Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part IV
The extradition of Colonel Arguelles.
OFFICIAL PAPERS.
The President of the United States on the 1st instant communicated to the Senate, in answer to a resolution of that body, the following report from the Secretary of State and accompanying documents.
Mr. Seward to the President.
The Secretary of State, to whom was referred the resolution of the Senate of the 28th instant requesting the President to inform that body, “if he shall not deem it incompatible with the public interest, whether he has, and when, authorized a person, alleged to have committed a crime against Spain, or any of its dependencies, to be delivered up to officers of that government; and whether such delivery was had; and, if so, under what authority of law or of treaty it was done,” has the honor to submit to the President a copy of the papers which are on file or on record in this department relative to the subject of the resolution.
By the act of Congress of the 15th of May, 1820, the African slave trade is declared to be piracy. By the ninth article of the treaty of 1842 with Great Britain, it is stipulated that, “Whereas, notwithstanding all efforts which may be made on the coast of Africa for suppressing the slave trade, the facilities for carrying on that traffic, and avoiding the vigilance of cruisers, by the fraudulent use of flags and other means, are so great, and the temptations for pursuing it, while a market can be found for slaves, so strong, as that the desired result may be long delayed unless all markets be shut against the purchase of African negroes, the parties to this treaty agree that they will unite in all becoming representations and remonstrances with any and all powers within whose dominions such markets 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.”
There being no treaty of extradition between the United States and Spain, nor any act of Congress directing how fugitives from justice in Spanish dominions shall be delivered up, the extradition in the case referred to in the resolution of the Senate is understood by this department to have been made in virtue of the law of nations and the Constitution of the United States.
[Page 69]Although there is a conflict of authorities concerning the expediency of exercising comity towards a foreign government by surrendering, at its request, one of its own subjects charged with the commission of crime within its territory, and although it may be conceded that there is no national obligation to make such a surrender upon a demand therefor, unless it is acknowledged by treaty or by statute law, yet a nation is never bound to furnish asylum to dangerous criminals who are offenders against the human race, and it is believed that if, in any case, the comity could with propriety be practiced, the one which is understood to have called forth the resolution furnished a just occasion for its exercise.
Respectfully submitted.
To the President.
Mr. Savage to Mr. Seward.
Sir: Over one thousand African negroes were brought to this city a few days since. It is reported that they were landed from a steamship (whose name and nationality are unknown) in the neighborhood of Cardenas, or Sagua. Very prominent and wealthy persons are said to be implicated in this business. I have the honor to be, with great respect, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington.
The steamer was not captured. It is believed that she went to Nassau after landing the negroes.
Mr. Tassara to Mr. Seward.
The undersigned, envoy extraordinary and minister plenipotentiary of her Catholic Majesty, has received information of the arrival in this country of an officer of the Spanish army, named Don José Agustin Arguelles, escaped from the island of Cuba under the charge of having sold negroes into slavery.
The circumstances of the case seem to be as follows:
The above named officer was, in November last, lieutenant governor of the district of Colon, and effected, whilst in this capacity, the seizure of a large expedition of African negroes. The government, pleased with his zeal, paid him a large sum as his share of the prize money usually allowed to the captors of such expeditions. The officer subsequently obtained a leave of absence of twenty days to proceed to New York, upon representing that the object of his journey was to purchase a Spanish journal published in that city, but 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 [Page 70] captured by them. The superior court of the island, having exclusive jurisdiction over such causes, has taken cognizance of this case, and requires the presence of Arguelles before it to insure the prompt liberation of the one hundred and forty-one victims. Without such presentation it would be very difficult, and, at all events, it would require a long time to attain that humane object.
The undersigned is well aware that no extradition treaty exists between the United States and Spain, in virtue of which the surrender of Arguelles to the authorities of Cuba might be obtained. Yet, considering the gross and scandalous outrage which has been committed, as well as the interests of humanity at stake in the prompt resolution of this matter, he has not hesitated in submitting the case in this confidential way to the consideration of the United States government, in order to ascertain whether an incident so exceptional could not be met with exceptional measures.
The undersigned has been the more induced to take this step, that he has good reason to believe a similar application to have been made also in a confidential form by the captain general of Cuba.
The undersigned avails himself of this occasion to renew to the honorable Secretary of State the assurances of his highest consideration.
Hon. William H. Seward, &c., &c., &c.
Mr. F. W. Seward to Mr. Savage.
Sir:Your despatch No. 136 has been received, in which you call attention to the case of Don José Agustin Arguelles. I am instructed to inform you that if the captain general will send to New York a suitable officer, steps will, if possible, be taken to place in his charge the above named individual for the purpose indicated in your despatch. You will immediately communicate the purport of this instruction, in confidence, to the captain general.
I am, sir, your obedient servant,
Thomas Savage, Esq., Vice-Consul General of the United States, Havana.
Mr. Seward to Mr. Tassara.
Sir: In acknowledging the receipt of your confidential communication of the 5th instant, I have the honor to inform you that the consul general of the United States at Havana has been instructed to state to his excellency the captain general of Cuba, that if a suitable officer be sent to New York, such steps as may be proper will be taken to place in his charge, for the purpose indicated in your note, the Spanish officer Don José Agustin Arguelles.
Be pleased to accept the renewed assurance of my very high consideration.
Señor Don Gabriel Garcia y Tassara, &c., &c., &c., Washington.
Mr. Savage to Mr. Seward.
Sir: I have the honor to acknowledge the reception of despatches from the department, Nos.70 to 77, both inclusive. I also received yesterday the despatch, No. 79, signed by F. W. Seward, Assistant Secretary, and immediately communicated the purport thereof, in confidence, to the captain general. He had likewise a despatch from the Spanish minister at Washington, advising him of the interview he had had with you on the subject of the rendition of the Spanish officer, Don José Arguelles. His excellency was very much pleased, and very warmly expressed his thanks to me for the promptness with which I had attended to his request in this matter. He read me the Spanish minister’s letter, and said that he would send a proper officer to perform the service, who will probably proceed to New York by the steamer Columbia on Monday next, and, on arrival, immediately repair to Washington and place himself under the direction of the Spanish minister.
In this connexion, I deem it proper to make known to you that the captain general is under the impression that Arguelles will be surrendered as accused of crime, to be subjected to trial here, in which case, from what I can learn, he will certainly be convicted and sentenced to the chain-gang, which will be the fate of the curate of Colon, and three or four others who were accomplices, aiders, and abettors of Arguelles in the nefarious business. I did not say anything to his excellency to the contrary, not feeling authorized to do so.
The one hundred and forty-one negroes sold into slavery by Arguelles, as alleged, were represented by him and his accomplices as having died of disease after landing, and the curate of Colon is charged with having made a new register of deaths, wherein those supposed deaths were inserted. This new register supplanted the regular one which the captain general says Arguelles took away and now has in his possession. Conclusive evidence of this fact is before the court.
I have the honor to remain, with great respect, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington.
Supreme civil government of the ever-faithful island of Cuba, political department.
Your Excellency:In reply to your communication dated loth instant, (No 19,) I have to say to you that it is convenient that the individual mentioned in your aforesaid communication, to which I have the honor to reply, foe placed on board the vessel coming immediately to this place, and the persons who are pointed out in the margin of this letter will take charge of him. D. Aristides de Santales, command’te grad’do Cap.de Infa. de este Ej’to. DULCE
I ask you to make known to his excellency Secretary Seward how much I thank him for his co-operation in this affair, because by it he assists the exposure [Page 72] and punishment of a crime totally distinct from any political matter, the result of which will he that more than two hundred human beings who are groaning in slavery will owe to his excellency the recovery of their freedom.
God save your excellency many years.
His Excellency the Minister of Spain at Washington.
Supreme civil government of the ever-faithful island of Cuba.
Office of Secretary—Political.
Most Excellent Sir:My aide-de-camp, with the person expected, arrived in the steamer Eagle. I request your excellency to render thanks in my name to Mr. Seward for the service which he has rendered to humanity by furnishing the medium through which a great number of human beings will obtain their freedom, whom the desertion of the person referred to would have reduced to slavery. His presence alone in this island a very few hours has given liberty to eighty-six.
I also render thanks to your excellency for the efficiency of your action.
God preserve your excellency many years.
His Excellency the Minister of Spain at Washington.
Mr. Savage to Mr. Seward.
Sir: In consequence of my temporary illness previous to the sailing of the steamship Eagle from this port for New York, I was unable to inform you of the arrival in Havana, per same steamer from New York, of the late lieutenant governor of Colon, José Agustin Arguelles. He arrived here at about 8 o’clock at night, accompanied by the captain general’s agent and two United States deputy marshals. He was immediately lodged in jail, and was next morning conveyed to Moro Castle, where he still remains. Various rumors were put in circulation on his arrival, which created considerable excitement. One rumor obtained great circulation, that he had been kidnapped from New York, and that the captain general intended to condemn him to the chain-gang.
* * * * * * *
Hon. William H. Seward, Secretary of State, Washington.
The Arguelles case.
Early in the morning of the 11th ultimo Don José Agustin Arguelles, an officer of the Spanish army, sojourning in the city of New York, was seized by [Page 73] authority of the President of the United States and secretly conveyed to a steamer in that port bound for Havana, in the island of Cuba. So secretly and summarily was the arrest effected, as he was in the act of making his morning toilette in a room adjoining the chamber of his wife, that his wife remained in ignorance of his condition or his destination until, some days afterwards, she learned both from the Spanish minister in this city.
From the official correspondence, which we published on Tuesday last, it will be seen that Colonel Arguelles was formerly the lieutenant governor of the district of Colon, in the island of Cuba, and that he effected the capture of a large cargo of African negroes illegally landed within that district on the 20th of November last. The captain general, it is said, was highly pleased with his zeal, and paid him fifteen thousand dollars for his share of the prize money usually allowed to captors of such expeditions. Arguelles subsequently obtained a leave of absence of twenty days, upon his representation that the object of his journey to New York was to purchase the Spanish journal published in that city called “La Cronica.”
It is represented by the captain general that after the departure of Arguelles from Cuba it was discovered that he and other officers of the district of Colon had retained and sold into slavery one hundred and forty-one negroes captured by them. Some of these negroes, it is said, were sold at seven hundred dollars, and others at seven hundred and fifty dollars each. It is further represented that the superior court of the island, having exclusive jurisdiction over such causes, had taken cognizance of this case, and required the presentation of Don José Agustin Arguelles before it to insure the prompt liberation of those one hundred and forty-one victims. Without Arguelles’s presence it would be very difficult, or at all events it would require a long time, to attain that humane object.
Mr Thomas Savage, our vice-consul general at Havana, when approached on the subject of the reclamation of Colonel Arguelles, stated to the captain general of Cuba 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 a confidential way, before the Department of State.
In like manner, Señor Don Gabriel G. Tassara, the Spanish minister at Washington, in communicating the facts of the case to our government, (employing almost the ipsissima verba of Mr. Savage, and thus showing that both Mr. Tassara and Mr. Savage wrote from representations prepared for them by the Cuban authorities,) took care to state that he was “well aware that no extradition treaty exists between the United States and Spain, in virtue of which the surrender of Arguelles to the authorities of Cuba might be obtained; yet, considering the gross and scandalous outrage which has been committed, as well as the interests of humanity at stake in the prompt resolution of this matter,” it was added, “he has not hesitated in submitting the case in this confidential way to the consideration of the United States government, in order to ascertain whether an incident so exceptional could not be met with exceptional measures.”
Thus addressed on the subject, the President ordered the “exceptional measure” of arresting and surrendering Colonel Arguelles on his sole responsibility, in the absence, as Mr. Savage phrases it, “of any extradition treaty, or of any law, public or municipal, authorizing the rendition” of the alleged fugitive from justice. And the Secretary of State, in reporting the transaction to Congress, is frank to avow that the “exceptional measure” was taken in obedience only to general considerations of international comity. To this effect he writes:
“There being no treaty of extradition between the United States and Spain, nor any act of Congress directing how fugitives from justice in Spanish dominions shall be delivered up, the extradition in the Arguelles case is understood by the State Department to have been made in virtue of the law of nations and the Constitution of the United States. Although [Page 74] there is a conflict of authorities concerning the expediency of exercising comity towards a foreign government by surrendering, at its request, one of its own subjects charged with the commission of crime within its territory, and although it may be conceded that there is no national obligation to make such a surrender upon a demand therefor, unless it is acknowledged by treaty or by statute law, yet a nation is never bound to furnish asylums to dangerous criminals who are offenders against the human race; and it is believed that if, in any case, the comity could with propriety be practiced, the one which is understood to have called forth the resolution of inquiry of the Senate furnished a just occasion for its exercise.”
The apologetic language in which this statement is couched, and the candid manner in which the whole transaction is characterized by our consular representative at Havana, and by the Spanish minister in the very act of asking what he admits to be an “exceptional measure,” might perhaps be justly held to absolve us from the necessity of instituting any inquiry into the legal aspect of a question which is thus admitted on all hands to be outside of the sphere of law. But, as we have always been taught that our government is a government of laws and not of men, it may be proper for us to restate the principle of international and municipal jurisprudence which we understand to govern the practice of civilized states in the mutual extradition of fugitives from justice.
There was a time in the history of nations when, as the laws then stood, alleged criminals might be lawfully surrendered, and when in fact they frequently were surrendered, by executive authoritiy alone. It was in the days when the monarch or ruler gathered into his single person lla the powers of the state, and when “the government” meant nothing more than the authority of the sovereign who swayed the destinies of the people. In his learned work on the Conflict of Laws, Judge Story states that the practice of mutually surrendering up fugitives from justice had long prevailed between neighboring nations under the civil law as a matter of comity and sometimes of treaty stipulation. Under the Roman Empire this right of having a criminal remitted for trial to the proper forum criminis was unquestioned, as it resulted from the very nature of the universal and common dominion of the Roman laws.
And, at a later period, considerations of humanity, such as are now invoked to sanction the secret arrest and informal surrender of Colonel Arguelles, were held among the sovereigns of Europe to be legitimate grounds on which they might mutually ask and allow the remitter of alleged criminals. But in more modern times, since in the progress of civilization there has been a greater articulation in the powers of government, so that “the government” is no longer embodied in the person of the Executive alone, there has been a corresponding change in the principles and usages regulating the surrender of criminals escaping from one country into another. Criminals and still surrendered by the sovereign authority of each country, but as in free and constitutional governments this sovereign authority no longer resides in the person of the Executive alone, the machinery for their legal surrender has come to partake of the complexity resulting from the partition of powers in such governments. In this country, for instance, the Executive is only a part of “the government,” and, as such, has no plenary power by virtue of which to assume a discretionary jurisdiction in regard to any subject-matter as to which such discretion has been expressly precluded by the letter of the law whose minister he is.
We shall proceed to show that the matter and manner of the extradition of alleged fugitives from justice are so regulated by general principles of modern international law, and by express statutes of our national legislature, as to deprive the Executive of all original and independent authority in the premises. Any assumption of such authority is not only without law, but is in direct contravention of both public and municipal law.
The legal traditions of our government on this subject are ancient, uniform, and undisputed. As early as 1792, Mr. Jefferson, while Secretary of State under President Washington, authorized our ministers at the court of Spain, Messrs. Wm. Carmichael and Wm. Short, to negotiate a treaty with that power [Page 75] for the mutual delivery of persons charged with the crime of murder. (See American State Papers, Foreign Relations, p. 257.) It was stipulated in the project of the convention then proposed by Mr. Jefferson that the person authorized by the Spanish government to pursue the alleged murderer in the United States should apply to “any justice of the Supreme Court of the United States, or to the district judge of the place where the fugitive is, and should exhibit proof, on oath, that a murder had been committed by the said fugitive within the territory of the said government.” The judge was thereupon to be empowered to issue a warrant for the arrest of the fugitive, and “a special court of inquiry” was to be held, and a grand jury summoned thereto, charged with the duty of inquiring whether the fugitive had committed the crime of murder; and, on the finding of a true bill, the judge was to order a surrender of the fugitive to the Spanish government. In the memoranda accompaning this project of the convention Mr. Jefferson gives his reason why the government of the United States at that date was unwilling to provide for the delivery of others than persons charged with the crime of murder. And this delivery, it is seen, was to be surrounded with all the guards of a preliminary judicial inquiry. It is needless to add that no such convention as he projected was ever formed between our government and that of Spain on this subject, and we have adverted to it only for the sake of ascertaining at the threshold of this inquiry the principles on which the extradition of alleged criminals was based by our government.
In the 27th article of the treaty negotiated by John Jay with the government of Great Britain in the year 1794, the same principles were solemnly recognized. The article reads as follows:
“It is further agreed that his Majesty and the United States, on mutual requisitions by them respectively, or by their respective ministers, or officers authorized to make the same, will deliver up to justice all persons who, being charged with murder or forgery committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other: Provided, That this shall only be done on such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the offence had there been committed. The The expense of such apprehension and delivery shall be borne and defrayed by those who make the requisition and receive the fugitive.”
Under this article of Jay’s treaty, one Thomas Nash, alias Jonathan Robbins, was delivered to the British authorities by Judge Thomas Bee, district judge of the United States, in the year 1799. The transaction caused much excitement at the time, as Nash represented himself to be a native-born citizen of Connecticut, and the case has been frequently reviewed in Congress and in the public press of the country. The correspondence and proceedings had in the case may be seen in the “American State Papers, Foreign Relations,” vol. 2, pp. 284, 285.
In the year 1797, one William Jones, a Spanish subject residing in the State of Georgia, and owning slaves therein, went into Florida, then belonging to Spain, and, with the aid of some citizens of Georgia, forcibly abducted certain of his slaves who had fled into that province. This invasion and violation of the sovereign territorial rights of Spain naturally irritated the government of that country, which made strong representations on the subject to President Washington; and the question, whether it would be right to deliver up this criminal for punishment, having been referred to the Attorney General of the United States, the Honorable Charles Lee, that officer held that, though the case was an aggravated one, the Executive had no power to surrender Jones in the absence of a law regulating and authorizing such surrender. He held:
“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 [Page 76] 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.”
In the year 1821 Daniel Sullivan, a British subject and master of a British schooner, aided by six accomplices, likewise British subjects, ran away with the vessel into a port of the State of Maine, where she was seized by an officer for having entered in violation of our laws. The British government thereupon demanded that the vessel and cargo should be restored to their lawful owner, and that the British subjects who had committed the offence in question should be delivered up for trial. On this state of facts Mr. Attorney General Wirt, in a most able and elaborate opinion, held that the ship and cargo should be restored, but that, in the absence of treaty stipulations and municipal regulations, there was no power in the President to surrender the alleged conspirators who had run away with the schooner. He wrote, (1 Opinions of Attorneys General, pp. 519-521)—
“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 a right to call fox fugitives from her justice. As instances of this, I refer you to the treaties made by Great Britain with Denmark, in 1660; with Portugal, in 1654; with the same kingdom, in 1810; with Sweden, in 1661, &c.
“In our treaty of 1794 with Great Britain, the 27th article provided for the cases in which the contracting parties agreed to bind themselves to surrender criminals, and the degree of proof which should be sufficient to impose the obligation to surrender. The two cases were murder and forgery, and the proof such as should be sufficient to justify an arrest according to the laws of the country in which the demand was made. This article was, by the terms of the treaty, to continue in force for twelve years only; that is to say, the parties agreed to remain bound to this mutual surrender of criminals in the two specified cases for twelve years and no longer. The twelve years have expired; and with them, in my opinion, has expired the right to make the demand even in the specified cases.” * * * *
“Upon the whole, I am of the opinion that there is nothing in the law of nations, as explained by the usage and practice of the most respectable among them, which imposes on us any obligation to deliver up these persons; more especially on the very imperfect proof of their guilt, or rather the total absence of everything like judicial proof, on which the application is founded. And this conclusion, drawn from an examination of the general law and usage of nations, derives confirmation in the particular case from the expired article of the treaty with Great Britain, to which I have adverted.
“I am further of the opinion, that even if, by the laws and usage 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 powers. Neither of these contains any provision on this 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.”
In the year 1831 Attorney General Taney, the present Chief Justice, was called to express an opinion whether the President of the United States could return to Holland for trial a person alleged to have stolen some diamonds of the Princes of Orange. He gave it as his opinion that, in the absence of a treaty stipulation, the President “would not be justified in directing the surrender of the persons.” (2 Opinions of Attorneys General, p. 452.)
To the same effect Attorney General Taney wrote as follows, it was alleged, under date of April 16, 1833, in respect to an application of the King of Portugal for the delivery of two seamen who had committed the crime of piracy— 2 Opinions of Attorneys General, p. 559:)
[Page 77]“There is no law of Congress which authorizes the President to deliver up any one found in the United States who is charged with having committed a crime against a foreign nation; and we have no treaty stipulations with Portugal for the delivery of offenders. In such a state of things it has always been held that the President possesses no authority to deliver up the offender.”
In the year 1841, while Mr. Seward, the present Secretary of State, was governor of the State of New York, he addressed a communication to Daniel Webster, then Secretary of State under President Tyler, inquiring whether it was lawful for him, as governor of New York, to surrender one Dewit, a fugitive from justice, demanded of him by the governor general of Canada. The question being referred by Mr. Webster to the office of the Attorney General, Mr. Legard held as follows—(3 Opinions of Attorneys General, p. 661:)
“I think, from the whole argument of the bench in the case of Holmes vs. Jennison, 14 Peters, 540, we may consider it as law, first, that no State can, without the consent of Congress, enter into any agreement or compact, express or implied, to deliver up fugitives from justice from a foreign state who may be found within its limits; second, that according to the practice of the executive department, as appears from the official correspondence both of Mr. Jefferson and Mr. Clay, your predecessors in office, 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. In the absence, therefore, of such treaty stipulations, I am of opinion that it is necessary to refer the whole matter to Congress, and submit to its wisdom the propriety of passing an act to authorize such of the States as may choose to make arrangements with the government of Canada, or any other foreign state, for the mutual extradition of fugitives, to enact laws to that effect, or acts approving such laws as may already have been passed in the several States to that effect.
“Whatever I may 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.”
In the year 1853, Mr. Attorney General Caleb Gushing reaffirmed the doctrine of our government on the subject. He wrote under date of August 19, in that year—(6 Opinions of Attorneys General, p. 86:)
“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.”
It will thus be seen that the line of legal tradition on this subject in our country is as unbroken as it is express. And if we turn to the institutes of the law as held in Great Britain, we shall find that the same maxims obtain. We need but refer to a single occasion when they were formally enunciated in the British Parliament with all the authority attaching to the highest law officer of the realm, and the occasion was one which makes these declarations especially interesting to American readers.
The ship Creole was sailing with a cargo of one hundred and thirty-eight slaves from one slaveholding port of the United States to another slaveholding port. In the course of the voyage the slaves rose upon the captain and crew, seized the vessel, and took her into the port of Nassau, in the Bahamas. In the act of her seizure by the slaves a scuffle occurred, in which the master of the slaves was killed. Upon their arrival in the Bahamas one hundred and twenty of the slaves were landed and liberated, and the remaining eighteen, engaged in the capture of the vessel, were taken into custody on the charge partly of murder and partly of piracy.
The question therefore arose, whether these slaves could be lawfully held in custody by the British authorities in the Bahamas for the crime thus alleged against them; and whether, in answer to a demand of the government of the United States, they could be rightfully given up for trial in this country. Upon [Page 78] these questions Lord Brougham held the following language in the House of Lords on the 3d of February, 1842:
“He ventured to state, that, by the law of this country, no person, whether he were a British subject returning from abroad, or an alien coming to our shores, no person charged with having committed an offence out of the jurisdiction of Great Britain could be seized, or detained, or given up to any foreign government whatever, which might demand to have him given up, in respect to the offence with which he was charged. For example, if an Englishman in France were to commit a felony—say even a murder—and return to this country, or if a Frenchman in France were to commit a murder and escape to this country, the French government might in vain demand of the English government to have the alleged murderer given up for the purpose of being tried for his offence in France. There had at different times, no doubt, been treaties between this country and France, and at one time there was a treaty between this country and the United States of America, for the mutual surrender by each government, on the requisition of the other, of persons charged (according to the American treaty of 1795) with the two offences of murder and forgery; and (according to the treaty of 1802 with France) of persons charged with the three offences of murder, forgery, and fraudulent bankruptcy. But before those treaties could be carried into effect in this country it was necessary to pass especial acts of Parliament, to enable the government to perform the obligation which it had incurred by the treaties; and accordingly the 37th George 3d gave the powers required for executing the treaty with America, and the 42d George 3d, commonly called the alien act, not satisfied with the general powers of the alien act, had a clause referring to the French treaty, and arming the government with the power to arrest, detain, and surrender parties. He hoped that their lordships would excuse his entering into these particulars, on account of the great importance of the question. There was no lawyer who could entertain any doubt upon the subject. It was clear that the surrender of any of the slaves, or even of any of the persons charged with the felony, the alleged murder having been committed beyond the territory of Great Britain, would be utterly without warrant, and, by the law of this country, could not possibly be accomplished, even if the government were disposed to do it. A doubt may possibly arise as to whether the act committed on board the Creole might not be piracy. The facts as stated did not appear to constitute piracy. If there were any who considered that a doubtful or debatable point, then he apprehended that the true course of proceeding would be to put the matter into a course of investigation—to have a judicial inquiry, so that all the facts and circumstances might be fully ascertained, and that the legal import of those facts might be determined. But even if the circumstances connected with the seizure of the Creole amounted to piracy, it did not follow that those who had been guilty of it should be given up by the government of England to the government of any other country. If the facts amounted to piracy the parties, though aliens, were triable in our courts. If any doubt lingered in his mind, it was as to the right of delivering up aliens charged with piracy; and if any persons held that such a power of surrender existed, the question might be put in a course of judicial investigation. He would fain hope that this accidental occurrence of the capture and bringing into port of the Creole, when rightly understood in America, would have no effect in delaying the successful accomplishment of that most important mission upon which his noble friend opposite (Lord Ashburton) was about to proceed—greatly to the advantage of the negotiations, greatly to the benefit of the two countries, which had a high and an equal interest in perpetuating the friendly relations so essential to the prosperity of both, and greatly to his own honor, in having undertaken, in the circumstances of the case, this most important service.”
On the 14th of the same month Lord Brougham referred to the subject in the following terms. We quote from Hansard’s Report of the Parliamentary Debates, volume 60 of the third series:
“What right existed, under the municipal law of this country, to seize and deliver up criminals taking refuge there? What right had the government to detain, still less to deliver them up? Whatever right one nation had against another nation—even by treaty, which would give the strongest right—there was, by the municipal law of the nation, no power to execute the obligation of the treaty. If such a treaty existed between any two countries, say between America and this country, and no act of Parliament had passed enabling the government in either country to perform its conditions, that treaty became utterly unavailable, because the law of the land prevented the possibility of its being executed. Suppose it was clear, and no doubt existed that a treaty were in force binding on the two parties, (and such an obligation would be much more clear than any that could be pretended under the general law of nations, the common international law,) and suppose either party had omitted to take power from its own legislature to carry the treaty into execution, the mere existence of the treaty would not enable that power to carry the treaty into effect. The treaty would be a dead letter if the municipal law of that country did not authorize the fulfilment of its provisions. It was necessary to say so much, because he thought some of those who had argued the subject, particularly in America, had not kept the two questions of international [Page 79] law and of municipal law sufficiently apart. It was necessary that a municipal law for detaining and giving up criminals should exist, as well as the law of nations. Such a municipal law did not exist in this country. There was no power by our municipal law to seize, still less to surrender, any person having committed an offence, however grave that offence might be, within the jurisdiction or limits of any other country; whether he were an alien or not, there was no power to give him up until the legislature of this country should arm the government with a power to do so. He had on the first night of the session referred to two cases, the acts of 1797 and 1802, passed for the purpose of arming the government with the power of performing their obligations contracted by Mr. Jay’s treaty and the treaty of Amiens, and without which acts it would have been impossible to have performed those obligations. He had stated that the only doubt in his mind with regard to the case of the Creole arose from the suggestion that a piratical offence had been committed. No doubt the case of piracy was in two particulars different from the general law respecting charges against aliens for crimes committed beyond the jurisdiction of the country; for whereas in any other case they had no power to seize or detain, yet in a case of piracy, although the party was an alien, they had power to seize and detain. That was one particular in which a difference existed; but another particular was the power of trying the alien pirate, and therefore he had no doubt that, even in the case of piracy, we had not, and ought not to have, the power to deliver up, because where the offence was piracy we had not only the power of seizing and detaining the person, but we could send him to his trial; so that here was no deficient jurisdiction, and no fear that the criminal would go unpunished, whilst in the case of a murder alleged to have been committed by an alien in a foreign country there was no power either of arresting or of bringing him to trial. It was impossible to deny, and he did not deny, that this was a state of law which ought not to continue. He thought it highly expedient—he thought the interests of justice required, and the rights of good neighborhood required—that in two countries bordering on one another, as the United States, Canada, and even that in England and in the European countries of France, Holland and Belgium, there ought to be laws on both sides giving power, under due regulations and safeguards, to each government to secure persons who have committed offences in the territory of one and taken refuge in the territory of the other. He could hardly imagine how nations could maintain the relationship which ought to exist between one civilized country and another without some such power; at present, however, such a power did not exist in this country; so that the whole territory of one country became an asylum for fugitives from justice in another. But as to the laws now in force there could be no doubt. Such a proceeding as seizing and detaining, much more of delivering up fugitives, was wholly illegal.”
The Earl of Aberdeen, who was then the British secretary of state for foreign affairs, expressed his concurrence in the views of Lord Brougham as follows:
“As their lordships might well imagine, her Majesty’s government had given the question their most serious and anxious attention; and after taking advantage of all the assistance which they thought desirable on the subject, they had satisfied themselves that by the laws of this country there is no machinery or authority for bringing those persons to trial for mutiny and murder, still less for delivering them up or detaining them in custody. His noble friend, the secretary of state for the colonial department, had therefore sent out instructions for releasing those persons who had hitherto been detained.”
Lord Denman, the lord chief justice of England at the same time, spoke as follows:
“He believed that all Westminster Hall, including the judicial bench, were unanimous in holding the opinion expressed by the noble earl, and that in this country there was no right of delivering up, indeed no means of securing, persons accused of crimes committed in foreign countries. The matter was under discussion frequently when the alien bill had been year after year before the House of Commons, and the lawyers of all parties had come to the same conclusion.
“Nor were these opinions confined to the lawyers of Europe. Great lawyers of America— men distinguished by their profound erudition, whose decisions are so highly respected among us, and whose valuable works on great legal questions are studied and consulted in this country with the highest advantage—held the same doctrine. Indeed, Chancellor Kent, in his Commentaries on American Law, (1836,) appears to incline to the opinion of Grotius and Vattel, against that of other eminent jurists, that persons accused of crimes ought to be delivered up to the country where they are accused, and one case appears to have been decided by himself when he held his office in conformity with that doctrine. But it may be remarked that the peculiar constitution of a federal government, comprehending many States with various laws, renders any decision, however respectable, of less extensive application, at least till all the particular provisions existing when it was made are fully canvassed. But Justice Story, in his more recent edition of The Conflict of Laws, (1841,) concludes a discussion on this subject by citing the passage from Lord Coke, adding, in terms, one chief [Page 80] justice in America has adhered to the same doctrine in a very elaborate judgment; that the reasoning of another chief justice, in a leading case, leads to the same conclusion; and that it stands indirectly confirmed by a majority of the judges of the Supreme Court of the United States in a very recent case of the deepest interest.
“Therefore, although distinguished jurists may feel a desire for some arrangement for the surrender of foreign criminals, it would seem that the municipal law of America rests on the same principles as our own, which, as he had already stated, recognized no right and provided no machinery by which the subjects of another state seeking refuge here could be given up to the country to which they belonged. He had, therefore, come prepared respectfully to warn secretaries of state, if it had not been rendered unnecessary by what had passed, that they could not seize or detain aliens seeking refuge here without subjecting themselves to actions for damages for false imprisonment, and without further incurring the risk of a, still heavier and more awful responsibility; for if a man attempted to seize an alien under such authority he might resist, and if death ensued, he would be justified in inflicting it, while those who ordered his arrest and detention would be liable to be tried for murder. He agreed with his noble and learned friend that the comity of nations might be properly employed in considering of treaties and laws which would allow nations to seize and give up to each other their respective criminals; but this could only be done on the supposition that the laws of all nations should be reasonable and just, for no country could be justified in enforcing those laws which it believed to be founded on injustice, oppression, and cruelty. Some few great criminals had possibly been given up without notice; but he believed that the United States of America had refused to give up an English subject charged with forgery, because they disapproved of the punishment of death for that crime; and until the internal law of all countries was such that each would have no objection to adopt it, he feared that this desirable object could not be accomplished. He indulged a hope that those distinguished persons, the judges and jurists in America, who had been referred to, would in common with those of other countries, apply their minds to these considerations.”
Lord Campbell held the following language on the subject:
“He said that after the statement of their opinions by his two noble and learned friends, he should not have felt it necessary to address their lordships if it had not been asserted, and widely circulated, that he had, when attorney general, advised that men similarly circumstanced should be sent home for trial. Nothing could be more contrary to the fact than such a statement. He had never given any opinion of the kind. On the contrary, he had held that, by the law of nations, no state had a right to demand from another the surrender of any of its subjects; and that in the case of England, the municipal law did not authorize or enable the executive to comply with any such demand. He agreed with the lord chief justice that it might be very convenient to have treaties under which persons accused of murder and other high crimes should be surrendered, but such treaties would not justify the demand being acted on until the municipal law provides the means for carrying the treaties into execution. Without an act of Parliament there was no authority for giving up a refugee to any foreign state.”
The Lord Chancellor spoke as follows at the close of the debate:
“He apprehended that he was the only law lord in the house who had not yet given his opinion. He had been consulted upon the question, as well as the attorney and solicitor general, and without pretending to state the terms in which their opinion had been given, he might say that it fully agreed with what had been advanced by noble and learned lords who had already spoken. He did not think that a second opinion could be entertained.”
It will thus be seen that, according to the universally received maxims of law as held in the United States and Great Britain, the executive authority is not authorized, in the absence of treaty stipulations and of municipal legislation carrying them into effect, to arrest and deliver up fugitives from justice. Hence the origin and purpose of the 10th article in the treaty of Washington, negotiated between the United States and Great Britain, in the year 1842, by Mr. “Webster and Lord Ashburton, providing for the extradition of persons charged with certain specified crimes. The treaty, under this head, ordained that “the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive, that he may be brought before such judges or other magistrates to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive.”
[Page 81]The treaty, it will be seen, contemplated a judicial inquiry preliminary to every act of surrender. And an act of Parliament was passed in the year 1843, (6 and 7 Victoria, chap. 76,) to carry this part of the treaty into effect. How important, we should say how indispensable, such municipal legislation is to effectuate stipulations for the extradition of fugitives from justice, was illustrated by a notable case in our judicial records, a case which led to the enactment of corresponding laws in our own country for the regulation of this whole matter as covered by treaty engagements, and extending the exercise of such authority in all cases not covered by treaty.
An extradition treaty was concluded between the United States and France in the year 1843. Under this treaty, in the year 1847, the French minister to this country demanded the arrest and surrender of one Nicholas Lucien Metzger, and a mandate to that effect was issued from the State Department, signed by President Polk, and countersigned by Mr. Buchanan, as Secretary of State. The fugitive was arrested, and while on his way to a French frigate then lying in the harbor of New York, a writ of habeas corpus was sued out, returnable before Edmonds, circuit judge. The case was twice elaborately argued before the judge by the honorable B. F. Butler, United States district attorney for the government, and with him were associated Mr. F. B. Cutting and Mr. F. Tillou, as counsel for the French minister, and by Mr. Ogden Hoffman and Mr. N. B. Blunt for the prisoner. The prisoner was discharged, and mainly on the ground that, being a resident of this State, he was a “member” of it within the meaning of our Constitution; that, as such, he could not be deprived of his liberty without a resort to courts of justice; that, though the treaty with France contained an extradition clause, yet Congress had never passed a law authorizing the courts to enforce it, and as without such law the courts could have no jurisdiction in the matter, there could be no judicial determination of the question of arrest and surrender; that such determination could not be made by the executive department alone, and that therefore the mandate of the President was void.
The prisoner was accordingly ordered by Judge Edmonds to be discharged. The French minister was much dissatisfied with the result—so much so that our government directed a writ of error to be brought, in order to take the case to the Supreme Court of the United States. At the ensuing session of Congress the subject was laid before the Senate, by whom it was referred to the Judiciary Committee, on which were Daniel Webster, Robert J. Walker, and Wm. L. Dayton, our present minister to France. Their examination convinced them that the decision was right; the writ of error was abandoned, and Congress passed a law supplying the defect complained of, and providing for the action of the judiciary in such cases. That law was as follows:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases in which there now exists, or hereafter may exist, any treaty or convention for extradition between the government of the United States and any foreign government, it shall and may be lawful for any of the justices of the Supreme Court or judges of the several district courts of the United States, and the judges of the several State courts, the commissioners authorized so to do by any of the courts of the United States, are hereby severally vested with power, jurisdiction, and authority, upon complaint, made under oath or affirmation, charging any person found within the limits of any State, district, or territory with having committed within the jurisdiction of any such foreign government any of the crimes enumerated or provided for by any such treaty or convention, to issue his warrant for the apprehension of the person so charged, that he may be brought before such judge or commissioner, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient by him to sustain the charge under the provisions of the proper treaty or convention, it shall be his duty to certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue, upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of said treaty or convention; and it shall be the duty of the said judge or commissioner to issue his warrant [Page 82] for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.” . * * * * * * * *
“And be it further enacted, That this act shall continue in force during the existence of any treaty of extradition with any foreign government, and no longer.”
In the light of this historical review, and especially in the immediate presence of the statute of our Congress, we can clearly read this law and usage of the United States on this subject. To compass the extradition of a fugitive from justice there must be a treaty stipulation, enforced by corresponding municipal legislation; and it is expressly declared by the Congress, in the 5th section of the above-cited act, that such municipal legislation taken shall “continue in force only during the existence of any treaty of extradition with any foreign government.” If, even under a treaty of extradition, a criminal cannot be given up without the co-operation of our statutes, what shall be said of the arrest and surrender of a criminal without the authority either of treaty stipulation or of municipal law?
We have seen that the Cuban authorities and the minister of Spain did not ask the delivery of Arguelles as a matter of right, but only as a matter of grace, in the interest of humanity. It may be interesting to know how far the government of Spain was entitled to expect that our government would act on this principle, even supposing it had the right to do so.
A recent transaction between the two governments, recorded in the diplomatic correspondence of Mr. Seward, as transmitted to Congress at the opening of the present session, affords an illustration of the principles and precedents which have been heretofore understood to govern the right of asylum and the conditions on which the extradition of alleged criminals may be claimed by one government and granted by another. As this case was fresh in the minds of the Spanish authorities when they reclaimed Colonel Arguelles, and in the memory of the administration when it yielded to their request, we may recite the circumstances under which it arose, using for this purpose the words of the government when giving an account of the transaction—(Papers relating to Foreign Affairs, 1863, vol. 2, p. 994:)
“In the month of September, 1862, the city of New Orleans had been reclaimed by the naval and military forces of the United States from insurrectionary occupation, and was then held as a military position, in an actual state of civil war. The blockade regulations of the port were relaxed so far as to admit trade under military regulations. Three Spanish vessels-of-war, in conformity with the liberal practice which the United States had adopted towards all the maritime powers, were admitted into the port of New Orleans without question. The city was then in a condition of great distress, and permission was freely given by the authorities of the United States to any foreign government which should ask it, to receive and remove any of their suffering countrymen who were not compromitted in the insurrection. A number of such persons went on board of the three Spanish vessels with passes from the military authorities, such passes being given to all unoffending persons who applied for them. The commander of the Blasco de Garay, being also in command of the other two vessels, not content with giving passages to persons of the class before mentioned, went further, and knowingly and without consulting with the military commander of the port, received on board and conveyed away eighty native citizens of the United States who had been compromised in the insurrection, and this in violation of known and well-understood military regulations, which forbade any person without a pass to leave the city. On the 25th day of October the major general commanding called the attention of the captain of the Blasco de Garay to this subject, and then asked to be informed of the names of the passengers, not belonging to the government service of Spain, whom he had taken in his ship, on the voyage before mentioned, to Havana, and especially to state whether one Mr. Roberts, of New Orleans, was a passenger. The commander of the Blasco de Garay declined to comply with this request.”
The case as thus represented was at this stage submitted by Mr. Seward to the government of Spain, with an expression of the hope that it would receive “the prompt attention of her Catholic Majesty’s minister at Washington.” Thus addressed on the subject, M. Tassara, the Spanish minister, referred the matter to the government of her Catholic Majesty at Madrid, requesting at the same time reports from the captain general of Cuba and from the Spanish consul at New Orleans. The decision of the Spanish government in the premises [Page 83] was announced by the Marquis de Miraflores, the present minister of state in Spain, as follows:
“The right to give asylum to political refugees is in such manner rooted in the habits, in such sort interwoven with the ideas of tolerance of the present century, and has such frequent generous and beneficent applications in the extraordinary and ensanguined political contests of the times we live in, that there is no nation in the world which dares to deny this right, and, moreover, not any one that can renounce its exercise. What would become of the most eminent men of our days if, in the political tempests in which success may be against them, they could not protect themselves beneath the inviolable mantle of foreign hospitality, offering to them haply a friendly country, where they may breathe tranquil and safe; haply a shelter whose thresholds their pursuers cannot overstep, or haply, in fine, the shadow of a national flag floating in a port? In such cases it can be said that the flag which shields them is not merely the ensign of a foreign nation, but rather the banner of humanity and civilization, under whose ample folds all those can be received who are pursued because they are enemies, rather than because they are criminals. We are empowered, therefore, and we ought to give asylum on board our vessels-of-war in the United States to political refugees. The limitation of asylum lies in the offence. Asylum ought not to serve to give impunity to those guilty of ordinary crimes; that would be to encourage crime, and no civilized nation may do that. But it may be said that it is not easy for the commander of a ship-of-war to know whether the man who presents himself on board, asking for asylum, is or not guilty of ordinary crimes. In such cases the commander should require his word of honor that he has not committed such offences. But should he give that, and afterwards turn out that he has lied, there could be no difficulty in handing over to the authorities a man who to former offences had added that of the abuse of good faith, in being wanting to his parole. And if the government of Washington wishes to acquire a perfect and positive right to the delivery to them of those guilty of ordinary crimes, it will be enabled to do so by means of a treaty of extradition, to the conclusion of which the Spanish government would not oppose itself as it has not refused to conclude such with other states.”
It will thus be seen that the Spanish government sustained the proceedings of the commander of the Blasco de Garay, who declined even to give the names of the passengers whom he had taken in his ship. Our government was simply informed that if it desired to reclaim ordinary criminals it could acquire “a perfect and positive right to do so” by concluding an extradition treaty, and that in the absence of such a treaty it would give no heed to our reclamations.
It remains for us, at the close of these historical citations, to sum up the logical conclusions suggested by the principles and precedents thus passed in review.
From the history we have given it appears that while the obligation of nations not to grant asylum to criminals, but to deliver them up for trial, receives the general assent of civilized nations, it is one subject to too many limitations and modifications. It is a duty of “imperfect obligation,” so called, like those interwoven with the private life of individuals, and the neglect of which destroys the reputation of the man without rendering him amenable for violating the law. It is a duty resting upon the conscience of the nation, to be discharged under such circumstances, in such cases, and in such manner, as in the judgment of the nation, expressed through the constituted authorities, may seem best adapted to subserve the cause of virtue and the interests of humanity.
In some political systems the monarch is the authority who at once determines the question and executes the judgment; but in those countries where the principles of constitutional government obtain—in other words, where the rights of the person are recognized—the maxims of law limit the otherwise absolute power of the executive authority, and in performing their obligations to the human race, the legislature, in such countries, is careful not to overlook their obligations to the individual. Thus in Great Britain, as we have seen, while the sovereign may make treaties, he cannot fulfil a treaty binding him to surrender fugitive criminals without the express sanction of that part of the government which is charged with the guardianship of the life and liberty of the individual. He may make war or conclude peace without the consent of Parliament; but without its consent he cannot deprive the humblest individual of liberty, though that individual be charged with the deepest crimes.
[Page 84]In our own political system we find the same careful process for reaching the ends of justice. The treaty-making power determines what offences the nation will lend its aid to punish, and into what hands it is willing to deliver offenders for punishment. The tenth article of the treaty of Washington, concluded between the United States and Great Britain on this subject, shows, by the catalogue of crimes it embraces, that we are willing to trust the enlightened criminal jurisprudence of England in a wider class of offences than we would remand to some other countries whose creeds are less conformed to the humane spirit of the age. When the treaty-making power has ascertained the extent of the obligation of surrender, and assumed the corresponding duty, the legislative power comes forward to provide for the fulfilment of that duty; and in so doing Congress has thought proper to omit none of those safeguards which have been found essential to protect the accused against baseless charges, and which, necessary as they are in cases where the accused is to be tried in the jurisdiction where he is found, are doubly and trebly necessary where the charges are put forward, not for trial here, but as the means of obtaining possession of the accused and carrying him abroad.
It is not improbable that factitious accusations should be brought for the mere purpose of procuring the arrest and surrender of a fugitive. Hence it is that the careful provisions of the statute, regulating extradition in this country, commit to the judiciary—versed as that department already is in all the proceedings preparatory to a trial—the duty of arresting the fugitive and of ascertaining whether in fact a crime has been committed, and whether there is sufficient evidence to hold the accused for trial. When these questions have been settled by the judiciary, and not till then, does the nation consent to deny the right of asylum to the fugitive who has sought its protection and deliver him into the hands of the alien prosecutor.
It is needless to add that in the case of Arguelles the Executive has assumed all the authority which by the Constitution is distributed among the treaty-making power, the law-making power, and the judiciary. Without treaty, without law, and without judicial action, the Executive has assumed to do what only all three combined could lawfully empower him to do.
And in making this statement as a proposition of law, we indulge in no personal crimination of the President’s motives. As he makes no legal defence of his conduct, but bases that defence on his good intentions, we make all due allowance for such good intentions while bringing his proceedings to the bar of the law he has transcended. It is one of the inconveniences which attach to such errors of judgment, and which illustrate their practical dangers, that all punishments visited on criminals outside of the laws array a certain sympathy in favor of the culprit, however guilty he may be. Colonel Arguelles may be the criminal he is represented to be by the Cuban authorities, but as these authorities are now seized of his person in a way not authorized by our laws, the penalty he may be called to pay for his alleged crime is one which concerns the honor of the nation in the eyes of the civilized world. It is to be hoped, for the sake of our own credit on the score of humanity, that the proceedings of Spanish jurisprudence in his case may be such as to show that only justice has been done him in the forum to which we have remitted him, even if something less than justice, as justice is understood in this country, has been done him by our authorities in the circumstances under which they have delivered him up for trial. The civilized world sits in judgment not only on the crimes of men, but on the processes by which these crimes are redressed; and when justice is inflicted against the received rules of justice, men never fail to resent the wrong done to the latter, whatever may be their abhorrence at the wickedness of the criminal. It was thus that all Europe thrilled with indignation and horror at the conduct of the King of Saxony, when, in the early part of the 18th century, he delivered up the person of the unhappy Patkul to the vengeance of his [Page 85] sovereign, Charles XIIth, of Sweden, who broke him on the wheel. Men refused to consider the provocations which that nobleman had offered to his king, or the offences he had committed against his country, in their resentment at the wrong done to the “right of asylum” in his person. And so, whatever may be the crimes of Colonel Arguelles, (about which we know nothing personally, as the President of the United States knows nothing legally,) the civilized world, in its respect for the principles of public law and private right violated by his clandestine arrest and deportation, will not hesitate to deplore the process by which this Spanish subject has been brought to justice.
[Translation]
Sentence in the criminal cause prosecuted in this supreme court against Don José Agustin Arguelles, formerly lieutenant governor of the district of Colon; D. Antonio Pratts, local judge of Palmillas; D. José Toral, lieutenant in the municipal guard; D. José Palma, deputy captain at Macaqua; D. Manuel Azuela, who filled the like grade at Yaguaramos; D. Mariano Aguirre, secretary of the lieutenancy of the governorship of Colon; D. José Hilario Valdez, parish curate at the same point; D. Luis Arias, deputy lieutenant at Palmillas; D. Saturnino Santurio, lieutenant, municipal alcalde of Colon; D. Manuel Martieres, commissary of police of the same settlement; D. Matias Gispert, professor of medicine and secretary of the board of health; D. Eugenio Aroiaza, advocate and prefect of the municipality; D. Maximiliano Molino, secretary thereof; and D. Antonio Zucarriche, for stealing some Bozal negroes, apprehended as belonging to a shipment captured within the judicial district of Colon and Cienfuegos, and for falsifications committed to hinder the discovery of this crime.
It appearing in regard to the proceeding that the suit was instituted by this court for ascertaining who were the persons responsible for an introduction of Dozal negroes, effected within the jurisdictions referred to, in the month of November, 1863, and that the individuals aforesaid, subject to this proceeding, were comprehended therein for the culpability which might attach to them from the subtraction of a considerable portion of the captured negroes, for the sale of same, and for the falsifications practiced to cover up these crimes; and that the summary inquiry being ended, and conclusion reached that the stealing and falsifications are criminal acts, entirely distinct from the introduction of African negroes, inasmuch as they constitute ordinary crimes, which in this case were perpetrated through an abuse of the administrative authority which was exercised by D. José Agustin Arguelles. Separate action was instituted for that investigation, and report was made to the supreme court of justice, which, by directions dated the 25th April last and 12th August ordered that certifications of progress should be periodically rendered to it.
[The continuance of this document, in brief, shows the devices resorted to by the accused to evade the administration of the laws bearing on the offence of stealing negroes, and making falsified returns to government of the Bozals landed, and then captured by order of Arguelles. The negroes were landed, brought into the jurisdiction and the safeguards of the law. Prats reports that on Novemver 12, 1863, he took what were reported as 1,009. Arguelles reported fewer, and that many had died, and several missing. Other reckonings made 1,008, and various other numbers. Investigation being had, it was proven that more than 100 had been sold as slaves, among them 11 to Onagdren, 7 to Requo, 1 to Capote, 5 to Perey, 4 to Criade, 9 to Medens, 2 to Lama, 1 to Castellanos, 1 to Escobar, 21 to Pedro, 42 to Fovente, 1 to Eseobedo. That Arguelles gave in pay and compensation of service 12 to Santurio, 1 to Roque, 1 to Arriagh, 1 to Granado, 1 to Diez, 2 to Font, 1 to Tejada, 1 to Cadero, 1 to Lamdem, 8 to a sister of Pratts’s. This number recovered, being [Page 86] 126, purchases of most of these were shown to have been made from Arguelles at nearly $1,000 per head; he claiming to have been authorized to sell them, and also authorized to give many away in compensation of service and loyalty in capturing the imported Bozals. All the details of fraud and falsehood are developed— Arguelles, convicted of stealing negroes, (Bozals,) and of false and fraudulent reports to his superior authority to conceal his crimes, aggravated by the fact that he held high official trust, was sentenced to 19 years (de cadena) at the chain, and $50,000 fine, interdiction of civil rights during the time, and perpetual inability for place of trust, honor, or profit, or political rights, and constant surveillance by the authority until restitution to some of the parties (those he sold to under pretence of authority to do so) of the sums paid by them to him. Valdez, to 8 years in prison, lasting inhabilitacion and payment of costs; Pratts, Toral, Aguirre, and Palmer, to 6 years each (in presidio;) Aria, 2 years; Molino, 5 years in prison; and all six to make restitution to those who had bought from them, and for the damages they had suffered in consequence; Santurio, 7 years in prison; Gispert and Arriaza, 4 years each, to make restitution like the former, and pay costs; Arguelles and Valdez also to make restitution and pay the proportion of costs and charges, notwithstanding their civil inhabilitation.
Zucarriche and Azuela were acquitted, and Martinez subjected to some small conditions.