EXECUTIVE DISCRETION

[$ 340 In view of the provision of the Act of Congress permitting the accused to secure his release under specified circumstances, if within two calendar months after the order of commitment, he shall not have been conveyed out of the United States, any revisory action on the part of the Secretary of State must necessarily be taken without delay.1 Hence, an appeal in behalf of the accused from the order of commitment should be made imme

of Am. Soc., III. 95, 114, citing Moore, Extradition, I, §§ 374-376; and the Pouren Case.

Mr. Root, Secy. of State, in a communication to Mr. Shields, United States Commissioner, Oct. 13, 1908, declared: "Counsel for Jan Janoff Pouren, whom, pursuant to the provisions of our treaty of extradition with Russia, you recently committed, upon various charges, for surrender to that Government, have submitted to the Secretary of State certain affidavits not offered before the Commissioner, which are intended to show that the offences with which Pouren is charged and for which he was committed for surrender are of a political character.

"It would appear that in submitting these affidavits to the Secretary of State, counsel for the accused acted under the mistaken belief that matters of this sort might be brought directly before the Executive even though forming no part of the record of the case. Such, however, is not the practice of this Department which has, in the past, repeatedly refused to consider evidence which did not form a part of the record submitted by the committing magistrate.

The evidence which counsel now offer is clearly of a kind that should have been submitted to the committing magistrate at the hearing when full opportunity was afforded, in order that such portions of it as might be found proper should become a part of the record and so be considered by the Commissioner in reaching his determination to release or hold the fugitive. Since as to the merits the only defence offered by the accused in this case appears to be that the offences with which he is charged are political in their character, and since the mistaken action of his counsel practically deprived him of this defence at the hearing, and since, further, if the offences are in reality political, extradition for their commission is expressly prohibited by the treaty, it would seem that the plain intent of the treaty would fail if this evidence were now altogether excluded from consideration.

"The courts have in the past repeatedly held fugitives, against whom a demanding government failed in the first instance to establish an extraditable offence, to await the production of further evidence by the demanding government, and fugitives have afterwards been surrendered upon such evidence so produced. Fair play and justice would appear to require that the fugitive in a proper case should be given similar reasonable opportunities.

"It would seem, therefore, that the fugitive should not under these circumstances be punished for his counsel's mistake, but should be given a reasonable opportunity to present such further evidence as he may have bearing upon this question of political offence.

"The record is therefore returned to you to the end that you may reopen the case and permit the counsel for both parties to offer such further evidence as they may see fit relating to the question of political offences. Upon the receipt of the amended certified record and your decision thereon, the Secretary of State can determine whether the warrant of surrender should issue.' (The author is indebted to the courtesy of Mr. Knox, Secy. of State, Jan. 17, 1913, for a copy of the foregoing communication.)

1 Rev. Stat. § 5273. Concerning it see In re Dawson, 101 Fed. 253; also, Mr. Olney, Secy. of State, to Messrs. Ingram & Hewitt, May 11, 1896, 210 MS. Dom. Let. 94, Moore, Dig., IV, 404; Mr. Adee, for Mr. Knox, Secy. of State, to the Ambassador of Austria-Hungary, Oct. 26, 1910, For. Rel. 1910, 78.

diately upon the entering thereof. Such proceedings, however important, are of an informal character. The filing of briefs by counsel is permitted. Should the Department of State deem it useful, opportunity for informal conference with the law officer of the Department may also be given. "It is not the practice of the Department to have formal hearings in extradition cases." 1 Several of the more recent treaties of the United States make provision that extradition shall be deferred where the accused is being prosecuted in the State upon which requisition is made, for an offense there committed, until at least he is entitled to liberation. It is said that the "warrant of the Secretary of State for the surrender of a fugitive from justice is subject to the authority of the courts of the United States to hold the fugitive for trial on any charge which may be pending therein against him."

$341. Transit.

(၁)

"3

No foreign State having custody of a person surrendered to it by any other, pursuant to extradition proceedings, may lawfully convey him through the territory of a third State or into a place subject to its exclusive control without its consent. Hence, special

1 Mr. Root, Secy. of State, to Mr. Hyde, of counsel for Christian Rudovitz, Dec. 15, 1908, file No. 16649/11; also Moore, Extradition, I, § 376.

2 See, for example, Art. VI of treaty with Guatemala, Feb. 27, 1903, Malloy's Treaties, I, 881. Also Mr. Hay, Secy. of State, to Mr. Aspiroz, No. 158, March 14, 1901, MS. Notes to Mexican Legation, X, 573, Moore, Dig., IV, 402; correspondence between the United States and Mexico in 1895, respecting the Case of Chester W. Rowe, For. Rel. 1895, part II, 997–1011, Moore, Dig., IV, 302-303, 401-402.

The language in the text is quoted from that in Moore, Dig., IV, 401, which is based upon the following authorities: Mr. Gresham, Secy. of State, to Mr. Romero, Mexican Minister, May 15, 1893, MS. Notes to Mexico, IX, 666; Mr. Adee, Acting Secy. of State, to Mr. Romero, July 3, 1893, id., 676; Mr. Gresham to Mr. Romero, July 12, 1893, id., 679; Mr. Rockhill, Acting Secy. of State, to Atty.-Gen., July 21, 1896, 211 MS. Dom. Let. 440.

4 Mr. Frelinghuysen, Secy. of State, to Mr. Brewster, Atty.-Gen., Jan. 2, 1885, 153 MS. Dom. Let. 549, Moore, Dig., IV, 406. "In consequence of the theory of English and American jurisprudence, regarding the territoriality of crime, no person can lawfully be arrested or held in custody in this country for a crime committed outside of its jurisdiction, except as provided by statute or by treaty." Memorandum to the Japanese Embassy, March 2, 1907, For. Rel. 1907, II, 759.

In 1908 the German Embassy objected to the action of the American ConsulGeneral at Tangier in having put on board a German merchant vessel in 1906, for transportation to New York, without application for the assent of the German government, one Paul O. Stensland in the custody of two authorized agents of the United States, through whose efforts he had been arrested. For. Rel. 1908, 353–355.

See difficulties connected with the transit of a fugitive from justice in the course of extradition proceedings between Luxemburg and the United States, contained in For. Rel. 1910, 81-104.

TRANSIT

[§ 341 arrangements have been made necessary for the return of a fugitive to the United States where a vessel conveying him thereto was obliged to stop at an intermediate foreign port. In the absence of an appropriate Act of Congress, or of a treaty, the executive authority of the United States is believed to lack the right to consent to transit through its territory, at least to the extent of preventing the courts from releasing the prisoner by a writ of habeas corpus.2 While the United States may at any time object to the transit through its domain of fugitives in the course of transportation between third States, the Department of State has declared that "this is a right which in practice is left to be invoked by the party in appropriate judicial proceedings and not by this government in the first instance." 3

1 Memorandum to the Japanese Embassy, For. Rel. 1907, I, 759, 760, referring also to the case in For. Rel. 1878, 151, where, in transit across the Isthmus of Panama, the fugitive was permitted to escape.

2 Mr. Strobel, Third Assist. Secy. of State, to Mr. Coppinger, Consul at Toronto, No. 9, Feb. 20, 1894, 144 MS. Inst. Consuls, 411, Moore, Dig., IV, 406.

It may be observed that Art. XVI of the treaty with Mexico of Feb. 22, 1899, which makes provision for the transit of fugitives through the territories of the contracting parties, declares that the Article shall not take effect "until the Congress of the respective countries shall by law authorize such transit, and the issue of a warrant therefor." Malloy's Treaties, I, 1189.

See, also, treaty with Great Britain of May 18, 1908, in reference to reciprocal rights for the United States and Canada in the matters of conveyance of prisoners and wrecking and salvage. Malloy's Treaties, I, 830.

Art. XIV of the treaty with Salvador of April 18, 1911, makes provision for transit, where the fugitive is not a citizen of the country to be passed through, if the permission of the Secretary of State of the United States, or of the Minister for Foreign Relations of Salvador, as the case may be, is first obtained. U. S. Treaty Series, No. 560, Charles' Treaties, 111.

3

Memorandum to the Japanese Embassy, March 2, 1907, For. Rel. 1907, 759, 761.

Nationality refers to the relationship between a State and an individual which is such that the former may with reason regard the latter as owing allegiance to itself. The State may describe such a person as its national. It will be seen that in the case of a minor child, the right to claim allegiance is oftentimes challenged or regarded as held in abeyance, when the sovereign does not also possess the power to exact allegiance. Hence the State may

1 See, generally, documents in Moore, Dig., III, 273-810; cases in Moore, Arbitrations, III, 2449-2655; papers relating to Expatriation, Naturalization and Change of Allegiance, For. Rel. 1873, II, 1185-1438; Report on Citizenship of the United States, Expatriation and Protection Abroad, by J. B. Scott, David J. Hill and Gaillard Hunt, Washington, 1906, House Doc. No. 326, 59 Cong., 2 Sess.; Frederick Van Dyne, Čitizenship of the United States, Rochester, 1904; same author, Law of Naturalization of the United States, Washington, 1907; Compilation of Certain Departmental Circulars relating to Citizenship, Registration of American Citizens, Issuance of Passports, etc., Department of State, 1916.

For bibliographies of the extensive literature relating to Nationality see Clunet, Tables Générales, I, 559-587, 915-919; Bonfils-Fauchille, 7 ed., § 417; E. M. Borchard, Diplomatic Protection, § 320; Carlo Bisocchi, Acquisto e Perdita della Nazionalità, Milan, 1907, xxiii-xxxiv; A. G. de Lapradelle, De la Nationalité d'Origine, Paris, 1893, ix-xvii.

See, also, Edouard de Germiny, Les Conflits de Nationalités devant les Juridictions Internationales, Paris, 1916; Ernest Lehr, La Nationalité dans les Principaux Etats du Globe, Paris, 1909; Sir Francis T. Piggott, Nationality, 2 parts, London, 1906; E. S. Zeballos, La Nationalité (au point de vue de la législation comparée et du droit privé humain), French translation by André Bosq, 3 vols., Paris, 1914-1916; E. Oudin, "Etat des traités et lois relatifs à la Nationalité et la Naturalisation en vigueur dans les principaux pays au 15 avril 1917", Clunet, XLIV, 817-841; W. W. Willoughby, "Citizenship and Allegiance in Constitutional and International Law", Am. J., I, 914; D. O. McGovney, "American Citizenship", Columbia Law R., XI, 231 and 326; Richard W. Flournoy, Jr., "Observations on the New German Law of Nationality", Am, J., VIII, 477 (text of law printed in Supp., Am. J., VIII, 217); T. H. Thiesing, "Dual Allegiance in the German Law of Nationality and American Citizenship", Yale Law J., XXVII, 479.

IN GENERAL

[§ 342 not be disposed to shield him from the conflicting although reasonable demands of a foreign country within whose territory he may happen to be, so long as he remains therein. In the case of an adult, it will be found that if the claim to his allegiance has a just foundation, the retention of his national character, according to the view of the United States, does not depend upon his remaining within the physical control of his sovereign. Hence, until his expatriation, he may commonly invoke its aid to protect himself from the exactions of any other.2

In a broad sense international law limits the right of a State to impress its national character upon an individual, or to prevent that character from being lost or transferred. The freedom of action of each member of the family of nations is, however, wide. That circumstance, as well as the tendency of States to declare by statute what persons are deemed to be nationals by birth, and how nationality may be acquired or lost, serve to obscure from view the final test of the reasonableness of the local law.

Citizenship, as distinct from nationality, is a creature solely of domestic law. It refers to rights which a State sees fit to confer upon certain individuals who are also its nationals. When the Constitution or laws of the United States declare that persons born under specified circumstances, or changing their allegiance by certain processes, shall become American citizens, citizenship may be truly regarded as a source of American nationality; for the citizen of the United States is necessarily also a national of the United States. It is to be observed, however, that the United States claims as nationals numerous persons upon whom it has not conferred rights of citizenship. International law is concerned with American citizenship only in so far as it emphasizes or establishes simultaneously American nationality.

1 Double Allegiance, infra, § 372.

2 This is indicated in the attitude of the United States respecting the status of naturalized American citizens. The Right of Expatriation, infra, §§ 376– 379.

"National character, in legal and diplomatic discussion, usually is denoted by the term 'citizenship.' In most cases this is not misleading, since citizenship is the great source of national character. It is not, however, the only source. A temporary national character may be derived from service as a seaman, and also, in matters of belligerency, from domicil, so that there may exist between one's citizenship and his national character, for certain purposes, an actual diversity. . Citizenship, strictly speaking, is a term of municipal law, and denotes the possession within the particular State of full civil and political rights, subject to special disqualifications, such as minority or sex. The conditions on which citizenship is acquired are regulated by municipal law." Moore, Dig., III, 273.