Where the petition for a writ of habeas corpus, and the warrant
under which the accused is arrested both refer to a treaty and the
determination of the court below depends at least in part on the
meaning of certain provisions of that treaty, the construction of
the treaty is drawn in question, and this Court has jurisdiction of
a direct appeal from the Circuit Court, even though it is also
necessary to construe the acts of Congress passed to carry the
treaty provisions into effect.
Where an extradition treaty provides that the surrender shall
only 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 apprehension and commitment for trial if the
crime or offense had there been committed,"
one whose surrender is demanded from this government and who is
arrested in one of the states cannot be delivered up except upon
such evidence of criminality as under the laws of that state would
justify his apprehension and commitment for trial if the crime had
there been committed.
A United States commissioner appointed to execute the
extradition laws has no power to issue a warrant on a requisition
made under existing treaties with Great Britain, under which a
marshal of a district in another state can arrest the accused and
deliver him in another state before the commissioner issuing the
warrant, without a previous examination being had before some judge
or magistrate authorized by the acts of Congress to act in
extradition matters, and sitting in the state where he is found and
arrested.
The facts are stated in the opinion of the Court.
Page 194 U. S. 210
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is a case of extradition. It presents the question whether
a commissioner specially appointed by a court of the United States
under and in execution of statutes enacted to give effect to treaty
stipulations for the apprehension and delivery of offenders can
issue a warrant for the arrest of an alleged criminal which may be
executed by a marshal of the United States, within his district, in
a state other than the one in which the commissioner has his
office. It also presents
Page 194 U. S. 211
the question whether a person arrested under such a warrant can
be lawfully taken beyond the state in which he was found, and
delivered in another state before the officer who issued the
warrant of arrest, without any preliminary examination in the
former state as to the criminality of the charge against him.
By the tenth article of the treaty between the United States and
Great Britain, concluded August 9, 1842, it was provided that, upon
mutual requisitions by them, or their ministers, officers, or
authorities, respectively made, they shall
"deliver up to justice all persons who, being charged with the
crime of murder, or assault with intent to commit murder, or
piracy, or arson, or robbery, or forgery, or the utterance of
forged paper, committed within the jurisdiction of either, shall
seek an asylum, or shall be found, within the territories of the
other."
But, by the same article, it was 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 apprehension and
commitment for trial if the crime or offense had there been
committed, and the respective judges and other magistrates of the
two governments shall have power, jurisdiction, and authority, upon
complaint made under oath, to issue a warrant for the apprehension
of the fugitive or person so charged, that he may be brought before
such judges or other magistrates, respectively, to the end that the
evidence of criminality may be heard and considered, and if, on
such hearing, the evidence be deemed sufficient to sustain the
charge, it shall be the duty of the examining judge or magistrate
to certify the same to the proper executive authority, that a
warrant may issue for the surrender of such fugitive. The expense
of such apprehension and delivery shall be borne and defrayed by
the party who makes the requisition, and receives the
fugitive."
8 Stat. 572, 576.
A supplementary treaty between the same countries, concluded
July 12, 1889, provided for the extradition for certain crimes not
specified in the tenth article of the treaty of 1842,
Page 194 U. S. 212
and "punishable by the laws of both countries," and also
declared that the provisions of the above article
"shall apply to persons convicted of the crimes therein
respectively named and specified, whose sentence therefor shall not
have been executed. In case of a fugitive criminal alleged to have
been convicted of the crime of which his surrender is asked, a copy
of the record of the conviction, and of the sentence of the court
before which such conviction took place, duly authenticated, shall
be produced, together with the evidence proving that the prisoner
is the person to whom such sentence refers."
26 Stat. 1508, 1510.
By an Act of Congress approved August 12, 1848, c. 167, and
entitled
"An Act for Giving Effect to Certain Treaty Stipulations Between
This and Foreign governments for the Apprehension and Delivering Up
of Certain Offenders,"
it is provided (§ 1):
"That in all cases in which there now exists, or hereafter may
exist, any treaty or convention for extradition between the
government of the United States and any foreign government, it
shall and may be lawful for any of the justices of the Supreme
Court or judges of the several district courts of the United States
-- and the judges of the several state courts, and the
commissioners
authorized so to do by any of the courts of
the United States, are hereby severally vested with power,
jurisdiction, and authority, upon complaint made under oath or
affirmation, 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
enumerated or provided for by any such treaty or convention -- to
issue his warrant for the apprehension of the person so charged,
that he may be brought before such judge or commissioner, to the
end that the evidence of criminality may be heard and considered,
and if, on such hearing, the evidence be deemed sufficient by him
to sustain the charge under the provisions of the proper treaty or
convention, it shall be his duty to certify the same, together with
a copy of all the testimony taken before him, to the Secretary of
State,
Page 194 U. S. 213
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 said treaty or convention,
and it shall be the duty of the said judge or commissioner to issue
his warrant for the commitment of the person so charged to the
proper gaol, there to remain until such surrender shall be
made."
"SEC. 6. That it shall be lawful for the courts of the United
States, or any of them,
to authorize any person or persons to
act as a commissioner or commissioners, under the provisions
of this act, and the doings of such person or persons so
authorized, in pursuance of any of the provisions aforesaid, shall
be good and available to all intents and purposes whatever."
9 Stat. 302.
And by section 5270 of the Revised Statutes -- omitting
therefrom the proviso added thereto by the Act of June 6, 1900, c.
793, 31 Stat. 656, which applies only to crimes committed in a
foreign country or territory "occupied by or under the control of
the United States," it is provided:
"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
Page 194 U. S. 214
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."
See also § 5273.
In the Sundry Civil Appropriation Act of August 18, 1894, will
be found the following clause:
"
Provided, That it shall be the duty of the marshal,
his deputy, or other officer, who may arrest a person charged with
any crime or offense, to take the defendant before the nearest
circuit court commissioner or the nearest judicial officer having
jurisdiction under existing laws for a hearing, commitment, or
taking bail for trial, and the officer or magistrate issuing the
warrant shall attach thereto a certified copy of the complaint, and
upon the arrest of the accused, the return of the warrant, with a
copy of the complaint attached, shall confer jurisdiction upon such
officer as fully as if the complaint had originally been made
before him, and no mileage shall be allowed any officer violating
the provisions hereof."
28 Stat. 372, 416.
Under these treaty and statutory provisions, complaint on oath
was made before John A. Shields -- a commissioner appointed by the
District Court of the United States for the Southern District of
New York
to execute the above Act of August 12, 1848, and the
several acts amendatory thereof -- that one James Lynchehaun
was convicted, in a court of Great Britain, of the crime of having
feloniously and unlawfully wounded one Agnes McDonnell, with intent
thereby, feloniously and with malice aforethought, to kill and
murder said McDonnell; that the accused was sentenced to be kept in
penal servitude for his natural life; that in execution of such
sentence he was committed to a convict prison in Queens County,
Ireland, had escaped therefrom, and was at large, and that he was a
fugitive from the justice of the Kingdom of Great Britain and
Ireland, and within the Territory of the United States. It is
admitted that the present appellee is the person referred to in the
warrant as James Lynchehaun.
Page 194 U. S. 215
Upon that complaint, Commissioner Shields, in his capacity as a
commissioner appointed by a court of the United States, to execute
the laws relating to the extradition of fugitives from the justice
of foreign countries, issued, on the sixth day of June, 1903, in
the name of the President, a warrant addressed "to any marshal of
the United States, to the deputies of any such marshal, or any or
either of them," commanding that the accused be forthwith taken and
brought before him
at his office, in the City of New York,
in order that the evidence as to his criminality be heard and
considered, and if deemed sufficient to sustain the charge, that
the same might be certified, together with a copy of all the
proceedings, to the Secretary of State, in order that a warrant
might be issued for the surrender of the accused, pursuant to the
above treaty.
This warrant having been placed for execution in the hands of
the appellant, as Marshal of the United States for the District of
Indiana, he arrested the accused in that state. Thereupon the
latter filed his application for a writ of habeas corpus in the
circuit court of the United States for that district, alleging that
his detention was in violation of the Constitution, treaties, and
laws of the United States. The writ was issued, and the marshal
justified his action under the warrant issued by Commissioner
Shields. Referring to the warrant and averring its due service upon
the accused, the marshal's return stated that the warrant was
"regular, legal, valid, and sufficient in law in all respects to
legally justify and warrant the arrest and detention of petitioner,
and, under the laws of the United States, it was and is the duty of
this defendant to arrest and detain said petitioner,
and
deliver him as commanded by said writ for hearing before
Commissioner Shields, in New York City; that said writ runs
for service in the State of Indiana, although issued by a
commissioner of the United States for the Southern District of New
York, by reason of its being a writ in extradition; that defendant
is informed and believes, and therefore states the fact to be, that
petitioner is the identical person commanded to be arrested by said
warrant as James
Page 194 U. S. 216
Lynchehaun; . . . and that it is by virtue and authority solely
of said warrant that defendant holds and detains petitioner; that
defendant proposes, if not otherwise ordered by this honorable
court, to obey, as United States Marshal for the District of
Indiana, the command of said warrant as set out therein believing
it to be his duty as said officer so to do."
The accused excepted to the marshal's return for insufficiency
in law, and the case was heard upon that exception. The court held
the return to be insufficient, and, the marshal having indicated
his purpose not to amend it, the accused was discharged upon the
ground that the commissioner in New York was without power to issue
a warrant under which the Marshal for the District of Indiana could
legally arrest the accused and deliver him before the court of that
commissioner in New York without a previous examination before some
proper officer in the state where he was found.
In re
Walshe, 125 F. 572.
The appellee contends that this case only involves a
construction of certain acts of Congress, and that therefore this
Court is without jurisdiction to review the judgment on direct
appeal from the circuit court.
Spreckels Sugar Refining Co. v.
McClain, 192 U. S. 397,
192 U. S. 407.
We do not concur in this view. The treaties of 1842 and 1889 are at
the basis of this litigation, and no effective decision can be made
of the controlling questions arising upon the appeal without an
examination of those treaties, and a determination of the meaning
and scope of some of their provisions. A case may be brought
directly from a circuit court to this Court if the construction of
a treaty is therein drawn in question. 26 Stat. 826, c. 517, § 5.
The petition for the writ of habeas corpus and the warrant under
which the accused was arrested both refer to the treaty of 1842,
and the court below properly, we think, proceeded on the ground
that the determination of the questions involved in the case
depended in part at least, on the meaning of certain provisions of
that treaty. The construction of the treaties was nonetheless drawn
in question because it became necessary
Page 194 U. S. 217
or appropriate for the court below also to construe the acts of
Congress passed to carry their provisions into effect.
We now go to the merits of the case. It has been seen that the
treaty of 1842 expressly provides, among other things, that a
person charged with the crime of murder, committed within the
jurisdiction of either country, and found within the territories of
the other, shall be delivered up by the latter country, and that
the provision shall apply in the case of one convicted of such a
crime, but whose sentence has not been executed. But both countries
stipulated in the treaty of 1842 that the alleged criminal shall be
arrested and delivered up
only upon such evidence of
criminality as, according to the laws of the place where the
fugitive person so charged
is found, would justify his
apprehension and commitment for trial if the crime or offense had
been there committed. As applied to the present case, that
stipulation means that the accused, Walshe, could not be extradited
under the treaties in question except upon such evidence of
criminality as, under the laws of the State of Indiana -- the place
in which he was found -- would justify his apprehension and
commitment for trial if the crime alleged had been there committed.
The words in the tenth article of the treaty of 1842,
"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 crime or offense had there been
committed,"
and the words "punishable by the laws of both countries" in the
treaty of 1889, standing alone, might be construed as referring to
this country as a unit, as it exists under the Constitution of the
United States. But as there are no common law crimes of the United
States, and as the crime of murder, as such, is not known to the
national government except in places over which it may exercise
exclusive jurisdiction, the better construction of the treaty is
that the required evidence as to the criminality of the charge
against the accused must be such as would authorize his
apprehension and commitment for trial in that state of the Union in
which he is arrested.
Page 194 U. S. 218
It was substantially so held in
Wright v. Henkel,
190 U. S. 40,
190 U. S. 58,
190 U. S. 61,
which was a case of extradition under the same treaties as those
here involved. In that case, the alleged fugitive criminal from the
justice of Great Britain was found in New York. The Court said:
"As the State of New York was the place where the accused was
found, and, in legal effect, the asylum to which he had fled, is
the language of the treaty 'made criminal by the laws of both
countries' to be interpreted as limiting its scope to acts of
Congress, and eliminating the operation of the laws of the states?
That view would largely defeat the object of our extradition
treaties by ignoring the fact that, for nearly all crimes and
misdemeanors, the laws of the states, and not the enactments of
Congress, must be looked to for the definition of the offense.
There are no common law crimes of the United States, and, indeed,
in most of the states, the criminal law has been recast in
statutes, the common law being resorted to in aid of definition.
Benson v. McMahon, 127 U. S. 457."
Again:
"When, by the law of Great Britain and by the law of the state
in which the fugitive is found, the fraudulent acts charged to have
been committed are made criminal, the case comes fairly within the
treaty, which otherwise would manifestly be inadequate to
accomplish its purposes. And we cannot doubt that, if the United
States were seeking to have a person indicted for this same offense
under the laws of New York extradited from Great Britain, the
tribunals of Great Britain would not decline to find the offense
charged to be within the treaty because the law violated was a
statute of one of the states, and not an act of Congress."
The above provision in the treaty of 1842 has not been modified
or superseded by any of the acts passed by Congress to carry its
provisions into effect. In our opinion, the evidence of the
criminality of the charge must be heard and considered by some
judge or magistrate authorized by the acts of Congress to act in
extradition matters and sitting in the state where the accused was
found and arrested. Under any other interpretation of the statute,
Commissioner Shields, proceeding
Page 194 U. S. 219
under the treaty, could by his warrant cause a person charged
with one of the extraditable crimes, and found in one of the
Pacific states, to be brought before him at his office in the City
of New York, in order that he might hear and consider the evidence
of the criminality of the accused. But as such a harsh construction
is not demanded by the words of the treaties or of the statutes, we
shall not assume that any such result was contemplated by Congress.
While the view just stated has some support in those parts of the
act of 1848 and section 5270 of the Revised Statutes which provide
for the accused being brought before the justice, judge, or
commissioner who issued the warrant of arrest, it is not consistent
with the above proviso in the Sundry Civil Act of August 18, 1894,
the language of which is broad enough to embrace the case of the
arrest by a marshal, within the district for which he was
appointed, of a person charged with an extraditable crime committed
in the territories of Great Britain, and found in this country. By
that proviso, it is made the duty of a marshal arresting a person
charged with any crime or offense to take him before the nearest
circuit court commissioner or the nearest judicial officer, having
jurisdiction, for a hearing, commitment, or taking bail for trial
in cases of extradition. The commissioner or judicial officer here
referred to is necessarily one acting as such within the state in
which the accused was arrested and found. So that, assuming that it
was competent for the Marshal for the District of Indiana to
execute Commissioner Shields' warrant within his district, as we
think it was, his duty was to take the accused before the nearest
magistrate in that district who was authorized by the treaties and
by the above acts of Congress to hear and consider the evidence of
criminality. If such magistrate found that the evidence sustained
the charge, then, under section 5270 of the Revised Statutes, it
would be his duty to issue his warrant for the commitment of the
accused to the proper jail, there to remain until he was
surrendered under the direction of the national government in
accordance with the treaty. Instead of pursuing that course, the
marshal
Page 194 U. S. 220
arrested Walshe, and in his return to the writ of habeas corpus
distinctly avowed his purpose, unless restrained by the court, to
take the prisoner at once from the state in which he was found, and
deliver him in New York, before Commissioner Shields, without a
hearing first had in the State of Indiana before some authorized
officer or magistrate there sitting, as to the evidence of the
criminality of the accused. The circuit court adjudged that the
marshal had no authority to hold the accused in custody for any
such purpose, and, the marshal declining to amend his return, and
not avowing his intention to take him before a judicial officer or
magistrate in Indiana for purposes of hearing the evidence of
criminality, the prisoner was properly discharged from the custody
of that officer.
For the reasons above stated the judgment is
Affirmed.