The greatly preponderant weight of opinion is that, in the absence of authority expressly given him by treaty or statute, the President has not the constitutional right to extradite to a foreign country a fugitive to this country.20 The single instance in which the President has extradited without such authority expressly conferred upon him is the surrender to Spain by Lincoln in 1864 of one Arguelles.

Whether or not Congress has the power by statute to authorize the President to extradite fugitives to countries with which the United States has no subsisting treaty upon the subject is not certain, as there has been no instance of the exercise of such power. Reasoning upon general principles, however, there would seem to be no constitutional objection to such legislation.21 for example, in 1850 Great Britain ceded to the United States a reef in Lake Erie upon condition that the United States would engage to erect thereupon a lighthouse and maintain it, and agree to erect no fortifications thereupon. This engagement the President made without consulting the Senate, and the cession was made, and later, Congress having appropriated the funds, a lighthouse was constructed.

20.Cf. Moore, Extradition. 21 Cf. Butler, § 435.