On complaint of the British Consul, a United States Commissioner for the Northern District of Illinois issued his warrant to hold petitioner in custody for extradition to England, under article 10 of the Webster-Ashburton Treaty of 1842 (1 Malloy's Treaties, pp. 650, 655, 8 Stat. 572, 576), as supplemented by the Blaine-Pauncefote Convention of 1889 (1 Malloy's Treaties, p. 740, 26 Stat. 1508) and certified the evidence in the proceeding before him to the Secretary of State under the provisions of section 651, title 18 USCA. The application for extradition was based on a charge that petitioner, at London, had 'received from Broadstreet Press Limited' certain sums of money, 'knowing the same to have been fraudulently obtained.' Upon application by the petitioner for writ of habeas corpus, and certiorari in its aid, the District Court for Northern Illinois ordered him released from custody on the ground that the act charged was not embraced within the applicable treaties because not an offense under the laws of Illinois, the state in which the was apprehended and held. On appeal the Court of Appeals for the Seventh Circuit reversed the judgment of the District Court, 61 F.(2d) 626, on the ground that the offense was a crime in Illinois, as had been declared in Kelly v. Griffin, 241 U.S. 6, 36 S.Ct. 487, 60 L.Ed. 861. This Court granted certiorari, 289 U.S. 713, 53 S.Ct. 523, 790, 77 L.Ed. 1467, on a petition which presented as ground for the reversal of the judgment below that under the Treaty of 1842 and Convention of 1889, extradition may not be had unless the offense charged is a crime under the law of the state where the fugitive is found, and that 'receiving money, knowing the same to have been fraudulently obtained,' the crime with which the petitioner was charged, is not an offense under the laws of Illinois.
In support of this contention, petitioner asserts that it is a general principle of international law that an offense for which extradition may be had must be a crime both in the demanding country and in the place where the fugitive is found, and that the applicable treaty provisions, interpreted in the light of that principle, exclude any right of either country to demand the extradition of a fugitive unless the offense with which he is charged is a crime in the particular place of asylum. See Wright v. Henkel, 190 U.S. 40, 61, 23 S.Ct. 781, 47 L.Ed. 948. But the principles of international law recognize no right to extradition apart from treaty. While a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he had fled, and it has been said that it is under a moral duty to do so (see 1 Moore, Extradition, § 14; Clarke, Extradition (4th Ed.) p. 14), the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty. See United States v. Rauscher, 119 U.S. 407, 411, 412, 7 S.Ct. 234, 30 L.Ed. 425; Holmes v. Jennison, 14 Pet. 540, 569, 582, 614, 10 L.Ed. 579, 618; United States v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932; Case of Jose Ferreira dos Santos, 2 Brock. 493, Fed. Cas. No. 4,016; Commonwealth ex rel. Short v. Deacon, 10 Serg. & R. (Pa.) 125; 1 Moore, Extradition, §§ 9-13. Cf. Matter of Washburn, 4 Johns. Ch. (N.Y.) 106, 107, 8 Am.Dec. 548; 1 Kent.Com. 37. To determine the nature and extent of the right we must look to the treaty which created it. The question presented here, therefore, is one of the construction of the provisions of the applicable treaties in accordance with the principles governing the interpretation of international agreement.