46 
 
DIPLOMATIC CORRESPONDENCE. 
 
correspondence with the minister of the Netherlands, at his request, to the
gov- 
ernor of the State of New York, and that magistrate (Governor Throop) issued

his  executive warrant for the delivery of the criminal to the minister of

the Netherlands, "to the end that he may be placed under the jurisdiction
of 
the said kingdom of the Netherlands, to be dealt with for his supposed crime,

according to the laws and justice of the said kingdom." 
In the State of Vermont a like habit of extradition had sprung up, and there
, 
the governor, without any law -ofthe State on the subject, and, of course,
without 
treaty, asa direct exercise of authority under the law of nations, and not
for- 
bidden to the States by the federal Constitution, made the extradition by
his ex- 
ecutive warrant. Upon habeas corpus sued out by the criminal, upon solemn

argument the supreme court of Vermont, in full bench, held the extradition
to be 
in pursuance of the law of nations, to be valid without legislation, and
to be 
competent to the State under the Constitution of the United States.  The
judg- 
ment of the State court was brought up for review to the Supreme Court of
the 
United States, and the opinion of the learned justices of that court will,
by a 
little attention to the true point in controversy, be seen to bear upon the
point we 
are now considering, viz., whether a treaty is the source, under the Constitution

of the United States, of the executive authority to surrender criminals,
or 
whether the law of nations supplies that authority to the nation, and the
Con- 
stitution itself confers the exercise of it upon the President. 
The point in judgment in Holmes vs. Jennison (14 Pet. Rep., 649) was whether

the States had authority to surrender criminals when the United States had

made no treaty and no law upon the subject. It was conceded on all hands
that 
this authority belonged to sovereignty, and that its exercise remained with
the 
States unless, at the time of such exercise, it rested with'the United States
under 
the Constitution, and unless its concurrent exercise by the States was incompat-

ible with its possesszon by the federal government. It was apparent, there-

fore, that if a treaty was necessary to put the federal government in possession

of this authority, there being no such treaty, the action of the State of
Ver- 
mont was within its competency; but if the federal government was in pos-

session of this authority without a treaty, then the action of the State
was be- 
yond its competency, unless a concurrent authority was admissible. 
Accordingly, Mr, Justice Thompson with his usual discrimination makes the

turning pont of the jurisdiction of the court to be, whether this power of
sur- 
rendering criminals was in the government of the United States by the Con-

stitution, or whether it needed to have its being and origin in, a treaty.
He 
rejected the jurisdiction for the reason that he held a treaty necessary
to confer 
the power on the government. He observes: 
"There is certainly no specific-provision in the Constitution on the
subject of surrendering 
fugitives from justice from a fOreign country, if demanded, and we are left
at large to con- 
jecture upon various parts of the Constitution, to see if we can find that
such power is, by 
fair and necessary implication, embraced within the Constitution. I mean,
whether any such 
obligation is imposed upon any department of our government by the Constitution
to surren- 
der to a foreign government a fugitive from justice; for unless there is
such a power vested 
somewhere, itis difficult to perceive how the governor of Vermont has violated
any authority 
given by the Constitution to the general government. If such a power or obligation
in the 
absence of any treaty or law of Congress on the subject rests anywhere, I
should not be dis- 
posed to question its being vested in the President of the United States.7
It is a power 
essentially national in its character, and required to be carried into execution
by intercourse 
with a foreign government, and there is a fitness and propriety of this being
done through 
the executive department of the government, which is intrusted with authority
to carry on 
our foreign intercourse. 
"And unless the President of the United States is, under the Constitution,
vested with such 
power, it exists nowhere, *there being no treaty or law on the subject. And
it appears to me 
indispensably necessary, in order to maintain the jurisdiction of this court
in the present 
case, to show that the President is vested with such power under the Constitution."

"The Secretary of State, in answer to the letter of the governor of
Vermont on the sub 
jeet, says: