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The Factor Case and Double Criminality in Extradition

  • Manley O. Hudson (a1)


The recent decision of the Supreme Court of the United States in Factor v. Laubenheimer and Haggard has broken new ground with reference to the interpretation of the extradition treaties between the United States and Great Britain, and it seems to deserve special consideration as a contribution to the law of extradition. Factor's extradition was requested by Great Britain on a charge of receiving certain sums of money, aggregating £458,500, known to have been fraudulently obtained. On the complaint of a British consul, Factor was taken into custody in Illinois, and a United States Commissioner in Illinois issued a warrant for his commitment pending surrender. On a return to a writ of habeas corpus, the District Court for the Northern District of Illinois ordered his discharge from custody, but this order was reversed by the Circuit Court of Appeals. Both the District Court and the Circuit Court of Appeals seem to have regarded extradition as possible only if the offense charged was a crime both by the law of Great Britain and by the law of Illinois; the District Court held that receiving money known to have been fraudulently obtained was not a crime by the law of Illinois, but a majority of the Circuit Court of Appeals, relying chiefly on Kelly v. Griffin, took the contrary view. On certiorari, the Supreme Court held that the offense charged was an extraditable crime even if it is not punishable by the law of Illinois, the opinion being written by Justice Stone. Justice Butler was joined in a vigorous dissenting opinion by Justices Brandeis and Roberts.



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1 (1933) 290 U. S. 276, 54 S. Ct. 191; this Journal, Vol. 28 (1934), p. 149. The case was first argued on April 18, 1933. On May 29,1933, it was assigned for reargument “upon all questions involved, including the question whether the offense charged is an extraditable offense under the treaty of 1889, even if the offense does not constitute a crime under the law of the State of Illinois or under any acts of Congress“; and counsel's attention was “directed to the interpretation placed upon Article X of the treaty of 1842 by the Secretary of State of the United States, John C. Calhoun, shortly after the ratification of the treaty “ and to other available diplomatic correspondence. 289 U. S. 713.

2 No issue was involved as to the nationality of Factor, who was born in England. The American-British treaties apply to the surrender of nationals.

3 The circumstances may be thought to have made Factor's surrender desirable. One of his associates had already been surrendered from New York, Klein v. Mulligan (1931), 1 Fed. Supp. 635, (1931) 50 F. (2d) 687, and his conviction in England had been upheld. Rex v. Klein (1932), 23 Cr. App. R. 185. Another associate had been committed in Pennsylvania, and extradition was waived while appeal was pending. Geen v. Fetters (1932), 1 Fed. Supp. 637. In this latter case the court said: “the question of whether the offense to be extraditable must be an offense under the laws of the asylum state, we leave where the cited cases leave i t” (p. 639); receiving money known to have been fraudulently obtained was said to be a crime by the law of Pennsylvania “quite as nearly as the law of Illinois” applied in Kelly v. Griffin (1916), 241 U. S. 6. It is very difficult to see why the Factor Case was handled as it was handled by the requesting authorities. The brief for the respondent on reargument stated that the case against Factor “for receiving can be made only by showing him to have been a party to the fraud by which the Broad Street Press, Ltd., obtained the money.” If this be true, an act might have been charged which would clearly have been criminal in Illinois. A refusal of extradition on the charge made would not have precluded a later request on another charge.

4 The return on the writ was defended both by the United States marshal, Laubenheimer, and by Godfrey Haggard, His Britannic Majesty's Consul General.

5 (1932) 61 F. (2d) 626.

6 (1916) 241 U. S. 6. In this case the Supreme Court said that receiving money known to have been fraudulently obtained was a crime in Illinois, but it is to be noted that the alleged fraud was against a government.

7 U. S. Treaty Series No. 666; 42 Stat. 2224. Art. 2 of this convention provides that its operation is “confined to cases in which the offences mentioned … having been committed in the United States or in the Dominion of Canada, the person charged with the offense is found in the Dominion of Canada or in the United States respectively.“

8 U. S. Treaty Series No. 719; 44 Stat. 2100. Art. 2 of this convention is identical with Art. 2 of the 1922 convention. It is to be noted, however, that the 1925 convention, unlike the 1922 convention, was entered into by His Britannic Majesty only “in respect of the Dominion of Canada.“

9 U. S. Treaty Series, No. 849; 47 Stat. 2122.

10 Five days after the exchange of ratifications, the 1931 treaty was proclaimed by the President of the United States. The proclamation follows the usual form in stating that the treaty is “made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States of America and the citizens thereof.” Art. 18 of the treaty provides that it shall “come into force ten days after its publication, in conformity with the forms prescribed by the laws of the high contracting parties.” In the United States no form is prescribed by law for the publication of treaties. Nor is any form of publication prescribed by the laws of His Britannic Majesty acting “for Great Britain and Northern Ireland.” Yet the Extradition Act, 1870, provides for its application to a “foreign state “ with which an arrangement” has been made, only if the Act is directed to apply to such state by an Order in Council; and the Order in Council must “recite or embody the terms of the arrangement.” For this reason, British treaties contain a formula such as that employed in the 1931 treaty with the United States; strictly the formula does not cover the provision in §2 of the Extradition Act, 1870, which envisages the publication of an Order in Council containing the text of an arrangement, rather than the publication of the arrangement. While nothing remained to be done in the way of publication by the United States, the British Order in Council had not been promulgated, lest it might have affected the result in the Factor Case. The Supreme Court found it unnecessary to say whether the 1931 treaty had come into force. A distinction may be drawn between the coming into force of the provisions of a treaty for the governments inter se, and the time set by the provisions of the treaty for the performance of the obligations undertaken; in this case, the distinction cannot be applied, however, and it seems quite clear that the treaty of 1931 had not come into force when the Factor Case was decided. The United States is placed in a position where a most important change in the municipal law of the United States is wholly dependent on the issuance of a British Order in Council. In view of this fact, it would seem that the Presidents proclamation ought to have been postponed until after the Order in Council had been issued; indeed, the exchange of ratifications itself may be thought to have been premature. Future treaties of the United States might be drawn to avoid this situation.

11 See the list of treaties in 290 U. S. 294, note.

12 The question was much discussed in the earlier part of the last century, whether states have such an obligation apart from treaty. The view prevailing in the United States is that apart from treaty no obligation exists to surrender persons accused of crime, and the United States law makes no provision for such surrender.

13 Act of Aug. 12, 1848. 9 Stat., c. 167, p. 302; Rev. Stat., §5270.

14 The Act of 1870 has frequently been amended, but the amendments not discussed are unimportant for present purposes.

15 “Acts of Parliament are the sole source, and at the same time the strict limitation of the judicial function” in extradition. Lord Russell of Killowen in In re Arton, [1896] 1 Q. B. 108, 112.

16 “At the outset it was apparent that the Act of 1870 was not an act to carry into effect treaties and conventions for extradition, as is the United States Act of 1848, but one providing a system to which all subsequent treaties of extradition must be adapted, and which could be applied to enforce treaties or arrangements made subject to its provisions.” Secretary of State (Fish) to Colonel Hoffman, March 31, 1876. U. S. Foreign Eelations, 1876, p. 216. The British Government considered the Act “as the embodiment of what was the general opinion of all countries on the subject of extradition.” Id., p. 228.

17 The United States and Canada have been referred to by Mr. Justice Duff as “having three or four thousand miles of common frontier, and affording unexampled opportunities for the escape of persons accused of crime from either country to the other.” Re Collins 11 Brit. Columbia (1905), 436; 10 Can. Criminal Cases, 80, 105.

18 “The Imperial Act [of 1843] was found impossible of execution in Canada.” 1 Moore, Extradition, p. 627.

19 12 Vict., c. 19.

20 31 Vict. c. 94. The Canadian Act has been amended and is now included in 1 Revised Statutes of Canada, 1927, c. 37, under which extradition may be made possible even where there is no treaty or where the crime charged is not covered by an existing treaty.

21 This proviso had also been included in Art. 20 of the Treaty of Amiens of March 25, 1802, between Great Britain, France, Spain and Bavaria. 7 Martens, Beeueil, p. 404. The United States-Swiss treaty of Nov. 25, 1850, varied the language of the proviso: persons were to be delivered up “only when the fact of the commission of the crime shall be so established as to justify their apprehension and commitment in the country where the persons so accused shall be found.” With reference to this treaty, it has been said that the word “country,” under our form of government, “means the special political jurisdiction that has cognizance of the crime.” In re Francois Farez (1870), 7 Blatchford, 345, 357.

22 See Clarke, Extradition (4th ed., 1903), p. 253. In British-French correspondence in 1865-66, relating to an attempted denunciation by France of the British-French treaty of 1843, a proviso almost identical with that in the American-British treaty of 1842 was interpreted to require criminality by the law of the requested state. See Correspondence respecting the Extradition Treaty with France, British Parliamentary Papers, July, 1866, pp. 5, 12.

23 See also In re Smith (1868), 4 Practice Reports (Canada), 215; Re Collins, supra, note 17.

24 (1922) 259 U. S. 304.

25 Cf., Cohn v. Jones (1900), 100 Fed. 639.

26 The Congress of Comparative Law held at The Hague in 1932 declared that extradition agreements ought to be inspired by the principle that the surrender of accused persons constitutes for the requested state an obligation “resulting from the international solidarity in the fight against crime.“

27 This study is limited to the surrender of accused persons, though extradition may also apply to persons convicted in the territory of the requesting state.

28 Numerous recent treaties of extradition make no attempt to list either crimes or acts, but merely require the acts charged to be made criminal by the law of both countries; and frequently a minimum penalty in both countries is requisite. See, for examples, Germany- Czechoslovakia (1923), 23 League of Nations Treaty Series, p. 171; Estonia-Latvia (1923), 37 id., p. 423; Estonia-Lithuania (1924), 43 id., p. 179; Latvia-Lithuania (1924), 25 id., p. 311; Brazil-Paraguay (1922), 53 Journal du Droit International, p. 1146; Finland-Sweden (1924), 23 League of Nations Treaty Series, p. 43; Bulgaria-Serbs, Croats & Slovenes (1924), 26 id., p. 119; Bulgaria-Roumania (1925), 33 id., p. 221; Italy-Czechoslovakia (1926), 55 id., p. 171; Finland-Norway (1926), 43 id., p. 381; Roumania-Czechoslovakia (1926), 54 id., p. 51; Bulgaria-Czechoslovakia (1927), 60 id., p. 169; Czechoslovakia-Latvia (1927), 62 id., p. 229; Estonia-Czechoslovakia (1927), 63 id., p. 255; Albania-Serbs, Croats & Slovenes (1929), 91 id., p. 81; Bulgaria-Greece (1930), 106 id., p. 443; Spain-Latvia (1930), 113 id., p. 135; Spain-Czechoslovakia (1930), 121 id., p. 271; Portugal-Czechoslovakia (1930), 124 id., p. 7; Estonia-Norway (1930), 106 id., p. 147; Italy-Turkey (1926), 58 Journal du Droit International, p. 811; Finland-Italy (1930), 111 League of Nations Treaty Series, p. 295; Latvia- Sweden (1930), 110 id., p. 139; Hungary-Serbs, Croats & Slovenes (1930), 104 id., p. 151; Spain-Bulgaria (1931), 114 id., p. 41; Bulgaria-Turkey (1931), 122 id., p. 17; Italy-Serbs, Croats & Slovenes (1922), 128 id., p. 221; Lithuania-Czechoslovakia (1931), 126 id., p. 261.

29 This view seems to have been taken by the Netherland Government in its refusal to surrender the former German Emperor in 1919.

30 The good faith of the requesting state cannot be questioned by a court. In re Arton, [1896] 1 Q. B. 108, at p. 115; State of Washington v. Fletcher, [1926] 3 D. L. R. 426.

31 Travers states this as a “right” of the requested state. 4 Travers, Droit Pinal International, §2146 II.

32 See In re Cortes (1890), 42 Fed. 47.

33 (1876) 22 Lower Canada Jurist, 109, 112.

34 (1895) 22 Ontario Appeal Reports, 386.

35 State of Utah v. Jones (1925), 44 Can. Criminal Cases, 355; State of Washington v. Fletcher, [1926] 3 D. L. R. 426; Re Wagner, [1928] 4 D. L. R. 615. But see Re Deering (1915), 24 D. L. R. 818; Re Clark, [1929] 3 D. L. R. 737.

36 A British Royal Commission may be thought to have taken this position in 1878: “If it be asked how it is to be ascertained that the offense charged is known and recognized as an offense, the answer is that our own law will afford a sufficient test, being abundantly comprehensive as to offenses against person and property… The English magistrate cannot be expected to know or interpret the foreign law. It is not desirable that he should be required to do more than to see that the facts proved constitute prima facie an offense which would have been within judicial cognizance if done within this country.” British Parliamentary Papers, C. 2039, p. 8. Yet it is not clear that the commission envisaged extradition for offenses not punishable by the law of the requesting state.

37 In inter-state rendition effected under the Constitution of the United States, the act charged may not be required to have been made criminal by the law of the state of asylum.

38 This attitude of hospitality is deeply embedded in the Anglo-American common law, and it led to the refusal by both the United States and Great Britain to surrender without treaty.

39 (1903) 190 U. S. 40, 58.

40 The single decision of a United States court which may be thought to be contra, is In re Metzger (1847), 5 N. Y. Legal Observer, 83, 17 Fed. Cas. 232 (No. 9511). Metzger was committed for surrender to France under the treaty of 1843 on a charge of forgery (faux) which was a crime both by the American (New York) and the French laws, though it seems that the evidence did not “establish probable cause of suspicion, that the crime of forgery defined by our laws has been committed by the accused.” The question whether the act charged should be criminal by the law of the United States (New York) was said to be a consideration “addressed to the political department of the government” over which “the judiciary has no immediate control or jurisdiction.” See also In Matter of Metzger (1847), 5 Howard, 176. Apparently Metzger was not extradited. See 1 Barbour (N. Y.), 248; Clarke, Extradition (4th ed. 1903), pp. 57-58.

41 (1922) 259 U. S. 309, 311. “When an extradition treaty uses general names, such as ‘murder,’ ‘arson,’ and the like, in defining the classes of crimes for which persons may be extradited, the question of whether a given offense comes within the treaty must be determined by the law as it exists in the two countries at the time the extradition is applied for.” Shiras, J., in Cohn v. Jones (1900), 100 Fed. 639, 645.

42 After surrender and conviction, the question of criminality by the law of the requested state cannot be raised. Cohn v. Jones, supra, note 41.

43 1 Moore, Extradition (1891), pp. 112-113. See also, p. 106 note. But see Hawley, International Extradition (1893), p. 6 ff.

44 Piggott, Extradition (1910), p. 228. Other English treatises on extradition take the view that double criminality is required. See Biron & Chalmers, Extradition (1903), p. 11.

45 In 1854, Phillimore stated it as a “circumstance to be observed” in all cases of extradition “that the act done … must be considered as a crime by both states.” 1 Phillimore, International Law, p. 413; (2d ed.), p. 443; (3d ed.), p. 521. The principle that “the act done must be such as is regarded as a crime by both states” was thought by Pomeroy to apply whether extradition was under a treaty or not. Pomeroy, International Law (1886), pp. 237, 238.

46 See, e.g., Bruns, Fontes Juris Gentium, Series B, Sec. I, Vol. I, p. 453.

47 Annuaire de I'Institut de Droit International, 1881-82, p. 81.

48 Id., p. 128; translation from Scott, Resolutions of the Institute of International Law (1916), p. 43.

49 The exception was due to the situation of a land-locked state which might be asked to surrender a person for such a crime as piracy.

50 The requirement of criminality in the law of the requested state is said by Travers to be “excessive,” but he admits that his is not the traditional view and he cites both legislation and jurisprudence which take the traditional view. 4 Travers, op. cit., p. 655 ff. St. Aubin makes the following statement: “International practice and the majority of the authors admit as necessary the existence of a double incrimination.” St. Aubin, l’Extradition et le Droit Extraditionel (1931), pp. 681, 682.

51 See 4 Travers, op. cit, p. 658 ff.

52 E.g., the French law of March 10,1927. Duvergier, Collection des Lois, Vol. 27 (1927), p. 129.

53 Braus, Forties Juris Gentium, A, 2, Vol. 1, pp. 91, 423.

54 Diena, Étude sur I'Extradition (1905), p. 18.

55 The treaty of July 12, 1930, between the United States and Germany, provides for the surrender of persons for listed “crimes or offenses, but only if they are punishable as crimes or offenses by the laws of both countries applicable to the case.” U. S. Treaty Series, No. 836. See also Art. 1 of the Montevideo Convention of Dec. 26, 1933, in Final Act of the Seventh International Conference of American States (prov. ed.), p. 153, and this Journal, Supplement, p. 65. The project for an Extradition Convention, drawn up by the International Commission of Jurists at Rio de Janeiro in 1912, states the necessity of double criminality. U. S. Foreign Relations, 1912, p. 37; this Journal, Supp., Vol. 20 (1926), p. 331. The requirement is also embodied in the Central American Convention of Feb. 7,1923, 2 Hudson, International Legislation, p. 955, and in Art. 353 of the Bustamante Code annexed to the Havana Convention of Feb. 20, 1928, 4 id., p. 2331. In a recent “model draft of an extradition treaty,” drawn up by a subcommission of the International Penal and Prison Commission, extradition is limited to acts “punishable by the law of both states,” except where the laws of the requested state “do not provide for that act merely on account of special external circumstances.” Recueil des Documents en Matiere Pinale et Pinitentiaire (1932), I, p. 478. Resolutions of the International Congress of Comparative Law of 1932 also affirm the principle of double criminality. See also supra, note 28.

56 Where a treaty with Switzerland required extradition only for crimes “subject to infamous punishment,” it was held in In re Francois Farez, supra, note 21, that this referred to punishment under the laws of the requesting state. See also 4 Moore's Digest of International Law, p. 277.

57 Like other treaties, an extradition treaty must be interpreted in the light of a background of international law. Territorial Jurisdiction of the Oder River Commission, Publications of the Permanent Court of International Justice, Series A, No. 23, p. 26. This was admitted by the United States Supreme Court in U. S. v. Rauscher (1886), 119 U. S. 407, where, on the question of trial of an accused person for a crime other than that for which he had been surrendered, it was said that the treaty of 1842 “did not intend to depart in this respect from the recognized public law which had prevailed in the absence of treaties.” It is to be noted, also, that prior to the addition made in 1889 the treaty of 1842 did not except political offenses; yet such an exception should have been read into the treaty. This view was taken by both the United States and Great Britain.

58 In the United States, the President doubtless has power to provide by treaty for the surrender of persons charged with acts which are not made criminal by federal law or by the law of any of the states of the Union; but in view of the nature and purposes of extradition, one would hesitate to place that construction on a treaty if the stipulation were not most explicit.

59 The parties to the treaty of 1842 and the convention of 1889 were the United States of America and Her Britannic Majesty. The later conventions are between the President and His Britannic Majesty; in the 1925 convention His Majesty acted only “in respect of the Dominion of Canada.“

60 See Hudson, Notes on the Statute of Westminster, 1931,46 Harvard Law Review (1932) p. 261.

61 Though the Dominion of Canada itself has a federal composition, the criminal law is uniform throughout the Dominion, its administration being (in part at least) in the hands of the provincial authorities.

62 A similar problem arises in various European states, which, if not strictly federal states, have nevertheless different systems of criminal law in different parts of their territories. Hence, statements of the principle of double nationality made in treaties include not infrequently a specification as to the law of the particular part of the national territory which may be involved. See various treaties to which Czechoslovakia is a party, in 54 League of Nations Treaty Series, p. 51; 60 id., p. 169; 62 id., p. 229. See also the French-Polish treaty of Dec. 30, 1925, 95 id., p. 217.

63 Supra, note 17. In this case, the California law was analyzed at length. Ace, In re O'Connor, [1928] 1 W. W. R. 65.

64 (1865) 6 B. & S. 522.

65 (1903) 190 U. S. 40, 61.

66 Comment by Mr. Justice Duff, in Re Collins, supra, note 17, is to the same effect.

67 Thus, in The King v. Stone, Mr. Justice Trenholme said “that we must find all the conditions in Canada, or that part of Canada where the fugitive is found or apprehended, to justify his extradition from Canada, and that we cannot invoke for that purpose other systems of laws existing in other parts of the Empire.” (1911) 17 Can. Criminal Cases, 377, 397.

68 (1903) 190 U. S. 40. Cf., Kelly v. Griffin (1916), 241 U. S. 6.

69 In Pettit v. Walshe (1904), 194 U. S. 205, Harlan, J., refused to construe the convention of 1889 “as referring to this country as a unit,” and said that “the better construction” was that “the required evidence as to the criminality of the charge” was governed by the law of the state of asylum. Cf., Benson v. McMahon (1888), 127 U. S. 457.

70 (1922) 259 U. S. 309.

71 In Bingham v. Bradley (1916), 241 U. S. 511, 518, where an accused person in Illinois was wanted in Canada, the court noted that the acts charged constituted an offense against the law of Canada and that of Illinois.

72 “Without doubt the treaty contemplated only such acts as were, in 1842, held in the two countries to constitute the offense specified.” Seymour, J., in In re Cross (1890), 43 Fed. 517, 519.

73 This qualification has been thought to serve the purpose of requiring an exact identity of the offense in the two countries. See the views of Professor de Lapradelle, advanced in the Blackmer Case in France, in Causes Celébres du Droit des Gens, Affaire Henry M. Blackmer, Extradition, pp. 110-111. Sed quaere.

74 Records of the diplomatic correspondence are not available to the writer. Moore says that no rule of inclusion or exclusion was followed. 1 Moore, Extradition, p. 108.

75 In re Daniel Washburn (1819), 4 Johnson Chancery, 106.

76 I Moore, Extradition, p. 110.

77 In transmitting the treaty of 1842 to the Senate, President Tyler said that Art. 10 was confined to “such offenses as all mankind agreed to regard as heinous and as destructive to the security of life and property.” Cited in 290 U. S. 299, note.

78 The German Reichsgericht, in a decision of Nov. 30,1899, said that “the English Extradition Act, being the basis of the [British-German] extradition treaty, serves without doubt for the interpretation of the latter.” Fontes Juris Gentium, A, 2, Vol. 1, pp. III , 395.

79 (1891) 17 Cox Crim. Cases, 253.

80 The English and French versions of this treaty are not equivalent. The English version lists “fraud by a bailee, banker, agent, factor, trustee or director, or member, or public officer of a company made criminal by any act for the time being in force “; while the French version lists “abus de confiance ou détournement par un banquier, commissionaire, administrateur, tuteur, curateur, liquidateur, syndic, officier ministeriel, directeur, membre, ou employé d'une société, ou par toute autre personne.” 67 British and Foreign State Papers, p. 8; 2 Martens, Nouveau Recuil G én éral (2 sér.), p. 459.

81 See also Ex parte Piot (1883), 15 Cox Crim. Cases, 208.

82 “With regard to the general statement that the act must be criminal by the laws of both states, it would seem to be no more than a special reference to the cardinal principle applicable to all cases that the fugitive's act … must be an offense against the laws of both states.” Piggott, Extradition (1910), p. 228.

83 The United States law as to the slave trade was also closely limited by the provisions in the statutes.

84 The British Act of 1873 (§3) extended the provisions of the Act of 1870 to accessories.

85 Appendix to Petitioner's Brief on Reargument, p. 564.

86 U. S. Department of Labor, Children's Bureau Publication No. 145, p. 4.

87 Tremeear's Code, 1929, §301. If the girl is between 14 and 16 years of age, consent is nugatory, but special proof is required.

88 Roy, Indian Penal Code, p. 701.

89 Similar questions were put in the Blackmer Case in France. See supra, note 73.

90 On June 1, 1932, the Uniform Desertion and Non Support Act had been adopted at least in part by 22 states of the United States.

91 [1929] 3 D. L. R. 737.

92 (1930) 66 Ont. 158.

93 Cf., In re Bouvier (1872), 42 L. J. Q. B. 17.

94 In 1876, the Secretary of State of the United States referred to this §27, and it might have become very important on the question of trying a person for a crime other than that for which he has been surrendered. See U.S. Foreign Relations, 1876, p. 206.

95 See In re Bellencoutre (1891), 17 Cox Crim. Cases, 253.

96 One of the earliest cases to arise was that of a negro whose surrender was sought by the United States for robbery committed while a slave. The surrender was refused, and in the ensuing correspondence the Secretary of State (Upshur), writing to the American Minister in London (Everett), stated that if “the laws of England would justify a robbery because it was committed in assertion of some independent right,” the refusal would be justified. Appendix to Petitioner's Brief on Reargument, p. 9. This was an admission of the principle of double criminality, but as it was in a letter to an American Minister little weight should be attached to it.

97 “what may constitute the crime of murder in Florida, may be very far from doing so according to the British laws, or even to the laws of the Northern States of America.” Appendix to Petitioner's Brief on Beargument, p. 45.

98 The whole of the Calhoun correspondence was directed to obtaining a construction of the treaty and not to having the negroes surrendered. Under the Act of 6 and 7 Victoria, c. 76, the British Government had no power to surrender after the decision of the Bahama court.

99 Appendix to the Petitioner's Brief on Reargument, p. 47.

100 Id., p. 72.

101 The existence of slavery in the United States down to the period of the Civil War created difficult problems which raised nice questions as to the treaty of 1842. Anderson's Case became the most famous of the cases litigated. In escaping from apprehension as a fugitive slave, Anderson killed his would-be captor in Missouri. A demand by the United States for his surrender created intense public feeling in England as well as in Canada where he had taken refuge. After his commitment, the Canadian Court of Queen's Bench refused his discharge on habeas corpus, one of three judges dissenting. (1860) 20 Upper Canada, Q. B. 164. Pending appeal, the British Government directed that there be no surrender whatever the result of the appeal. Clarke, Extradition (4th ed., 1903), p. 99 ff. A writ of habeas corpus was issued by the Court of Queen's Bench in England. (1861) 30 L. J. Q. B. 129. However, Anderson's discharge was ordered by the Canadian Court of Common Pleas. (1861) 11 Upper Canada Common Pleas, 9. See Mr. Justice Duff's discussion of Anderson's Case, in Re Collins, supra, note 17.

102 The negotiations were resumed from time to time. On June 25,1886, a convention was signed by representatives of both governments, but the Senate of the United States withheld consent to its ratification.

103 Appendix to Petitioner's Brief on Reargument, p. 113.

104 Id., p. 117.

105 Id., p. 167.

106 Id., p. 142.

107 In re Metzger, supra, note 40, arose before 1889.

108 (1901) 107 Fed. 272.

109 (1902) 18 Times Law Reports, 231.

110 Be Latimer (1906), 10 Can. Cr. Cases 244; Re William Staggs (1912), 20 Can. Cr. Cases, 306; Ex parte Thomas (1917), 38 D. L. R. 716; In re O'Connor, supra; Re Wagner, supra; Re Clark, supra, note 35. In the case of Martin InsuU, decided by the Ontario Court of Appeals on March 16, 1934, the criminality of the act charged by the law of Canada and by that of Illinois was referred to. Re Insull [1934] O. W. N. 194.

111 See supra, note 73. Mr. Robert E. Olds was of counsel for the United States in this case; copies of his memorandum, printed in French and in English, by A. Pedone, Paris, are in the Harvard Law Library.

112 Hudson, Cases on International Law, p. 1034. The report of the case there given was reprinted from manuscript; no other report is available to the writer, and it is doubted whether the opinion has been published in France.

113 The convention of 1922 provided that it should “be considered as an integral part” of the conventions of 1889, 1900 and 1905, and the convention of 1925 provided that it should “be considered as an integral part” of the conventions of 1889, 1900, 1905 and 1922.

114 Reference has been made, above, to specific provisions of the conventions of 1922 and 1925.

115 (1928) 278 U. S. 123.

116 (1924) 265 U. S. 332.

117 In In re Arton, the British court professed to be giving a “liberal” interpretation to a treaty with France, but held that the charge satisfied the requirement of criminality by the laws of both countries. [1896] 1 Q. B. 108, 117.

118 The reliance of the Supreme Court in this case is in striking contrast with its attitude in U. S. v. Rauscher, supra, note 57, where it was held that a person surrendered under the treaty of 1842 on a charge of murder might not be placed on trial for cruel and unusual punishment. This question had been discussed at length in diplomatic correspondence, and the Secretary of State had taken a very strong position in the Winslow and Lawrence cases that the treaty being silent on the point, it permitted the trial of a surrendered person for an act other than that for which he might be or had been surrendered. U. S. Foreign Relations, 1876, p. 210 ff. The court showed no disposition to give “weight” to this construction, which was opposed by Great Britain, stating that the negotiations were “inconclusive.“

119 One of these considerations should have been the fact that the American-British treaties do not except nationals from the surrender provided for; but this was not referred to by the court. The United States has many treaties which do not require the surrender of nationals, and such a treaty might be construed more “liberally” than one which provides for the surrender of both nationals and aliens.

120 In a note the court cites the statutes of 22 of the 48 states of the Union, to indicate that “under the law of many states” of the Union, the acts charged against Factor are “punishable either as the crime of receiving money obtained fraudulently, or by false pretenses, or as larceny.” The same citations appear in the Brief for the Respondent on Reargument, pp. xxxviii-xxxix. An examination of these statutes made by Professor Livingston Hall, of the Harvard Law School, has revealed that in six of the 22 statutes cited, viz., those of Alabama, Idaho, Kansas, Missouri, Montana and Utah, the acts charged against Factor are not made criminal. As to five others of the 22 statutes, there is doubt on the point.

121 Dana, in his notes to Wheaton, said: “Assuming that the offence charged must have the substantial elements of that offence by the general law of both countries.” Wheaton, International Law (8th ed.), p. 187, note. In American consular courts, the search for a general American law to be applied has broken down lamentably. See Biddle v. U. S. (1907), 156 Fed. 759.

122 Charlton v. Kelly (1913), 229 U. S. 447.

123 The court says that such a failure “would not be ground for refusal by this government.” The statement goes too far, and it deals with a matter which is beyond the Court's province.

124 The Supreme Court has recently said that “the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress” of the United States. Pigeon River Co. v. Cox (1934), 54 S. Ct. 361. Similarly, that intention should not be lightly imputed to another state which is a party to the treaty. There the court found a “practical construction” of a treaty provision in Ontario legislation, saying that “we perceive no reason for ascribing to that [the Ontario] legislature an intention to override the provision of the treaty but rather see in that action an assumption on the part of the legislature that its course was not repugnant to the treaty.” The case arose under a provision of the treaty of 1842; and the “extraordinary situation” produced by varying constructions placed on this provision by American and Canadian courts seems to have led the Supreme Court to adopt a construction consistent with the result reached in Canada. The decision presents an interesting contrast to that in Factor v. Laubenheimer.

125 The court ignores the language of the Act of 1870, as well as the preamble to the first schedule to that Act. Moreover, under British and Canadian law, it is not enough that the offenses named in the treaties should be offenses by the law of the place of asylum; it is necessary, also, that the act charged should be made criminal by the law of the place of asylum.

126 Receiving money known to have been fraudulently obtained, though a crime by the law of the United Kingdom, may not be a crime by the law of all the territories of His Britannic Majesty. Hence extradition might vary from place to place.

127 The treaty of 1931 constitutes in part a revision of the earlier treaties, and it is notable that some of the qualifications in the earlier treaties as to the offenses being “made criminal by the laws of both countries” have been omitted. Art. 3, however, lists “malicious injury to property, if such crime or offence is indictable“; and it adds with reference to “participation” that it must “be punishable by the laws of both high contracting parties.” Hence, the treaty is open to the Factor v. Laubenheimer construction. Art. 3 also lists “indecent assault if such crime or offence be indictable in the place where the accused or convicted person is apprehended.“

The Factor Case and Double Criminality in Extradition

  • Manley O. Hudson (a1)


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