this matter should be forever set at rest.

The two measures I alluded to were, I said: 1st. An enactment declaring the slave trade to be piracy. 2d. The modification of the penal code in force in Cuba, and particularly of the 9th and 13th articles.

With respect to the first of these measures, I observed that its efficacy had been shown in the case of Brazil, and no reasonable objection had ever been alleged against it by the Spanish government.

With respect to the second, the 9th and 13th articles of the code acted as a protection to the slave-traders, and defeated the intention of the law and the well-intended efforts of the Spanish superior authorities. The Marquis of Miraflores promised that he would take these matters into his consideration, and assured me that good will on his part would not be found wanting to do all that was possible to put an end to the slave trade.

As I had referred to particular articles of the penal code, he requested me to address him a note, in which they should be particularized, in order that he might be able at once to direct his attention to the points to which her Majesty’s government alluded.

I have consequently, in the note of which I have the honor to enclose a copy, pointed out to the Marquis de Miraflores the effect of the articles 9 and 13 of the code, which are clearly stated in Mr. Crawford’s report No. 12, of September 30, 1361, enclosed in your lordship’s of that year.

I have, &c.,

J. F. CRAMPTON.

The Earl Russell

Lord Lyons to Mr. Seward.

Washington, February 4, 1864.

Sir: I hastened to communicate to her Majesty’s government the note dated the 21st instant (28th November last,) in which you did me the honor to inform me that you had learned from the United States consul general at Havana that more than one thousand recently imported African negroes had been brought to that city.

Her Majesty’s government had already received intelligence of a steam vessel having left the African coast with a cargo of upwards of 1,100 slaves on board, and also of these slaves having been landed in Cuba. They have since been informed by her Majesty’s consul general at Havana that eleven hundred and five of the newly imported slaves have been seized by the captain general of Cuba.

Her Majesty’s government are not at present acquainted with the particulars relative to the vessel from which the slaves were landed, but they will take measures to discover, if possible, the name of the vessel and the parties implicated in her proceedings, and they will be very much obliged if the government of the United States will communicate to them any information on the subject which the United States authorities may be able to furnish.

I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,

LYONS.

Hon. William H. Seward, &c., &c., &c.

Mr. F. W. Seward to Mr. Sevage.

Department of State, Washington, February 5, 1864.

Sir:Your despatches from No. 116 to 118, both inclusive, have been received. Referring to your despatch No. 110, relating to the landing of certain negroes from Africa, I have now to transmit herewith a copy of a note from Lord Lyons, from which you will perceive that the government of Great Britain desires further information in regard to the name of the vessel and the parties implicated in her proceedings. You will have the goodness, therefore, to endeavor to obtain such further information as you can, and communicate it to this department.

I am, sir, your obedient servant,

F. W. SEWARD, Assistant Secretary.

Thomas Savage, Esq., United States Viee-Consul General, Havana.

Mr. Seward to Mr. Koerner.

Department of State, Washington, February 6, 1864.

Sir: By the 9th article of the treaty of Washington, of the 9th of August 1842, between the United States and Great Britain, it is stipulated that the parties will unite in all becoming representations and remonstrances with any and all powers within whose dominions such markets (for African negroes) are allowed to exist, and that they will urge upon all such powers the propriety and duty of closing such markets effectually at once and forever.

Spain is believed to be the only Christian state in whose dominions African negroes are now introduced as slaves. She has a treaty with Great Britain stipulating for the suppression of that traffic. The instrument was concluded at a time and under circumstances which, as it seems to us, imposes a peculiar weight of moral obligation on Spain to see that her stipulations were carried into full effect. It is understood, however, that the just expectations of the British government in that respect have been signally disappointed. This has, no doubt, been mostly owing to the fact that a great part of the public revenue of Spain has hitherto been derived from Cuba, the prosperity of which island has in some quarters been erroneously supposed to depend upon a continued supply of imported slave labor. This is believed to be the source of the disregard of Cuban slave dealers of the humane policy of the home government, and the alleged inefficiency at times of the colonial authorities.

We have no treaty with Spain on the subject of the slave trade; but as the laws of the United States characterized it as piracy long before our treaty with Great Britain above referred to, we think ourselves entitled to consider that trade an offence against public law, so far as to warrant our faithful compliance with the stipulation contained in that treaty. Herewith I transmit a copy of an informal note on this subject, of the 4th instant, addressed to me by Lord Lyons, and of the papers to which it refers. From these it appears, that though the number of Africans introduced into Cuba is diminishing, yet that the municipal laws in force there require amendment before a stoppage of the traffic can be expected. The peculiar relations of Great Britain to Spain, with reference to this topic, may justify to the full extent the text of the note of Sir John Crampton to the Marquis of Miraflores. The relations of the United States to Spain, however, are of a different character; but the President authorizes and directs you to address a communication in general terms to the Spanish minister for foreign affairs, setting forth the treaty stipulations between the United States and Great Britain on this subject, and stating that it would afford the utmost satisfaction in this country if any obstacles existing in Cuba to the complete suppression of the African slave trade should be removed.

I am, sir, your obedient servant,

WILLIAM H. SEWARD.

Gustavus Korener, Esq., &c., &c., &c., Madrid.

Mr. Seward to Lord Lyons.

Department of State, Washington, February 6, 1864.

My Dear Lord Lyons:I have the honor to acknowledge the receipt of your note of the 4th instant, communicating the copy of a despatch from her Majesty’s. minister at Madrid, and of a note framed under the instructions of her Majesty’s government, pointing out to the government of Spain the measures which, in the opinion of her Majesty’s government, are required for the suppression of the Cuban slave trade.

In reply, I have the honor to acquaint you that, in conformity with the suggestion contained in your note, the minister of the United States at Madrid has been instructed to address to the Spanish minister for foreign affairs a representation, in the same sense as that made by her Majesty’s minister in the note above referred to.

I am, my dear Lord Lyons, very truly yours,

WILLIAM H. SEWARD.

Right Hon. Lord Lyons, &c., &c., &c.

P. S.—I enclose a copy of my instruction to Mr. Koerner.

[Extract]

Mr. Koerner to Mr. Seward.

Legation of the United States, Madrid, February 28, 1864.

* * * * * * * *

Some time previous to the receipt of your last, Sir John Crampton had called upon me, and had explained the grounds and the object of the remonstrances which his government had felt itself compelled to make to the Spanish government respecting certain failures in the proper execution of treaty stipulations existing between Great Britain and Spain as to the suppression of the slave trade. He also informed me of the President’s promises to support the British reclamation, according to the Washington treaty. Subsequent to the receipt of your despatch upon that subject, I had another interview with Sir John, in which he informed me of the conversation and the correspondence which he had already had with the minister of state on the question, and of his prospects of success.

In pursuance of your despatch, I have addressed a note to Señor Arrazola, the minister of state, a copy of which I have the honor to enclose. I have also furnished a copy to Sir John. * * *

I have the honor to be your most obedient servant,

GUSTAVUS KOERNER.

Hon. William H. Seward, Secretary of State, Washington.

[Untitled]

Legation of the United States, Madrid, February 27, 1864.

Sir:The subject of suppressing the inhuman African slave trade has been one of deep anxiety to the government of the United States from the time of its foundation. The United States have been among the first of nations, if not the first, that have denounced this traffic in human beings as piracy, and have visited their own citizens implicated in it with the severest penalties. At very heavy pecuniary sacrifices, and at the risk of the lives of their own naval officers and seamen, they have for more than twenty years supported a squadron on the western coast of Africa, in a most destructive climate, in order to prevent the successful carrying on of this nefarious trade. They have, with a like view, entered into stipulations with her Britannic Majesty in the year 1842, contained in what is called the treaty of Washington, the 9th article of which is as follows:

(Here follows the article entire.)

The attention of the President of the United States has lately been directed to certain difficulties which have presented themselves, and which appear to prevent a complete suppression of the slave trade in the colonial possessions of her Catholic Majesty, and more especially in the island of Cuba, which difficulties do not arise from any desire of the Spanish colonial authorities to favor the said trade. It is well known that the efforts made by the captain general of that Island correspond entire to the wise and humane policy which the home government of her Catholic Majesty has adopted in regard to the subject in question, and which is thoroughly appreciated by the President and the people of the United States.

The difficulties spoken of seem to be inherent in the laws and regulations in existence, which are supposed to give room to interpretations by which their force may be evaded.

In view of the general policy of the United States, which looks upon the African slave trade as an offence againt the public law of nations, and has denounced it as piracy; in view, also, of the treaty stipulations existing between them and the government of her Britannic Majesty, the President of the United States has instructed me to respectfully call the attention of her Catholic Majesty’s government to this subject, and to suggest such a revision of the existing laws and regulations concerning the unlawful introduction of slaves into the island of Cuba as will best accomplish the object which her Majesty’s government had in view when those laws and regulations were enacted.

It is hardly necessary for the undersigned to assure your excellency that these suggestions arise from the purest motives, and would not have been made unless the President had considered the very friendly and cordial relations existing between the United States and Spain as justifying this application, and had he not been bound to another friendly nation by engagements which it is his duty as well as his pleasure to carry out faithfully.

It is almost equally unnecessary for me to inform your excellency that it would afford the utmost satisfaction to the President and the people of the United States if any obstacles existing in the island of Cuba to the complete suppression of the African slave trade should be removed by the considerate action of the government of her Catholic Majesty.

The undersigned takes great pleasure to assure, &c., &c., &c.,

GUSTAVUS KOERNER.

His Excellency Señor Don L. Arrazola, Minister of State of her Catholic Majesty.