dissenting.
I. The decision just announced holds that the United States is bound by treaty to surrender its citizens and others to England there to be prosecuted criminally and punished for that which if committed here would transgress no law—federal or state. And it is so held despite the established rule that England is hot by the treaty bound to grant any extradition upon the demand of this country unless the crime charged against the fugitive is also a crime under English law. The Extradition Act, 1870, § 26, and First Schedule. Ex parte Piot, 15 Cox C.C. 208. Re Bellencoutre, 17 Cox C.C. 253. Heretofore, this court has steadfastly held that a fugitive, whether alien or a citizen, will not be extradited unless the facts alleged against him in the demanding country are there made criminal, constitute a crime covered by the treaty and are denounced as crime either by some Act of Congress or by the laws of the State where the fugitive is found. Wright v. Henkel, 190 U.S. 40, 58; Kelly v. Griffin, 241 U.S. 6, 14, 15. Bingham v. Bradley, 241 U.S. 511, 517-518. Collins v. Loisel, 259 U.S. 309, 311-312, 317. See Pettit v. Walshe, 194 U.S. 205, 217-218. Glucksman v. Henkel, 221 U.S. 508, 513. The lower courts have adhered to the same rule. In re Muller, 17 Fed. Cas. 975. Cohn v. Jones, 100 Fed. 639, 645-646. In re Frank, 107 Fed. 272, 277. Powell v. United States, 206 Fed. 400, 403. Collier, v. Vaccaro, 51 F. (2d) 17, 19. Bernstein v. Gross, 58 F. (2d) 154, 155. See Greene v. United States, 154 Fed. 401, 406. Cf. In re Dubroca y Paniagua, 33 F. (2d) 181.1 *306All the text writers, at least so far as research of counsel and court has disclosed, lay down the same principle. Pomeroy, International Law (ed. by Woolsey) .§§ 198, 199.' Biron and Chalmers, Extradition, p. 11. ■ 1 Phillimore, International Law (3rd ed.), § 367, p. 521. Moore, Extradition, §§ 94, 96.
II. Petitioner, found in Illinois, is accused in England of having received money knowing if to have been fraudulently obtained by the Broad Street Press, Limited. Item 3 of the Convention of 1889 contains the pertinent wbrds—“ receiving any money . . . knowing the same to have been ... fraudulently obtained.” Such receiving has not been made criminal by any Act of Congress or any law of Illinois. On that ground, petitioner sought discharge on habeas corpus. Kelly v. Griffin, supra, held that acts such as those alleged against petitioner constitute crime in Illinois. England did not contend that local criminality is not essential but relied upon the ruling in that case. District Judge Fitzhenry, deeming himself bound, remanded petitioner.
At the hearing before the commissioner, petitioner called as witnesses a number of eminent Illinois lawyers. Their testimony shows beyond doubt that receiving money or property knowing the same to have been fraudulently obtained has not been denounced as crime by the laws of Illinois. England relied solely upon Kelly v. Griffin and insisted that the commissioner was bound by that decision. The latter accepted that view. Petitioner sought review and release on habeas corpus. District Judge Carpenter heard the application, found such receiving not a crime in Illinois and ordered petitioner’s discharge. On appeal England still insisted that Kelly v. Griffin required a contrary ruling. The Circuit Court of *307Appeals so held. One of the three judges dissented. It was in that court that England first suggested that criminality in Illinois is not essential.2 The court held against that contention, citing Collins v. Loisel, supra; Kelly v. Griffin, supra, and Wright v. Henkel, supra.
On the first argument here England adhered to its contention that Kelly v. Griffin ruled the case and also argued that criminality at the place of asylum is not essential. Unable to hold that the acts charged against petitioner constitute crime in Illinois, this court ordered reargument upon all questions and directed attention to a point not theretofore suggested: “The interpretation placed upon Article X of the treaty of 1842 by the Secretary of State of the United States, John C. Calhoun, shortly after the ratification of the Treaty (August 7, 1844, January 28, 1845, MSS. Inst. Gr. Br.), and also to the available diplomatic correspondence relating to Article X of the Treaty of 1842 and the Treaty of 1889.”
On .reargument petitioner brought forward all diplomatic correspondence available to him. It related, not only to the Treaties of 1842 and 1889, but also to subsequent treaties prior to the Dawes-Simon Treaty, 1932. The latter, designed to cover the entire field and to supersedé the treaties under consideration, was adopted after extended negotiation. It has been ratified by. the Senate and published here. But, while it was duly ratified in England on July 29, 1932, the Order in Council necessary there to make it effective has not yet been promulgated. Our Secretary of State holds that the treaty is not in force. It results, therefore, that the diplomatic correspondence leading up to its consummation was not available to petitioner. England fails to produce any part of it. She *308appears to attribute to Secretary Calhoun’s contentions cited in our order little, if any, greater weight than when they were put aside by Her Majesty’s Government nearly a century ago. It is to be presumed that, if correspondence leading up to the Dawes-Simon Treaty would support the idea that local criminality is not essential, England would produce it here.
On reargument England gave little, if -any, support to its claim that the “ receiving ” alleged against petitioner is crime in Illinois. And this court, impliedly at least, now holds that it is not, and to that extent overrules Kelly v. Griffin. England’s brief on reargument frankly concedes that it has been the policy of both parties to limit extradition to acts made criminal in the place of asylum. It safely may be said that she does not now seek the adoption of a contrary construction. But, taking a new hold, she insists that the requirement of criminality in both countries is here satisfied. In support of that position she says that petitioner cannot be convicted without proof of guilty knowledge; that the record shows he was a party to the fraud by which the money was obtained, and that, as obtaining by false pretenses and participation in that offense are both criminal in Illinois and extraditable, it must be held that extradition of the petitioner would be within the rule. The court does not take that point, and therefore it need not be considered here. It is mentioned for the purpose of disclosing the principal, if not indeed the sole, ground upon which extradition is now claimed.
III. But the court’s decision rests upon the ground that the United States impliedly agreed" to extradite for acts not made criminal by its laws or the laws of the state of. asylum. Admittedly England did not so agree. There is no warrant for the discrimination. The parties dealt as equals. All their extradition treaties disclose the intention that they shall stand on the same footing. The *309governing principle always has been reciprocity and equality.
The extradition provisions of the Jay Treaty of 1794, Art. 27, 8 Stat. 116,- 129, which continued in force 12 years, were:
“ It is further agreed, that His Majesty and the United States, on mutual requisitions . . . will deliver up to justice all persons, who, being charged with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other, provided that this shall only be done on such evidence of criminality, as, according to the laws of the place, where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the offence had there been committed. . . (Italics supplied.)
The Webster-Ashburton Treaty of 1842 (8 Stat. 572) in its preamble declares:
“And whereas it is found expedient, for the better administration of justice and the prevention of crime within the territories and jurisdiction of the two parties, respectively, that persons committing the crimes hereinafter enumerated, and being. fugitives from justice, should, under certain circumstances, be reciprocally delivered up.” (Italics supplied.)
It repeats the clause, originating in the Jay Treaty, providing for mutual requisitions. It includes five additional crimes, making seven in all. ' They are (Art. X, p. 576): murder, assault with intent to commit murder, piracy, arson, robbery, forgery, and the utterance of forged paper: It also repeats the proviso contained iii the Jay Treaty.
The declaration of purpose that fugitives be “ reciprocally delivered up ” and the provision for “ mutual requisitions ” mean that neither shall have advantage over the other, or be entitled to demand any extradition which under corresponding circumstances it would not be bound *310to grant, and directly negative the notion that the United States alone is bound to extradite for acts not criminal where the fugitive is found.
The Blaine-Pauncefote Convention of 1889 (26 Stat. 1508) added to the list in the Webster-Ashburton Treaty ten numbered offenses. They are:
“ 1. Manslaughter, when voluntary.
2. Counterfeiting or altering money; uttering or bringing into circulation counterfeit or altered money.
3. Embezzlement; larceny; receiving any money, valuable security, or other property, knowing the same to have been embezzled, stolen, or fraudulently obtained.
4. Fraud by bailee, banker, agent, factor, trustee, or director or member or officer of any company, made criminal by the laws of both countries.
5. Perjury, or subornation of perjury.
6. Rape; abduction; child-stealing; kidnapping.
7. Burglary; house-breaking or shop-breaking.
8. Piracy by the law of nations.
9. Revolt, or conspiracy to revolt by two or more persons on board a ship on the high seas, against the authority of the master; wrongfully sinking or destroying a vessel at sea, or attempting to do so; assaults on board a ship on the high seas, with intent to do grievous bodily harm.
10. Crimes and offences against the laws of both countries for the suppression of slavery and slave-trading.”
“ Extradition is also to take* place for participation in any of the crimes mentioned in this Convention or in the aforesaid Tenth Article, provided such participation be punishable by the laws of both countries.”
. The supplementary treaty of 1900 (32 Stat. 1864) added:
“11. Obtaining money, valuable .securities or other property by false pretenses.
12. Wilful and unlawful destruction or obstruction of railroads which endangers human life.
13. Procuring abortion.”
*311The supplementary treaty of 1905 (34 Stat. 2903) added:
“ 14. Bribery, defined to be the offering, giving or receiving of bribes made criminal by the laws of both countries.
15. Offences, if made criminal by the laws of both countries, against bankruptcy law.”
IV. The majority opinion notes the absence of any express requirement of criminality in both countries in item 3, which includes the acts alleged against petitioner; it emphasizes “ made criminal by the laws of both countries ” qualifying “ fraud ” in item 4, and from that it infers that, as to acts not similarly qualified, criminality in the asylum state here is not essential. That indeed is the ground upon which the court’s opinion rests.
But the indefinite terms by which the qualified offenses are designated fully account for the use of the words of limitation.. An examination of the list discloses that, where there is an express requirement of the criminality in both. countries, the purpose is to make certain that the acts are criminal, or to safeguard against demands for extradition for acts not criminal in the asylum country. Neither the Jay Treaty nor the Webster-Ashburton Treaty contains any provision expressly limiting extradition to acts made criminal in both countries. No such specification was necessary, as the transgressions listed are grave and well-known to have been denounced as crimes by the laws of both countries. Qualifying clauses are often used in treaties, statutes and agreements where the meaning would be the same if they were omitted.Article II of the Convention of 1889 furnishes an example. It declares that no fugitive shall be surrendered for any offense of a political character. As no crime; of that sort is listed, the provision is unnecessary. That clause, like the expression requiring criminality in both countries, is used, not to add or change meaning, but to *312emphasize and insure adherence to a well-known general principle always held applicable in the absence of any such specification. And Article III declares that a person surrendered cannot be tried in the demanding country for any crime committed prior to extradition other than that for which he was extradited. These clauses add nothing to the protection to which the fugitive has been held entitled in the absence of such stipulations. United States v. Rauscher, 119 U.S. 407, 419-422.
The history of item 4 negatives any inference such as that drawn by the majority. It was taken from, and, omitting “ public,” is precisely the same as, a clause in the British Extradition Act.3 As “public officer of any company ” is unknown to our law, the word “ public ” was dropped. In the British statute “ fraud ” is qualified by “ made criminal by any act for the time being in force.” A corresponding definition of “ fraud ” in the treaty was needed for clarification, and so the clause “ made criminal by the laws of both countries” was added. The doubts that reasonably might arise as to the meaning of the words used more than justified this qualification. Fraud may or may not constitute crime. When the word is used without-qualification it does not mean a criminal offense. The item extends to numerous classes of persons, even to members of a corporation. The word “ company ” is broad enough to include unincorporated associations as well as corporations of all sorts. The laws regulating bankers and others included are well known to lack uniformity and to be subject to frequent changes. Absence of some definitive expression would have left it uncertain whether the “ fraud ” listed was a civil or criminal wrong.
*313The court does not invoke support from the other items in which qualifying expressions are used. And these items show that the implication drawn by the opinion from the qualifying words in item 4 is groundless and that there is no basis for the application of the canon of construction, expressio unius, etc. Springer v. Philippine Islands, 277 U.S. 189, 206. Let them be examined.
Item 10 covers “ crimes or offences against the laws of both countries for the suppression of slavery and slave-trading.” If the phrase “ against the laws of both countries ” were omitted, the provision would have no meaning.
The unnumbered item in the Convention of 1889 covers “ participation ” in the commission of the crimes listed in that Convention and in the Treaty of 1842. The limitation to such as is made punishable by the laws of both countries was added to bring “ participation ” within the general principle. The parties did not intend that one accused of such receiving in England would be extraditable from a State where the act violates no law, while the person guilty of participation by aiding, inducing, pro1 curing or commanding him to commit the crime would be entitled there safely to remain.
The “ bribery ” covered by item 14 is limited to such as is defined by the laws of both countries. The correspondence leading to agreement upon that item shows that both parties intended as always to adhere to the principle of limiting extradition to acts made criminal by the laws of both countries. Ambassador Choate for the United States proposed a clause not expressly requiring criminality in both countries. The Marquess of Lansdowne for His Brittanic Majesty proposed the form adopted. Choate accepted and in a carefully prepared letter made it perfectly plain that, upon the principle declared in Wright v. Henkel, supra, the rule requiring criminality in both countries would apply even if not stated in the item.'
*314Offences against bankruptcy law, if made criminal by the laws of both countries, are covered by item 15.. Lack of uniformity in different parts of the Empire and, when no federal Act is in force, among the several States in this country, made the qualification of criminality in both countries necessary in the interest of certainty and to maintain the general rule that the asylum country denies extradition for acts not there deemed criminal. Moreover, the qualifying clause is necessary to .limit the provision to criminal acts, for without it “ offences . . . against the bankruptcy law ” would not necessarily imply criminality, but might include, for example, such transgressions as merely require denial of discharge.
It is said that, as some States denounce as criminal the receiving of money or property, knowing the same to have .been fraudulently obtained, while others do not, extradition is made to depend upon the place where the fugitive happens to be found. That suggestion gives no support to the decision. The negotiators well knew that criminal laws are not the same throughout the territories involved. England acted for all parts of the British Empire, the United States acted for itself and all the States. Undoubtedly, the criminal laws in England, Ireland, Scotland, Australia, Canada and other territories beyond the seas differ as widely as do those in Illinois, New York, Pennsylvania and other States., These treaties were made having regard to such lack of uniformity.
While the proviso in Article X relates to the quantum of evidence required to support the demand for extradition rather than to the obligations assumed or rights granted, it significantly coincides with the principle that extradition will not be granted by the asylum .country for acts not there deemed criminally wrong. Indeed, when taken in connection with the declaration of mutuality and reciprocity and the crimes named in the list, the proviso supports that principle. For obviously, as in substance *315suggested by England and held by the majority, the proviso means that extradition shall only be granted upon such evidence as according to the laws of the place where the fugitive is found “ would justify his apprehension and commitment for trial, if [the acts constituting] the crime or offence had there been committed.”
Y. The court’s decision is in direct conflict with the principle governing the interpretation of extradition treaties as propounded by the United States and as declared by this court in Wright v. Henkel, supra. The Solicitor General said (190 U.S. 55,56): “ That the offence must be one made criminal by the laws of both countries is a principle inherent in all extradition treaties. This is obvious because of the reciprocal nature of such engagements and the existence and similarity of crime in all places, whatever the differences as to definition and incidents of any particular crime.. .. Treaties plainly imply the doctrine, but do not ordinarily express it. Such is the force of the phrase ‘ mutual requisitions.’ Art. X, Webster-Ashburton Treaty.” And, applying the rule to the case then in hand, the brief added: “No phrase was needed in the treaty of 1889 to explain the crimes of murder, burglary, etc., nor to express the necessity of criminality in both countries. They are criminal in both countries without that. The difference as to clause 4 . . . respecting fraud by bailee is that as to that class of offences, not yet completely established as criminal, the two powers decline to engage respecting species still carrying a mere civil liability, and therefore the phrase ‘ made criminal by the laws of both countries ’ was used.”
And this court, speaking through its Chief Justice, said (pp. 57, 58) : “ Treaties must receive a fair interpretation, according to the intention of the contracting parties, and so as to carry out their manifest purpose. . . . The general principle of international law is that in all cases of extradition the act done on account of which extradition *316is demanded must be considered a crime by both parties, and as to the offence charged in this case [fraud covered by item 4] the treaty of 1889 embodies that principle in terms. The offence must be ‘ made criminal by the laws of both countries ’ . . .” P. 60Where there was reason to doubt whether the generic term embraced a particular variety, specific language was used. As for instance, . . . as to fraud and breach of trust, which had been brought within the grasp of criminal law in comparatively recent times.”
The principle governing interpretation of extradition treaties, so definitely explained by the Chief Justice in Wright v. Henkel, supra, has been uniformly followed here.
In Kelly v. Griffin, supra, perjury was one of the offenses for which Canada sought extradition of the fugitive from Illinois. That offense is. covered by item 5, which contains no express requirement of criminality in both countries. In that respect it is idéntical with item 3, which covers the receiving here involved. In that country, false testimony, whether material- or not, constitutes perjury. But materiality is essential in Illinois. This court found that the false testimony alleged to have been given in Canada was in fact material to the matter there in hand, quoted (p. 14) from Wright v. Henkel, supra: “ It is enough if the particular variety was criminal in both jurisdictions,” and held for extradition.
' In Bingham v. Bradley, supra, the offense was receiving money knowing the same to have -been stolen. That is covered by item 3, the construction of which is here involved. The court assumed as definitely established by prior decisions that criminality in both countries was essential. And, in concluding its decision holding the fugitive extraditable, it said'(p. 517): “And since the jurisdiction of the Commissioner is clear, and the evidence abundantly sufficient to furnish reasonable ground *317for the belief that appellant has committed within the Dominion of Canada a crime that is an offense under the laws of the Dominion, as well as under those of Illinois . . . and is covered by the terms of the treaty, and that he is a fugitive from justice, a fair observance of the obligations of the treaty requires that he be surrendered.”
In Collins v. Loisel, supra, the offense was obtaining property by false pretenses, covered by item 11, which contains no words requiring criminality in both countries. The court, directly alluding to the established rule, said (p. 311): “ It is true that an offense is extraditable only if the acts charged are criminal by the. laws of both countries.” And further .(p. 312): “ The law does not require that the name by which the crime is described in the two countries shall be the same; nor. that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions. This was held'with reference to different crimes involving false statements in Wright v. Henkel, 190 U.S. 40, 58; Kelly v. Griffin, 241 U.S. 6, 14; Benson v. McMahon, 127 U.S. 457, 465; and Greene v. United States, 154 Fed. 401. Compare Ex parte Piot, 15 Cox C.C. 208. The offense charged was, therefore, clearly extraditable.”
VI. Some of the reasons supporting the requirement of criminality in both countries as sound and expedient are stated in the report of a royal commission created in 1877 by Queen Victoria to inquire into and consider the workings and- effect of the laws and treaties relating to extradition.4 It says (§ VI): “ The crimes in respect of which *318nations should make common cause against criminals, and refuse them shelter, are those which it is the.common' interest of all to repress. There are offences against society-in respect of person and property, which, in all countries, there will always be found persons disposed to commit, and which can only be kept under by the strong arm of the law. It is these offences which it should- be the common purpose of all nations to endeavor to suppress by preventing those who have committed them from escaping from justice. But these offences are known to and dealt, with by the law of all civilised nations, though they may be differently dealt with both as to procedure and punishment. If some offence, unknown to the law of other nations—to what may figuratively be called the common law of nations—should be created by the law of a particular people, such an offence would not come within the category of crimes which it is the purpose of extradition to repress.
“ If it be asked how it is to be ascertained that the offence charged is known and recognized as an offence, the answer is that our own law will afford a sufficient test, being abundantly comprehensive as to offences against person and property.
“ Besides which, there is another reason for seeing that the charge in respect of'which extradition is asked for is an offence under our own law. It is and always must be necessary that a prima facie case shall be made out before a magistrate in order to support the application for extradition. But the English magistrate cannot be expected to know or interpret the foreign law. It is not désirable that he should be required to do more than to see that the facts proved constitute prima fade an offense which would have been within judicial cognizance if done in this country.” (Italics added.)
The principle that a nation will not grant extráditíon for acts not there made criminal'is laid down by authoritative writers on the law of extradition.
*319Biron and Chalmers, in their work on Extradition, p. 11, say: “As against the State where the fugitive is found his claim for protection is imperative, unless it can be proved that had his act taken place therein it would have involved the transgression of the laws of that State.” Sir Robert Phillimore, 1 International Law, 3rd ed., § 367, p. 521, says: “ There are two circumstances to be observed . . . in . . . cases of Extradition:—1. That the country demanding the criminal must be the country in which the crime is committed. 2. That the act done, on account of which his Extradition is demanded, must be considered as a crime by both States.” Pomeroy, International Law, ed. by Woolsey, § 198, p. 237, says: “ The act done must be such as is regarded as a crime by both states; this would cut off the case of all mere political offenders.” Moore, Extradition, § 96, p. 112, says: “While it is an accepted principle that the acts for which extradition is demanded must constitute an offense according to the laws of both countries, yet the laws which have actually been violated are those of the demanding government.”
VII. The opinion of the majority leans but lightly upon the construction put upon the treaty by the letters of Secretary Calhoun, brought into view by the order for reargument.
When the historical background and the precise point under consideration are held in mind, it is plain that his contentions have no bearing upon the question before us. For years prior to 1842 the right of owners to have fugitive slaves returned to them had become a matter of grave concern in southern States. Mr. Calhoun was a leader in the struggle for the vindication of that right and the maintehance of slavery. England, having earlier moved to suppress slave-trading, had then quite recently abolished slavery. Many of her people strongly favored abolition in the United States and everywhere. Many slaves had fled from this country to the West Indies and to Canada. Shortly before the case in which Secretary Cal*320houn wrote the letters in question, it was earnestly maintained by leaders in the House of Lords that slaves who for the purpose of securing their freedom killed their masters were guilty of no offense.5 Some of England’s most eminént statesmen and jurists opposed extradition of fugitive slaves for any transgression of our laws. For example, Aberdeen said: “ Not only was a fugitive slave guilty of no crime in endeavoring to escape from a state of bondage, but he was entitled to the sympathy and encouragement of a]l those who were animated by Christian feelings.” 70 Hansard, Third Series, p. 474.
The Secretary’s letters were written, not as rulings, but solely for the-purpose of furnishing the American minister arguments to be submitted to Lord Aberdeen as Foreign Secretary. The case was this: Slaves in Florida killed those who held them in service and fled to British West Indies. That state indicted them for murder. The United States, upon the indictment without more, demanded their extradition. The insular court held no ground for extras dition had been shown. It said: “An indictment per se can never be received as evidence. It is not enough for us to know that the American jury thought the parties guilty. We ought to know the grounds upon which they thought them guilty. What may constitute the crime of murder in Florida may be very far from doing so according to the British laws or even in the laws of the northern States of America.”
The Secretary, deeply moved by the implied suggestion that homicide committed by a slave in an effort to secure release from bondage was'justifiable or excusable, directed the American minister to present the case to the British *321Government. He maintained that, as in this country the Florida indictment was sufficient to justify the apprehension of the person accused and his commitment for trial, then by virtue of the proviso in Article X the asylum country was bound to hold that the indictment without more was sufficient to require extradition of the fugitive. As shown by our minister’s report, Lord Aberdeen merely held that under the Act of Parliament carrying the treaty into effect “ an indictment is; not of. itself sufficient ground for giving up a fugitive.” And he remarked that the same answer would have been given had the persons demanded been free. The question presented and decided was merely one .of evidence. The Secretary’s suggestions as to requirements of criminality in the asylum country were not germane, and therefore without weight as an official interpretation.
His suggestion, arguendo, that the treaty requires extradition for acts not made criminal in the place of asylum has never been adopted in England. That country has never claimed, and does not now maintain, that the interpretation so brought forward is binding on the United States. It has never been followed in practice. It is directly repugnant’ to the contentions of the United States, and the opinion of this court, in Wright v. Henkel, supra, and conflicts'with a long line of judgments following that decision. It is disregarded, indeed impliedly repudiated, in the official correspondence between Ambassador Choate and the Marquess of Lansdowne, above mentioned. It follows that Secretary Calhoun’s contentions, even if they were pertinent in the case where made, do not make in favor of extradition or lend’, any support to’ the court’s decisión.
I am of opinion:
The acts of receiving of which petitioner is accused in England are not made criminal in Illinois where he was found. That is now practically conceded by England. *322The court impliedly so holds and necessarily—even if sub silentio—overrules its decision on that point in Kelly v. Griffin, 241 U.S. 6, 15.
The contracting parties, upon adequate grounds and in accordance with uniform usage, have always adhered to the principle that extradition will not be granted for acts that are not deemed criminal in the place of asylum.
There is nothing in the treaties to support the majority opinion that, while England is not similarly bound, the United States agreed to deliver up fugitives for acts not criminal in the place of asylum.
The proviso in Article X prescribes the evidence that the demanding country is required to produce. It impliedly indicates that neither party agreed to extradite for acts not criminal under its laws.
The letters of Secretary Calhoun pointed to by our order for reargument do not support the majority opinion. They have no bearing upon the question presented.
The judgment of the Circuit Court of Appeals should be reversed.
I am authorized to say that Mr. Justice Brandéis and Mr. Justice Roberts join in this dissent.
It is true that Judge Betts, in 1847, in Re Metzger, 17 Fed. Cas. 232, construed a provision of the Freneh-American treaty that is not distinguishable from that now before us, not to require local criminality and held that unless otherwise specified, both parties to the treaty are bound to grant extradition for any listed offense-even if not criminal in the place of asylum. But the supreme court of New York, without passing upon that point, discharged Metzger. 1 Barb. *306248. It does not appear that he was ever retaken or surrendered for prosecution in France. England’s brief on reargument fails to cite the case. And see Moore, Extradition, § 344.
After the récord in this case was made up before the commissioner, the contention was made, but not passed upon, in the United States Court for the Eastern District of Pennsylvania in United States v. Fetters, 1 F.Supp. 637.
The first schedule of the British Extradition Act contains the following: “ Fraud by a bailee, banker, agent, factor; trustee or direotor, or member, or public officer of any company made criminal by any act for the time being in force.” The words italicized are omitted from .the treaty.
The occasion of these utterances was the mutiny, seizure of The Creole in American waters, the killing of those in charge of the ship and flight of 120 slaves to Nassau, where a number of them were taken into custody, partly for murder and partly for piracy. See 60 Hansard, Parliamentary Debates, 3rd Series, pp. 26, 318.