The rule that a writ of habeas corpus cannot be used as a writ
of error applies to extradition proceedings, and if the committing
magistrate had jurisdiction and there was competent evidence as to
commission of the crime, his decision may not be reviewed on habeas
corpus.
The accused in an extradition proceeding has not the right to
introduce evidence simply because it would be admissible on the
trial on plea of not guilty, nor is this right given by § 3 of the
Act of August 3, 1882.
Section 3 of the Act of August 3, 1882, does not make evidence
relevant, legal, or competent which would not theretofore have been
competent on a proceeding in extradition.
The proceeding in extradition before the examining magistrate is
not a trial, and the issue is not the actual guilt, but whether
there is a
prima facie case sufficient to hold the accused
for trial.
There is not, nor can there be, a uniform rule as to admission
of evidence for the accused in an extradition proceeding.
An examining magistrate may exclude evidence as to insanity of
the accused; such evidence is in the nature of defense, and should
be heard at the trial or on preliminary examination in the
jurisdiction of the crime.
Construing the supplementary treaty of extradition with Italy of
1884
Page 229 U. S. 448
in the light of the original treaty of 1882 and of § 5270,
Rev.Stat., it is not obligatory thereunder that the formal demand
should be proven in preliminary proceedings within forty days after
the arrest.
In this case, it appears that every requirement of the law,
whether treaty or statute, was substantially complied with.
The word "persons," etymologically considered, includes citizens
as well as those who are not, and while it is the practice of a
preponderant number of nations to refuse to deliver its own
citizens under a treaty of extradition silent on the point
specifically, held, in view of the diplomatic history of the United
States, there is no principle of international law by which
citizens are excepted from the operation of a treaty to surrender
persons where no such exception is made in the treaty itself. The
United States has always so construed its treaties.
The construction of a treaty by the political department of the
government, while not conclusive upon a court called upon to
construe such a treaty in a matter involving personal rights, is of
great weight.
While a violation of the extradition treaties with Italy of 1882
and 1884 by that power might render the treaty denounceable by the
United States, it does not render it void and of no effect, and so
held that the refusal of Italy to surrender its nationals
has not had the effect of abrogating the treaty, but of merely
placing the government in the position of having the right to
denounce it.
A government can waive violations of a treaty by the other
party, and it remains in force until formally abrogated.
Where, as in this case, the Executive has elected to waive any
right to free itself from the obligation to deliver its own
citizens under an existing extradition treaty, it is the duty of
the court to recognize the obligation to surrender a citizen
thereunder as one imposed by the treaty as the supreme law of the
land.
185 F. 880 affirmed.
This is an appeal from a judgment dismissing a petition for a
writ of habeas corpus and remanding the petitioner to custody under
a warrant for his extradition as a fugitive from the justice of the
Kingdom of Italy.
The proceedings for the extradition of the appellant were begun
upon a complaint duly made by the Italian vice-consul, charging him
with the commission of a murder in Italy. A warrant was duly issued
by the Hon. John A. Blair, one of the judges of New Jersey
Page 229 U. S. 449
qualified to sit as a committing magistrate in such a
proceeding, under § 5270, Rev.Stat. At the hearing, evidence was
produced which satisfied Judge Blair that the appellant was a
fugitive from justice, and that he was the person whose return to
Italy was desired, and that there was probable cause for holding
him for trial upon the charge of murder committed there. He
thereupon committed the appellant, to be held until surrendered
under a warrant to be issued by the Secretary of State. A
transcript of the evidence and of the findings was duly certified
as required by § 5270, Revised Statutes, and a warrant in due form
for his surrender was issued by the Secretary of State. Its
execution has, up to this time been prevented by the habeas corpus
proceedings in the court below and the pendency of this appeal.
The procedure in an extradition proceeding is that found in the
treaty under which the extradition is demanded and the legislation
by Congress in aid thereof. Thus, Article 1 of the treaty with
Italy of 1868 (Vol. 1, Treaties, Conventions, etc., of the United
States, 1910, p. 966), reads as follows:
"The government of the United States and the government of Italy
mutually agree to deliver up persons who, having been convicted of
or charged with the crimes specified in the following article,
committed within the jurisdiction of one of the contracting
parties, shall seek an asylum or be found within the territories of
the other; Provided, that this shall only be done upon 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 or her apprehension and commitment for trial, if the
crime had been there committed."
One of the crimes specified in the section following is
murder.
By Article V, it is provided that:
"When, however, the fugitive shall have been merely
Page 229 U. S. 450
charged with crime, a duly authenticated copy of the warrant for
his arrest in the country where the crime may have been committed,
or of the depositions upon which such warrant may have been issued
must accompany the requisition as aforesaid. The President of the
United States, or the proper executive authority in Italy, may then
issue a warrant for the apprehension of the fugitive in order that
he may be brought before the proper judicial authority for
examination. If it should then be decided that, according to law
and the evidence, the extradition is due pursuant to the treaty,
the fugitive may be given up according to the forms prescribed in
such cases."
That article was amended by the additional treaty of 1884 (Vol.
1, Treaties and Conventions, p. 985) by a clause added in these
words:
"Any competent judicial magistrate of either of the two
countries shall be authorized, after the exhibition of a
certificate signed by the Minister of Foreign Affairs [of Italy] or
the Secretary of State [of the United States], attesting that a
requisition has been made by the government of the other country to
secure the preliminary arrest of a person condemned for or charged
with having therein committed a crime for which, pursuant to this
convention, extradition may be granted, and on complaint duly made
under oath by a person cognizant of the fact, or by a diplomatic or
consular officer of the demanding government, being duly authorized
by the latter, and attesting that the aforesaid crime was thus
perpetrated, to issue a warrant for the arrest of the person thus
inculpated, to the end that he or she may be brought before the
said magistrate, so that the evidence of his or her criminality may
be heard and considered, and the person thus accused and imprisoned
shall from time to time be remanded to prison until a formal demand
for his or her extradition shall be made and supported by evidence,
as above provided; if, however, the requisition, together with the
documents
Page 229 U. S. 451
above provided for, shall not be made, as required, by the
diplomatic representative of the demanding government, or, in his
absence, by a consular officer thereof, within forty days from the
date of the arrest of the accused, the prisoner shall be set at
liberty. "
Page 229 U. S. 456
MR. JUSTICE LURTON, after making the foregoing statement,
delivered the opinion of the Court.
A writ of habeas corpus cannot be used as a writ of error. If
Judge Blair had jurisdiction of the person of the accused and of
the subject matter, and had before him competent legal evidence of
the commission of this crime with which the appellant was charged
in the complaint, which, according to the law of New Jersey, would
justify his apprehension and commitment for trial if the crime had
been committed in that state, his decision may not be reviewed on
habeas corpus.
Terlinden v. Ames, 184 U.
S. 270,
184 U. S. 278;
Bryant v. United States, 167 U. S. 104;
McNamara v. Henkel, 226 U. S. 520.
By a stipulation filed in the case for the purpose of this
review, it is agreed that the evidence presented to Judge Blair of
the murder with which the accused was charged, and of his
criminality, was sufficient to meet the treaty and statutory
requirements of the case, and the errors assigned in this Court,
questioning its legality and competency, as well as those as to the
alleged absence of a warrant or deposition upon which such warrant
was issued, have been withdrawn. But neither this stipulation nor
the withdrawal of the assignments of error referred to is to affect
any of the matters raised by other objections pointed out in other
assignments.
The objections which are relied upon for the purpose of
Page 229 U. S. 457
defeating extradition may be conveniently summarized and
considered under four heads:
1. That evidence of the insanity of the accused was offered and
excluded.
2. That the evidence of a formal demand for the extradition of
the accused was not filed until more than forty days after the
arrest.
3. That appellant is a citizen of the United States, and that
the treaty, in providing for the extradition of "persons" accused
of crime, does not include persons who are citizens or subjects of
the nation upon whom the demand is made.
4. That if the word "person," as used in the treaty, includes
citizens of the asylum country, the treaty, insofar as it covers
that subject, has been abrogated by the conduct of Italy in
refusing to deliver up its own citizens upon the demand of the
United States, and by the enactment of a municipal law, since the
treaty, forbidding the extradition of citizens.
We will consider these objections in their order:
1. Was evidence of insanity improperly excluded?
It must be conceded that impressive evidence of the insanity of
the accused was offered by him and excluded. It is now said that
this ruling was erroneous. But if so, this is not a writ of error,
and mere errors in the rejection of evidence are not subject to
review by a writ of habeas corpus.
Benson v. McMahon,
127 U. S. 457,
127 U. S. 461;
Terlinden v. Ames, 184 U. S. 270,
184 U. S. 278;
McNamara v. Henkel, 226 U. S. 520. In
the
McNamara case, certain depositions had been received
for the prosecution over objection. This Court said that there was
legal evidence on which to base the action of the commissioner in
holding the accused for extradition, irrespective of the
depositions objected to.
But it is said that the Act of 1882, 22 Stat.
Page 229 U. S. 458
215, § 3, c. 378, requires that the defendant's witnesses shall
be heard. That section is most inartificially drawn. It reads as
follows:
"That, on the hearing of any case under a claim of extradition
by any foreign government, upon affidavit being filed by the person
charged, setting forth that there are witnesses whose evidence is
material to his defense, that he cannot safely go to trial without
them, what he expects to prove by each of them, and that he is not
possessed of sufficient means, and is actually unable to pay the
fees of such witnesses, the judge or commissioner before whom such
claim for extradition is heard may order that such witnesses be
subpoenaed, and in such cases the costs incurred by the process,
and the fees of witnesses, shall be paid in the same manner that
similar fees are paid in the case of witnesses subpoenaed in behalf
of the United States."
The contention is that the effect of this provision is to give
the accused the right to introduce any evidence which would be
admissible upon a trial under an issue of not guilty. To this we
cannot agree. The prime purpose of the section is to afford the
defendant the means for obtaining the testimony of witnesses, and
to provide for their fees. In no sense does the statute make
relevant, legal, or competent evidence which would not have been
competent before the statute upon such a hearing. True, the statute
speaks of evidence "material for his defense, without which he
cannot go safely to trial," but we cannot discover that Congress
intended to depart from the provisions of the first article of the
treaty, which requires that a surrender shall be made
"upon 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 or her apprehension and commitment if the crime
had been there committed."
The provision is common to many treaties, and Congress, by §
5270, Revised Statutes, has, in aid
Page 229 U. S. 459
of such treaties, prescribed the procedure upon such a hearing
in these words:
"Whenever there is a treaty or convention for extradition
between the government of the United States and any foreign
government, any Justice of the Supreme Court, circuit judge,
district judge, commissioner, authorized so to do by any of the
courts of the United States, or judge of a court of record of
general jurisdiction of any state, may, upon complaint made under
oath, charging any person found within the limits of any state,
district, or territory with having committed within the
jurisdiction of any such foreign government any of the crimes
provided for by such treaty or convention, issue his warrant for
the apprehension of the person so charged, that he may be brought
before such justice, judge, or commissioner, to the end that the
evidence of criminality may be heard and considered. If, on such
hearing, he deems the evidence sufficient to sustain the charge
under the provisions of the proper treaty or convention, he shall
certify the same, together with a copy of all the testimony taken
before him, to the Secretary of State, that a warrant may issue
upon the requisition of the proper authorities of such foreign
government, for the surrender of such person, according to the
stipulations of the treaty or convention, and he shall issue his
warrant for the commitment of the person so charged to the proper
jail, there to remain until such surrender shall be made."
Judge Blair made the certificate in form and substance in
conformity with the statute, and upon the receipt of that, a
warrant was duly issued for the surrender of the appellant to the
agents of the Italian government.
In
Benson v. McMahon, supra, this Court said of a
similar provision in the treaty with Mexico, in connection with
Rev.Stat. § 5270:
"Taking this provision of the treaty and that of the Revised
Statutes above recited, we are of opinion that
Page 229 U. S. 460
the proceeding before the commissioner is not to be regarded as
in the nature of a final trial by which the prisoner could be
convicted or acquitted of the crime charged against him, but rather
of the character of those preliminary examinations which take place
every day in this country before an examining or committing
magistrate for the purpose of determining whether a case is made
out which will justify the holding of the accused, either by
imprisonment or under bail, to ultimately answer to an indictment
or other proceeding, in which he shall be finally tried upon the
charge made against him. The language of the treaty which we have
cited, above quoted, explicitly provides that"
"the commission of the crime shall be so established as that the
laws of the country in which the fugitive or the person so accused
shall be found would justify his or her apprehension and commitment
for trial if the crime had been there committed."
This prescribes the proceedings in these preliminary
examinations as accurately as language can well do it. The act of
Congress conferring jurisdiction upon the commissioner or other
examining officer, it may be noted in this connection, says that,
if he deems the evidence sufficient to sustain the charge under the
provisions of the treaty, he shall certify the same, together with
a copy of all the testimony, and issue his warrant for the
commitment of the person so charged.
"We are not sitting in this court on the trial of the prisoner,
with power to pronounce him guilty and punish him or declare him
innocent and acquit him. We are now engaged simply in an inquiry as
to whether, under the construction of the act of Congress and the
treaty entered into between this country and Mexico, there was
legal evidence before the commissioner to justify him in exercising
his power to commit the person accused to custody to await the
requisition of the Mexican government."
To repeat, the Act of 1882 does not prescribe the extent
Page 229 U. S. 461
to which evidence thus obtained shall be admitted, and we quite
agree with the view expressed by Judge Brown in
In re
Wadge, 15 F. 864, who said (p. 866):
"The phrase in § 3 of the Act of August 3, 1882, 'that he [the
accused] cannot safely go to trial without them' (witnesses) cannot
be construed as giving a right to a full trial in violation of
treaty stipulations; but it must be confined to such a preliminary
hearing only as was already allowable under the existing practice,
viz., such as is appropriate to a hearing having reference
only to a commitment for future trial."
There is not and cannot well be any uniform rule determining how
far an examining magistrate should hear the witnesses produced by
an accused person. The proceeding is not a trial. The issue is
confined to the single question of whether the evidence for the
state makes a
prima facie case of guilt sufficient to make
it proper to hold the party for trial. Such committing trials, if
they may be called trials in any legal sense, are usually regulated
by local statutes. Neither can the courts be expected to bring
about uniformity of practice as to the right of such an accused
person to have his witnesses examined, since, if they are heard,
that is the end of the matter, as the ruling cannot be
reversed.
In this case, the magistrate refused to hear evidence of
insanity. It is claimed that, because he excluded such evidence,
the judgment committing appellant for extradition is to be set
aside as a nullity, and the accused set at liberty. At most, the
exclusion was error, not reversible by habeas corpus. To have
witnesses produced to contradict the testimony for the prosecution
is obviously a very different thing from hearing witnesses for the
purpose of explaining matters referred to by the witnesses for the
government. This distinction was taken by Mr. Justice Washington in
the case of
United States v. White, 2 Wash. C.C. 29, when
he said:
Page 229 U. S. 462
"Generally speaking, the defendant's witnesses are not examined
upon an application to bind him over to answer upon a criminal
charge. The defendant's witnesses are never sent to the grand jury,
except where the attorney for the prosecution consents thereto.
But, in this incipient stage of the prosecution, the judge may
examine witnesses who were present at the time when the offense is
said to have been committed, to explain what is said by the
witnesses for the prosecution, and the cross-examination of the
witnesses for the prosecution is certainly improper."
We therefore conclude that the examining magistrate did not
exceed his authority in excluding evidence of insanity. If the
evidence was only for the purpose of showing present insanity by
reason of which the accused was not capable of defending the charge
of crime, it is an objection which should be taken before or at the
time of his trial for the crime and heard by the court having
jurisdiction of the crime. If it was offered to show insanity at
the time of the commission of the crime, it was obviously a defense
which should be heard at the time of his trial, or by a preliminary
hearing in the jurisdiction of the crime, if so provided for by its
laws. By the law of New Jersey, insanity as an excuse for crime is
a defense, and the burden of making it out is upon the defendant.
Graves v. State, 45 N.J.L. 203;
State v. Maioni,
78 N.J.L. 339, 341;
State v. Peacock, 50 N.J.L. 34, 36. A
defendant has no general right to have evidence exonerating him go
before a grand jury, and unless the prosecution consents, such
witnesses may be excluded. 1 Chitty, Crim.Law, 318;
United
States v. White, supra; 1 U. S.
Shaffer, 1 Dall. 236;
United States v. Palmer, 2
Cranch C.C. 11;
United States v. Terry, 39 F. 355,
362.
2. It was next objected that no formal demand for the
extradition of the appellant was made within forty days after his
arrest, and that he was therefore entitled to be
Page 229 U. S. 463
set at liberty. The objection is founded upon the supplemental
convention with Italy of 1884 heretofore set out.
A "certificate," such as was indicated by that convention, was
undoubtedly "exhibited" to the committing magistrate, and was the
basis of his action. The other parts of the provision are not
clear. What is referred to by the phrase, "the requisition,
together with the documents above provided," etc., which is
required to be made within forty days, or the person set at
liberty? The "certificate" attesting "that a requisition has been
made," etc., was "exhibited" to Judge Blair, and we fail to find in
this clause of the treaty any requirement that the subsequent
"formal demand" for the extradition shall be filed with magistrate
within forty days after the arrest of the accused, or at any other
time. The whole of the convention should be read together and in
connection with Rev.Stat. § 5270, which is applicable to all
treaties. Under § 5270, any one of the judicial officers named
therein may, upon complaint, charging one of the crimes named in
the treaty, issue his warrant of arrest, and hear the evidence of
criminality. This done, his duty is, if he deems the evidence
sufficient to hold the accused for extradition, to commit him to
jail and to certify his conclusion, with the evidence, to the
Secretary of State, who may then, "upon the requisition of the
proper authorities of such foreign government, issue his warrant
for the surrender of the accused." Rev.Stat., §§ 5272, 5273. Of
course, the effect of the supplementary treaty of 1884, being later
than the statutory requirements above referred to, is to supersede
the statute insofar as there is a necessary conflict in the
carrying out of the extradition obligation between this country and
Italy. But, as observed in
Griffin v. Shine, 187 U.
S. 181,
187 U. S.
191,
"Congress has a perfect right to provide for the extradition of
criminals in its own way, with or without a treaty to that effect,
and to declare
Page 229 U. S. 464
that foreign criminals shall be surrendered upon such proofs of
criminality as it may judge sufficient.
Castro v.
DeUriarte, 16 F. 93. This appears to have been the object of §
5270, which is applicable to all foreign governments with which we
have treaties of extradition."
This section, by its very terms, applies "in all cases in which
there now exists or hereafter may exist, any treaty or convention
for extradition." Had there been no law of Congress upon the
subject, the method of procedure prescribed by the supplementary
treaty of 1884 would necessarily have been the proper one, and the
committing magistrate could have proceeded only according to the
treaty, for that would have been the only law of the land
applicable to the case and the only source of his authority.
It was therefore competent for Judge Blair to act upon the
complaint made before him independently of any preliminary mandate
or certificate, such as was in fact issued and "exhibited" to him
in this case, being plainly authorized so to do by the terms of §
5270. The personal rights of the accused are saved by the
provisions of the same section, since he could only have been
surrendered upon the warrant of the Secretary of State, based upon
the evidence presented upon the hearing, and the conclusion of the
sufficiency of the evidence of criminality certified to the
Secretary of State, and upon a formal requisition for extradition.
Castro v. DeUriarte, 16 F. 93, 97:
Griffin v. Shine,
supra.
Construed in the light of the original and supplementary
conventions with Italy, and of § 5270, Rev.Stat., we do not find
that it was obligatory that the "formal demand" referred to in the
1884 clause should be proven in the preliminary proceeding within
forty days after the arrest. That is a demand made upon the
executive authority of the United States by the executive authority
of Italy. Its presentation was not necessary to give the examining
magistrate jurisdiction. Such a formal demand
Page 229 U. S. 465
was in fact made on July 28, 1910, less than forty days after
the arrest. That, together with the certificate of the magistrate
and the evidence submitted to him, was the authority of law under
which the Secretary of State issued his warrant of extradition.
Every requirement of the law, whether it appears in the treaty or
in the Act of Congress, was substantially complied with. This was
the construction placed upon the treaty by Mr. Secretary Knox in
answer to the same objection made to him before he issued his
warrant, and also of Judge Rellstab, who dismissed the petition for
a writ of habeas corpus, and from whose decree this appeal
comes.
3. By Article I of the extradition treaty with Italy, the two
governments mutually agree to deliver up all persons who, having
been convicted of or charged with any of the crimes specified in
the following article, committed within the jurisdiction of one of
the contracting parties, shall seek an asylum in the other, etc. It
is claimed by counsel for the appellant that the word "persons," as
used in this article, does not include persons who are citizens of
the asylum country.
That the word "persons" etymologically includes citizens as well
as those who are not can hardly be debatable. The treaty contains
no reservation of citizens of the country of asylum. The contention
is that an express exclusion of citizens or subjects is not
necessary, as, by implication from accepted principles of public
law, persons who are citizens of the asylum country are excluded
from extradition convention unless expressly included. This was the
position taken by the Foreign Minister of Italy in a correspondence
in 1890 with the Secretary of the United States, concerning a
demand made by the United States for the extradition of Bevivini
and Villella, two subjects of Italy whose extradition was sought,
that they might be tried for a crime committed in this country.
Their extradition was refused
Page 229 U. S. 466
by Italy on account of their Italian nationality. The Foreign
Minister of Italy advanced in favor of the Italian position these
grounds: (a) that the Italian Penal Code of 1890, in express terms
provided that, "the extradition of a citizen is not permitted;" (b)
that a crime committed by an Italian subject in a foreign country
was punishable in Italy, and therefore there was no ground for
saying that, unless extradited the crime would go unpunished, and
(c) that it has become a recognized principle of public
international law that one nation will not deliver its own citizens
or subjects upon the demand of another, to be tried for a crime
committed in the territory of the latter, unless it has entered
into a convention expressly so contracting, and that the United
States had itself recognized the principle in many treaties by
inserting a clause exempting citizens from extradition. (United
States Foreign Relations 1890, p. 555.) Mr. Blaine, then Secretary
of State of the United States, protested against the position of
the Italian government, and maintained the view that citizens were
included among the persons subject to extradition unless expressly
excluded. His defense of the position is full and remarkably able.
It is to be found in United States Foreign Relations for 1890, pp.
557, 566.
We shall pass by the effect of the Penal Code in preventing the
authorities of Italy from carrying out its international
engagements to surrender citizens, for that has no bearing upon the
question now under consideration, which is whether, under accepted
principles of international law, citizens are to be regarded as not
embraced within an extradition treaty unless expressly included.
That it has come to be the practice with a preponderant number of
nations to refuse to deliver its citizens is true, but this
exception is convincingly shown by Mr. Blaine in his reply to the
Foreign Minister of Italy, and by the thorough consideration of the
whole subject by Mr. John
Page 229 U. S. 467
Basset Moore, in his treatise on extradition, ch. V., pp. 152,
193, to be of modern origin. The beginning of the exemption is
traced to the practice between France and the Low Countries in the
18th century. Owing to the existence in the municipal law of many
nations of provisions prohibiting the extradition of citizens, the
United States has in several of its extradition treaties clauses
exempting citizens from their obligation. The treaties in force in
1910 may therefore be divided into two classes: those which
expressly exempt citizens, and those which do not. Those which do
contain the limitation are by far the larger number. Among the
treaties which provide for the extradition of "persons," without
limitation or qualification, are the following:
With Great Britain, November 10, 1842, extended July 12, 1889,
United States Treaties 1910, pp. 650 and 740.
With France, November 9, 1843,
supra, p. 526.
With Italy, February 8, 1868,
supra, p. 961.
With Venezuela, August 27, 1860,
supra, p. 1845.
With Ecuador, June 28, 1872,
supra, p. 436.
With Dominican Republic, February 8, 1867,
supra, p.
403.
The treaty with Japan of April 29, 1886,
supra, p.
1025, contains a qualification in these words:
"Art. VII. Neither of the contracting parties shall be bound to
deliver up its own citizens or subjects under the stipulations of
this convention, but they shall have the power to deliver them up,
if, in their discretion, it be deemed proper to do so."
The conclusion we reach is that there is no principle of
international law by which citizens are excepted out of an
agreement to surrender "persons" where no such exception is made in
the treaty itself. Upon the contrary, the word "persons" includes
all persons when not qualified as it is in some of the treaties
between this and other nations. That this country has made such an
exception in some of
Page 229 U. S. 468
its conventions and not in others demonstrates that the
contracting parties were fully aware of the consequences unless
there was a clause qualifying the word "persons." This
interpretation has been consistently upheld by the United States,
and enforced under the several treaties which do not exempt
citizens. That Italy has not conformed to this view, and the effect
of this attitude, will be considered later. But that the United
States has always construed its obligation as embracing its
citizens is illustrated by the action of the executive branch of
the government in this very instance. A construction of a treaty by
the political department of the government, while not conclusive
upon a court called upon to construe such a treaty in a matter
involving personal rights, is nevertheless of much weight.
The subject is summed up by Mr. John Bassett Moore in his work
on Extradition, Vol. 1, p. 170 § 138, where he says:
"'Persons' includes citizens. In respect to the persons to be
surrendered, the extradition treaties of the United States all
employ the general term 'persons,' or 'all persons.' Hence, where
no express exception is made, the treaties warrant no distinctions
as to nationality. Writing on the general subject of the
extradition treaties of the United States and the practice
thereunder, Mr. Seward said:"
"In some of the United States' extradition treaties, it is
stipulated that the citizens or subjects of the parties shall not
be surrendered. Where there is no express reservation of the kind,
there would not, it is presumed, be any hesitation in giving up a
citizen of the United States to be tried abroad."
"Such has been the uniform and unquestioned practice under the
treaty with Great Britain of 1842, in which the term 'all persons'
is used."
The effect of yielding to the interpretation urged by Italy
would have brought about most serious consequences as to other
treaties then in force. One of these was the extradition treaty
with Great Britain, made as far back as
Page 229 U. S. 469
1843. Inasmuch as, under the law of that country, as of this,
crimes committed by their citizens within the jurisdiction of
another country were punishable only where the crime was committed,
it was important that the Italian interpretation should not be
accepted.
4. We come now to the contention that, by the refusal of Italy
to deliver up fugitives of Italian nationality, the treaty has
thereby ceased to be of obligation on the United States. The
attitude of Italy is indicated by its Penal Code of 1900, which
forbids the extradition of citizens, and by the denial in two or
more instances to recognize this obligation of the treaty as
extending to its citizens.
During a preliminary correspondence between the Department of
State and the Italian Charge d'Affaires in reference to the
provisional arrest and detention of the appellant under Articles I
and II of the treaty, as extended by Article II of the additional
convention of 1884, Mr. Knox, the then Secretary of State,
inquired
"whether or not the Department is to understand that, by
initiating extradition proceedings for the surrender of this
American citizen accused of committing murder in Italy, your
government wishes to be understood as surrendering its view
heretofore entertained, and as being now willing to adopt as to
cases which may hereafter arise between the two governments, the
view that the extradition treaties of 1868, 1869, and 1884, between
the United States and Italy, require the surrender by each
government of any and all persons, irrespective of the nationality,
who, having been convicted for or charged with commission of any of
the crimes specified in the treaty within the jurisdiction of one
of the contracting parties, shall seek an asylum or be found within
the territory of the other, and further and specifically to inquire
whether the government of Italy now proposes, as to all cases
arising in the future, to deliver to the government of the United
States, under and in accordance with
Page 229 U. S. 470
the treaty provisions, those Italian subjects who, committing
crimes in the United States, take refuge in Italy."
The reply to this was as follows:
"July 1, 1910"
"MR. SECRETARY OF STATE: By telegram of June 24 last, your
Excellency inquired whether, in instituting extradition proceedings
in the case of Porter Charlton, who confessed having committed
murder at Moltrasio, the King's government intended to depart from
the rule, heretofore observed, not to surrender its own subjects,
and whether it was to be inferred that Italians guilty of an
offense committed on American territory, who should take refuge in
Italy, should hereafter be delivered without fail to the American
government."
"I now have the honor to inform your Excellency that the King's
government cannot depart from the principle established by our law,
that our nationals cannot be surrendered to foreign powers.
Furthermore, this principle does not conflict with the provisions
of the extradition convention. Indeed, it seems logical that, so
far as parity in the matter of extraditing their respective
citizens or subjects is concerned, each party should, in the
absence of specific provisions in the convention itself, be guided
by the spirit of its own legislation."
"The Italian law does not consent to the extradition of
nationals, but the Italian courts are competent to try, on the
request of a foreign government, their nationals who may have
committed offenses on that government's territory."
"Contrariwise, the laws of the United States, by not permitting
local tribunals to try American citizens for offenses committed
abroad, seem to admit of their being extradited. Otherwise an
offender would, under the aegis of the law itself, escape the
punishment he deserves."
"I have the honor to inform your Excellency that the requisite
extradition papers in the case of Porter Charlton
Page 229 U. S. 471
will be forwarded to me without delay, and in the meanwhile I
beg you kindly to cause the prisoner to be held in provisional
detention."
On July 28, 1910, the following communication was addressed to
the Secretary of State, and was received on July 30, 1910:
"MR. SECRETARY OF STATE: Referring to previous communications,
and in accordance with the provisions of Article V of the
extradition convention of March 23, 1868, I have the honor to lay
before your Excellency a formal request for the extradition of
Porter Charlton, who has confessed the crime of murder committed on
the person of his own wife at Moltrasio, Como, which crime is
specified in Article II, Section 1, of the said convention."
"Your Excellency has already been so good as to forward to me,
in note No. 864 of June 28 last, the preliminary certificate of
arrest provided by Article II of the additional convention of June
11, 1884, with a view to the provisional arrest of the above-named
accused."
"In support of this request, I have the honor to transmit
herewith to your Excellency the record of proceedings conducted by
the Court of Como in the case of the aforesaid murder. The papers
are regularly visaed by the Embassy of the United States at
Rome."
"Awaiting the federal 'warrant' and the kind return of the
enclosed papers for submission to the competent court, I avail
myself of this opportunity to renew to your Excellency, together
with my thanks in advance, the assurance of my highest
consideration."
To this the Secretary of State, after the conclusion of the
hearing before Judge Blair and the receipt by the Department of his
judgment and the evidence produced before him, replied as
follows:
"Washington, December 10, 1901"
"EXCELLENCY: In compliance with the request made by your Embassy
in its note of July 28 last, and in pursuance
Page 229 U. S. 472
of existing treaty stipulations between the United States and
Italy, I have the honor to enclose a warrant of surrender in the
case of Porter Charlton, charged with murder, committed within the
jurisdiction of the Kingdom of Italy, and examined and committed
for surrender by the Honorable John A. Blair, judge of the Court of
Common Pleas in and for the County of Hudson, in the State of New
Jersey."
"Accept, Excellency, the renewed assurance of my highest
consideration."
The attitude of the Italian government, indicated by proffering
this request for extradition "in accordance with Article V of the
Treaty of 1868" is, as shown by the communication of July 1st, set
out above, substantially this:
First. That crimes committed by an American in a foreign country
were not justiciable in the United States, and must therefore go
unpunished unless the accused be delivered to the country wherein
the crime was committed for trial.
Second. Such was not the case with Italy, since, under the laws
of Italy, crimes committed by its subjects in foreign lands were
justiciable in Italy.
Third. That, as a consequence of the difference in the municipal
law,
"it was logical that, so far as parity in the matter of
extraditing their respective citizens or subjects is concerned,
each party should, in the absence of specific provisions in the
convention itself, be guided by the spirit of its own
legislation."
This adherence to a view of the obligation of the treaty as not
requiring one country to surrender its nationals while it did the
other presented a situation in which the United States might do
either of two things, namely, abandon its own interpretation of the
word "persons" as including citizens, or adhere to its own
interpretation and surrender the appellant, although the obligation
had,
Page 229 U. S. 473
as to nationals, ceased to be reciprocal. The United States
could not yield its own interpretation of the treaty, since that
would have had the most serious consequence on five other treaties
in which the word "persons" had been used in its ordinary meaning,
as including all persons, and therefore not exempting citizens. If
the attitude of Italy was, as contended, a violation of the
obligation of the treaty, which, in international law, would have
justified the United States in denouncing the treaty as no longer
obligatory, it did not automatically have that effect. If the
United States elected not to declare its abrogation, or come to a
rupture, the treaty would remain in force. It was only voidable,
not void, and if the United States should prefer, it might waive
any breach which, in its judgment, had occurred, and conform to its
own obligation as if there had been no such breach. 1 Kent's Comm.,
p. 175.
Upon this subject, Vattel, Nations, page *452, says:
"When the treaty of peace is violated by one of the contracting
parties, the other has the option of either declaring the treaty
null and void or allowing it still to subsist, for a contract which
contains reciprocal engagements cannot be binding on him with
respect to the party who, on his side, pays no regard to the same
contract. But, if he chooses not to come to a rupture, the treaty
remains valid and obligatory."
Grotius says (Book 3, c. 20, par. 38):
"It is honourable and laudable to maintain a peace, even after
it has been violated by the other party, as Scipio did after the
many treacherous acts of the Carthaginians. For no one can release
himself from an obligation by acting contrary to his engagements.
And though it may be further said that the peace is broken by such
an act, yet the breach ought to be taken in favour of the innocent
party if he thinks proper to avail himself of it. "
Page 229 U. S. 474
In Moore's International Law Digest, Vol. 5, page 366, it is
said:
"A treaty is primarily a compact between independent nations,
and depends for the enforcement of its provisions on the honor and
the interests of the governments which are parties to it. If these
fail, its infraction becomes the subject of international
reclamation and negotiation, which may lead to war to enforce them.
With this, judicial tribunals have nothing to do."
In the case of
In re Thomas, 12 Blatchf. 370, Mr.
Justice Blatchford (then district judge) said:
"Indeed, it is difficult to see how such a treaty as that
between Bavaria and the United States can be abrogated by the
action of Bavaria alone, without the consent of the United States.
Where a treaty is violated by one of the contracting parties, it
rests alone with the injured party to pronounce it broken, the
treaty being, in such case, not absolutely void, but voidable at
the election of the injured party, who may waive or remit the
infraction committed, or may demand a just satisfaction, the treaty
remaining obligatory if he chooses not to come to a rupture."
In the case of
Terlinden v. Ames, 184 U.
S. 270,
184 U. S. 285,
the question was presented whether a treaty was a legal obligation
if the state with whom it was made was without power to carry out
its obligation. This Court quoted with approval the language of
Justice Blatchford, set out above, and said:
"And, without considering whether extinguished treaties can be
renewed by tacit consent under our Constitution, we think that, on
the question, whether this treaty has ever been terminated,
governmental action in respect to it must be regarded as of
controlling importance."
That the political branch of the government recognizes the
treaty obligation as still existing is evidenced by its action is
this case. In the memorandum giving the reasons
Page 229 U. S. 475
of the Department of State for determining to surrender the
appellant, after stating the difference between the two governments
as to the interpretation of this clause of the treaty, Mr.
Secretary Knox said:
"The question is now for the first time presented as to whether
or not the United States is under obligation under treaty to
surrender to Italy for trial and punishment citizens of the United
States fugitive from the justice of Italy, notwithstanding the
interpretation placed upon the treaty by Italy with reference to
Italian subjects. In this connection, it should be observed that
the United States, although, as stated above, consistently
contending that the Italian interpretation was not the proper one,
has not treated the Italian practice as a breach of the treaty
obligation necessarily requiring abrogation, has not abrogated the
treaty, or taken any step looking thereto, and has, on the
contrary, constantly regarded the treaty as in full force and
effect, and has answered the obligations imposed thereby, and has
invoked the rights therein granted. It should, moreover, be
observed that, even though the action of the Italian government be
regarded as a breach of the treaty, the treaty is binding until
abrogated, and therefore, the treaty not having been abrogated, its
provisions are operative against us."
"The question would therefore appear to reduce itself to one of
interpretation of the meaning of the treaty, the government of the
United States being now for the first time called upon to declare
whether it regards the treaty as obliging it to surrender its
citizens to Italy notwithstanding Italy has not, and insists it
cannot, surrender its citizens to us. It should be observed, in the
first place, that we have always insisted not only with reference
to the Italian extradition treaty, but with reference to the other
extradition treaties similarly phrased, that the word 'persons'
includes citizens. We are therefore committed to that
interpretation. The fact that
Page 229 U. S. 476
we have, for reasons already given, ceased generally to make
requisition upon the government of Italy for the surrender of
Italian subjects under the treaty would not require of necessity
that we should, as a matter of logic or law, regard ourselves as
free from the obligation of surrendering our citizens, we laboring
under no such legal inhibition regarding surrender as operates
against the government of Italy. Therefore, since extradition
treaties need not be reciprocal, even in the matter of the
surrendering of citizens, it would seem entirely sound to consider
ourselves as bound to surrender our citizens to Italy even though
Italy should not, by reason of the provisions of her municipal law,
be able to surrender its citizens to us."
The Executive Department having thus elected to waive any right
to free itself from the obligation to deliver up its own citizens,
it is the plain duty of this Court to recognize the obligation to
surrender the appellant as one imposed by the treaty at the supreme
law of the land, and as affording authority for the warrant of
extradition.
Judgment affirmed.