UNITED STATES V. RAUSCHER, 119 U. S. 407 (1886)

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U.S. Supreme Court

United States v. Rauscher, 119 U.S. 407 (1886)

United States v. Rauscher

Submitted March 2, 1886

Decided December 6, 1886

119 U.S. 407


Apart from the provisions of treaties on the subject, there exists no well defined obligation on one independent nation to deliver to another fugitives from its justice, and though such delivery has often been made,

Page 119 U. S. 408

it was upon the principle of comity. The right to demand it has not been recognized as among the duties of one government to another which rest upon established principles of international law.

In any question of this kind which can arise between this country and a foreign nation, the extradition must be negotiated through the federal government, and not by that of a state, though the demand may be for a crime committed against the law of that state.

With most of the civilized nations of the world with which the United States have much intercourse, this matter is regulated by treaties, and the question now decided arises under the treaty of 1842 between Great Britain and the United States, commonly called the Ashburton Treaty.

The defendant in this case being charged with murder on board an American vessel on the high seas, fled to England and was demanded of the government of that country, and surrendered on this charge. The Circuit Court of the United States for the Southern District of New York, in which he was tried, did not proceed against him for murder, but for a minor offense not included in the treaty of extradition, and the judges of that court certified to this Court for its judgment the question whether this could be done.


(1) That a treaty to which the United States is a party is a law of the land, of which all courts, state and national, are to take judicial notice and by the provisions of which they are to be governed, so far as they are capable of judicial enforcement.

(2) That on a sound construction of the treaty under which the defendant was delivered to this country, and under the proceedings by which this was done, and acts of Congress on that subject, Rev.Stat. §§ 5212, 5275, he cannot lawfully be tried for any other offense than murder.

(3) The treaty, the acts of Congress, and the proceedings by which he was extradited clothe him with the right to exemption from trial for any other offense until he has had an opportunity to return to the country from which he was taken for the purpose alone of trial for the offense specified in the demand for his surrender. The national honor also requires that good faith shall be kept with the country which surrendered him.

(4) The circumstance that the party was convicted of inflicting cruel and unusual punishment on the same evidence which was produced before the committing magistrate in England in the extradition proceedings for murder does not change the principle.

The case is stated in the opinion of the Court.

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