48 
 
DIPLOMATIC CORRESPONDENCE, 
 
pursuance thereof. Whether Congress could confer the power independently
of a treaty is a 
question not necessarily involved in this case and need not beexamined. If
it was, as at 
present advised, I am free to say that I have found no such power in any
article or clause of 
the Constitution delegated to that body by the people of the State. 
"When the casus fizderis occurs, the requisition or demand must be made
by the one na- 
tion upon the other; and, upon our system of government, a demand made uponthe
nation 
must be made upon the President, who has charge of all its foreign relations,
and with whom 
only foreign governments are authorized or even permitted to hold any communication
of a 
national concern. He alone is authoiized by the Constitution to negotiate
with foreign gov- 
ernments and enter into treaty obligations binding upon the nation; and in
respect to all 
questions arising out of these obligations, or relating to our foreign relations,
in which other 
governments are interested, application must be made to him. A requisition
or demand, 
therefore, upon this government must, under any treaty stipulation, be made
upon the Ex- 
ecutive, and cannot be made through any other department or in any other
way." 
And the learned justice then quoted, with approval, certain propositions
of 
Mr. Marshall on this point, above given from his speech in the case of Thomas

Nash. 
Upon a survey of all these cases before the federal and State judiciaries,
in 
much diversity and no inconsiderable contrariety of theory and reasoning,
it 
may confidently be asserted that the weiglht of authority holds- 
First. That the function of extraadition is executive and not judicial. 
Second. That it pertains to the federal and not to the State governments.

Third. That it is conferred on the federal government by the Constitution

itself, and exists antecedent to and independent of treaties. 
Fourth. That it is attributed to and may be exercised by the Executive 
without the need of legislative aid. 
Upon the primary question whett er, by the law of nations, extradition of

fugitive criminals is absolutely obligatory, or only discretionary, upon
con- 
siderations of justice, humanity and comity, it may be stated that the latter

seems to be the view more generally accepted in the federal jurisprudence,
the 
obligatwn being considered as imposed only by treaty stipulations to that
effect. 
This 'view was held by Attorney General Wirt, and the expediency of exer-

cising this discretionary power by the Executive, in proper cases, was recognized

by him.   In giving these views in a case presented by the Executive for
his, 
official advice, he accompanies them with the suggestion that the aid of
legis- 
lation is necessary, and should be given.      An examination of Mr. Wirt's

opinion given to the government on the subject of the surrender of property

by the Executive, on requisition, (which Mr. Marshall, as we have seen, demon-

strated to be identical in principle with the extradition of criminals,)
will, we 
think, forcibly expose his error in this view of the need of legislative
aid to 
invigorate the executive authority. 
r. Wirt says, in an opinion under date of November 20, 1821: 
"The truth seems to be that this duty to deliver up criminals is so
vague and uncertain as 
to the offences on which it rests, is of so imperfect a nature, as an obligation,
is so incon- 
veniently encumbered in practice by the requisition that the party demanded
shall have been 
convicted on full and judicial proof, or such proof as may be called for
bythe nation on 
whom the demand is made, and the usage to deliver or to refuse, being perfectly
at the 
option of each nation, has been so various and conequently so uncertain in
its action, that 
these causes combined have led to the practice of providing by treaty for
all cases in which a 
nation wishes to give herself the right to call for fugitives from her justice.

"I am further of the opinion that even if, by the laws and usages of
nations, the obligation 
existed, and were a perfect obligation, and the proof which is offered of
the guilt of the 
accused also satisfied the requisitions of that law, still the President
has no pow.r to make 
the delivery. The Constitution, and the treaties and acts of Congress made
under its 
authority, comprise the whole of the President's power. Neither of these
contains any pro- 
vision on the subject. He has no power to arrest any one, except for the
violation of our 
own laws. A treaty or an act of Congress might clothe him with the power
to arrest and 
deliver up fugitive criminals from abroad, and it is, perhaps, to be desired
that such a 
power existed, to be exercised or not, at his discretion, for although not
bound to deliver up 
such persons, it might very often be expedient to do it. There could certainly
be no ob- 
jection to the exercise of such power in a 'case like the present. It would
violate no claim 
which these fugitives have on us. Humanity requires us to afford an asylum
to the un-