Of the treaties now in force on the subject of extradition, the earliest is that of 1842, with Great Britain. [8 Stat 576.] Its form has, in general, been followed in the others. An occasional recurrence to it will prevent their phraseology from being applied with too much latitude. But an adherence to it so close as to exclude reasonable cosmopolitan interpretation of them should be not less avoided as too narrow.
What was meant by "reasonable cosmopolitan interpretation" then was illustrated as follows [45] :
How, and how far, the crime in question must have been the subject of a charge or public accusation, in the country whose government asks the extradition, does not appear distinctly in the treaties, or in any opinion of the supreme court of the United States. The subject has been discussed elsewhere, but not satisfactorily. Its difficulties are, in part, removed by the acts of congress of 1848 and 1860 [46] . The argument that there must have been some authorised public accusation of equivalent effect with what is here, and in England, called an indictment, cannot prevail. To adopt such a rule, would interpolate in the treaties a condition requiring what might, in some countries, be considered objectionable as a partial prejudication of guilt in cases to be afterwards tried. The treaty with Great Britain certainly requires no previous indictment or presentment. Between the United States and that country, such a condition, if intended, would have been expressed. In Kaine's Case [47] the only process had been a warrant issued in Ireland under an ex parte deposition. The warrant had not been executed, service of it having been successfully evaded. This warrant and a copy of the deposition, certified and attested under the second section of the act of 1848, appear to have been thought sufficient, together, to satisfy the requirements of the treaty So far as concerns mere accusation in the country whose government makes the application, any proceeding in that country under which evidence has been, or might lawfully be taken there, with a view either to a future criminal prosecution, or to deciding whether to institute one, satisfies the requirements of the treaty. (Emphasis added.)
1. (1863) 17 Fed Cas 975.
2. Muller's Case (1863) 17 Fed Cas 975 at 975.
3. Muller's Case (1863) 17 Fed Cas 975 at 975-976.
4. The text of the statutes of 1848 and 1860 is set out in Moore, A Treatise on Extradition and Interstate Rendition (1891), vol 2, pp 1162-1165. The legislation invested certain courts with jurisdiction to issue warrants for the apprehension of persons "charged" in a complaint made under oath or affirmation, to take the evidence of criminality put forward, and to determine whether it be deemed sufficient "to sustain the charge under the provisions of the proper treaty or convention"; evidence would be received for this purpose if so authenticated as to entitle it to be received for similar purposes by the tribunals of the foreign country "from which the accused party shall have escaped". See also Semmelman, "Federal Courts, the Constitution, and the Rule of Non-Inquiry in International Extradition Proceedings", Cornell Law Review, vol 76 (1991) 1198, at pp 1208-1210.
5. (1852) 55 US 111.