The Southwestern Historical Quarterly, Volume 45, July 1941 - April, 1942 Page: 226
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Southwestern Historical Quarterly
of fugitives accused of murder and forgery, widespread nego-
tiation of extradition treaties between the United States and
foreign countries did not get well under way until after the
conclusion of the Webster-Ashburton Treaty in 1842. Both the
Jay and Webster-Ashburton treaties provided for extradition of
"all persons" accused of the crimes which were enumerated.
The same is true of the Italian treaty of 1858. The greatest
number of the treaties provide, however, that neither party is
bound to extradite its own nationals. A few make extradition
of nationals discretionary with the country of refuge. Since
Italy has, in spite of the treaty of 1858, steadfastly refused to
extradite Italian subpects who have committed crimes in the
United States, there is no European country, other than Great
Britain, from which nationals of the country of refuge can be
extradited to the United States. Furthermore, American courts
have held that Americans who are found in the United States
and have committed crimes in countries with which we have
treaties providing that neither party is bound to extradite its
own nationals cannot be extradited. Consequently, an American
who commits a crime in France, for example, cannot be returned
to that country to stand trial. Unfortunately, he cannot be
tried in the United States because our criminal law, with a few
unimportant exceptions, has no extraterritorial operation. The
same does not hold true, however, for the trial at home of
nationals of continental countries or of those countries whose
penal systems are based on the continental law. A Frenchman,
for example, who commits a crime in the United States and
flees to France can be tried in that country since French crim-
inal law does control Frenchmen abroad when the act is also
criminal where committed.
Without disregarding the reasons behind it Rafuse is, in the
main, critical of the policy of nonsurrender of nationals. It is
quite true that in most instances trial at the place where the
crime was committed could be conducted more efficiently than
in the country of which the accused is a citizen or subject. But
countries whose criminal laws apply to nationals abroad refuse
to surrender because they feel an obligation to regulate the
behavior of those belonging to their national groups, irrespec-
tive of where the behavior takes place. It is not so much the
fear of miscarriage of justice because of prejudice at the place
of commission which induces refusal to surrender as it is a sense
of responsibility for those who belong to the national family.
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 45, July 1941 - April, 1942, periodical, 1942; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth146053/m1/240/: accessed April 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.