And the manner of demand by the United States and of compliance by the Spanish government shall be as follows. The person authorized by a justice of the Supreme Court of the United States, or by the district judge where the murder was committed, to pursue the fugitive, may apply to ————-
Evidence on oath, though written and ex parte, shall have the same weight with the judge and grand jury in the preceding cases, as if the same had been given before them orally and in presence of the prisoner.
The courts of justice of the said States and provinces, shall be reciprocally open for the demand and recovery of debts due to any person inhabiting the one, from any person fled therefrom and found in the other, in like manner as they are open to their own citizens; likewise, for the recovery of the property, or the value thereof, carried away from any person inhabiting the one, by any person fled therefrom and found in the other, which carrying away shall give a right of civil action, whether the fugitive came to the original possession lawfully or unlawfully, even feloniously; likewise, for the recovery of damages sustained by any forgery committed by such fugitive. And the same provision shall hold in favor of the representatives of the original creditor or sufferer, and against the representatives of the original debtor, carrier away, or forger; also, in favor of either government or of corporations, as of natural persons. But in no case shall the person of the defendant be imprisoned for the debt, though the process, whether original, mesne, or final, be for the form sake directed against his person. If the time between the flight and the commencement of the action exceed not ——— years, it shall be counted but as one day under any act of limitations.
This convention shall continue in force ————- years, from the exchange of ratifications, and shall not extend to any thing happening previous to such exchange.
Heads of consideration on the establishment of conventions between the United States and their neighbors, for the mutual delivery of fugitives from justice.
Has a nation a right to punish a person who has not offended itself? Writers on the law of nature agree that it has not. That, on the contrary, exiles and fugitives are, to it, as other strangers, and have a right of residence, unless their presence would be noxious; e. g. infectious persons. One writer extends the exception to atrocious criminals, too imminently dangerous to society; namely, to pirates, murderers, and incendiaries. Vattel, L. 1.5. 233.
The punishment of piracy, being provided for by our laws, need not be so by convention.
Murder. Agreed that this is one of the extreme crimes justifying a denial of habitation, arrest, and re-delivery. It should be carefully restrained by definition to homicide of malice prepense, and not of the nature of treason.
Incendiaries, or those guilty of arson. This crime is so rare as not to call for extraordinary provision by a convention. The only rightful subject then of arrest and delivery, for which we have need, is murder. Ought we to wish to strain the natural right of arresting and re-delivering fugitives to other cases?
The punishment of all real crimes is certainly desirable, as a security to society; the security is greater in proportion as the chances of avoiding punishment are less. But does the fugitive from his country avoid punishment? He incurs exile, not voluntary, but under a moral necessity as strong as physical. Exile, in some countries, has been the highest punishment allowed by the laws. To most minds it is next to death; to many beyond it. The fugitive indeed is not of the latter; he must estimate it somewhat less than death. It may be said that to some, as foreigners, it is no punishment.