Although the surrender of a person demanded under an extradition
treaty has been made, it is the duty of the courts here to
determine the legality of the subsequent imprisonment which depends
upon the treaties in force between this and the surrendering
governments.
Page 205 U. S. 310
While the treaty of 1842 with Great Britain had no express
limitation of the right of the demanding country to try a person
only for the crime for which he was extradited, such a limitation
is found in the manifest scope and object of the treaty itself, and
it has been so construed by this Court.
United States v.
Rauscher, 119 U. S. 407.
A person extradited under the treaty of 1899 with Great Britain
cannot be punished for an offense other than that for which his
extradition has been demanded even though, prior to his
extradition, he had been convicted and sentenced therefor.
Sections 5272, 5275, Revised Statutes, clearly manifest the
intention and the will of the political department of the
government that a person extradited shall be tried only for the
crime charged in the warrant of extradition, and shall be allowed a
reasonable time to depart out of the United States before he can be
arrested and detained for any other offense.
Repeals by implication are never favored, and a later treaty
will not be regarded as repealing, by implication, an earlier
statute unless the two are so absolutely incompatible that the
statute cannot be enforced without antagonizing the treaty, and so
held that the treaty with Great Britain of 1899 did not
repeal §§ 5272, 5275, Rev.Stat.
While the escape of criminals is to be deprecated, treaties of
extradition should be construed in accordance with the highest good
faith, and a treaty should not be so construed as to obtain the
extradition of a person for one offense and punish him for another,
especially when the latter offense is one for which the
surrendering government has refused to surrender him on the ground
that it was not covered by the treaty.
The respondent sued out a writ of habeas corpus from the Circuit
Court of the United States for the Southern District of New York,
directed to the agent and warden of the state prison at Sing Sing,
in the State of New York, where he was confined, and pursuant to
the terms of the writ the respondent was brought before that court
in New York city, and after a hearing the court ordered his
discharge. The agent and warden has appealed to this Court from
that order.
The facts appearing on the hearing before the circuit court on
the return to the writ were these:
The respondent was an examiner of silks in the appraisers'
department in the port of New York, and in the spring of 1903, in
the Circuit Court of the United States for the Southern District of
New York, a grand jury found two indictments against him, one being
found against him jointly with two others for conspiring to defraud
the United States in violation
Page 205 U. S. 311
of § 5440 of the Revised Statutes, and the other was against him
alone for knowingly attempting to enter certain Japanese silks upon
payment of less than the amount of legal duty thereon, in violation
of § 5444, Revised Statutes.
In January, 1904, he, in company with one of the others named in
the indictment (the other having fled the jurisdiction), was tried
in the Circuit Court of the United States for the Southern District
of New York upon the indictment charging them with conspiracy. He
was convicted and sentenced to imprisonment in the state prison at
Sing Sing, New York for two years.
He appealed to the Circuit Court of Appeals for the Second
Circuit, where the conviction was affirmed, and thereafter an
application was made in his behalf to this Court for certiorari to
review the judgment of conviction, which application was denied in
January, 1906.
After his trial and conviction, and pending a review of the
judgment, the respondent had been enlarged on bail, and after the
judgment was affirmed in the circuit court of appeals and a
certiorari from this Court had been denied, he was, on the
nineteenth of January, 1906, duly called in the circuit court to
submit himself to sentence, but did not appear, and his default was
entered.
A few days subsequently, he was found in the Dominion of Canada.
This government then instituted extradition proceedings in Montreal
to procure his rendition upon the judgment of conviction of
conspiracy to defraud the United States, and claimed it was an
extraditable crime under the fourth subdivision of Article 1 of the
treaty or "extradition convention" of 1889, between the United
States and Great Britain. That subdivision reads as follows:
"4. Fraud by bailee, banker, agent, factor, trustee, or director
or member or officer of any company made criminal by the laws of
both countries."
The respondent was held for extradition by the Canadian
Page 205 U. S. 312
commissioner, but, on writ of habeas corpus, the Court of King's
Bench held that the conspiracy to defraud the United States, as set
forth in the indictment upon which respondent was convicted, was
not such a fraud as was provided for in the subdivision of the
article of the treaty above referred to. Extradition was therefore
refused.
Thereupon the United States secured the rearrest of the
respondent on another complaint, charging him with the offenses for
which he had been indicted under § 5444 of the Revised Statutes,
and for which he had not been tried in New York. The Canadian
commissioner held the respondent upon that complaint, and ordered
his extradition, and, upon a writ of habeas corpus, the Court of
King's Bench affirmed that order, and the respondent was then
surrendered to the proper agent of the United States, who at once
took him to the State of New York, and, having arrived within the
Southern District of that state, the marshal of that district,
proceeding under the warrant for imprisonment issued by the circuit
court upon the conviction of the respondent on the conspiracy
indictment, took possession of him and delivered him into the
custody of the warden of Sing Sing Prison, there to be imprisoned
for two years according to the sentence imposed upon him under the
conviction as stated.
The respondent then obtained this writ upon a petition setting
forth the above facts, and claimed that his imprisonment was in
violation of the third and seventh articles of the extradition
treaty between the United States and Great Britain. 26 Stat. 1508.
The warden of the prison made return August 7, 1906, that he held
the respondent by virtue of the final judgment of the Circuit Court
of the United States for the Southern District of New York,
rendered on the ninth of March, 1904, as above set forth.
Page 205 U. S. 316
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
It does not appear that any movement has been made or notice
given by this government to try the respondent on the indictment
for the crime for which he has been extradited, but his
imprisonment in Sing Sing Prison is upon a conviction of a crime
for which the Canadian court had refused to extradite him, and is
entirely different from the one for which he was extradited. In
other words, he has been extradited for one offense and is now
imprisoned for another, which the Canadian court held was not,
within the treaty, an extraditable offense.
Whether the crime came within the provision of the treaty was a
matter for the decision of the Dominion authorities, and such
decision was final by the express terms of the treaty itself.
Article 2, Convention of July 12, 1889, 26 Stat. 1508; United
States Treaties in Force April 28, 1904, 350-351.
We can readily conceive that, if the Dominion authorities, after
the Court of King's Bench had decided that the crime of which
respondent had been convicted, and for which extradition had been
asked, was not extraditable, and the request for extradition had
therefore been refused, had been informed on the subsequent
proceeding for extradition on the other indictment that it was not
the intention of this government to try respondent on that
indictment, but that, having secured his extradition on that
charge, it was the intention
Page 205 U. S. 317
of this government to imprison him on the judgment of
conviction, they would have said that such imprisonment would not
be according to the terms of the treaty, and they would have
refused to direct his extradition for the purpose stated.
Although the surrender has been made, it is still our duty to
determine the legality of the succeeding imprisonment, which
depends upon the treaty between this government and Great Britain,
known as the Ashburton Treaty of 1842, 8 Stat. 572-576, Art. 10,
and the subsequent one, called a convention, concluded in 1889 and
above referred to.
The treaty of 1842 had no express limitation of the right of the
demanding country to try a person only for the crime for which he
was extradited, and yet this Court held that there was such a
limitation, and that it was to be found in the "manifest scope and
object of the treaty itself;" that there is "no reason to doubt
that the fair purpose of the treaty is that the person shall be
delivered up to be tried for that offense, and for no other."
United States v. Rauscher, 119 U.
S. 407,
119 U. S.
422-423.
Again, at the time of the decision of the
Rauscher
case, there were in existence §§ 5272 and 5275, Rev.Stat., both of
which are cited and commented upon in that case, and in the course
of the opinion, of Mr. Justice Miller, at
119 U. S. 423,
he said:
"The obvious meaning of these two statutes, which have reference
to all treaties of extradition made by the United States, is that
the party shall not be delivered up by this government to be tried
for any other offense than that charged in the extradition
proceedings, and that, when brought into this country upon similar
proceedings, he shall not be arrested or tried for any other
offense than that with which he was charged in those proceedings
until he shall have had a reasonable time to return unmolested to
the country from which he was brought. This is undoubtedly a
congressional construction of the purpose and meaning of
extradition treaties
Page 205 U. S. 318
such as the one we have under consideration, and, whether it is
or not, it is conclusive upon the judiciary of the right conferred
upon persons brought from a foreign country into this under such
proceedings."
"That right, as we understand it, is that he shall be tried only
for the offense with which he is charged in the extradition
proceedings and for which he was delivered up, and that, if not
tried for that, or after trial and acquittal, he shall have a
reasonable time to leave the country before he is arrested upon the
charge of any other crime committed previous to his
extradition."
Mr. Justice Gray, page
119 U. S. 433,
in his concurring opinion, places that concurrence upon the single
ground that these sections clearly manifest the will of the
political department of the government in the form of an express
law that the person should be tried only for the crime charged in
the warrant of extradition, and he should be allowed a reasonable
time to depart out of the United States before he could be arrested
or detained for any other offense. Both grounds were concurred in
by a majority of the whole Court.
If the question now before us had arisen under the treaty of
1842 and the sections of the Revised Statutes above mentioned, we
think the proper construction of the treaty and the sections would
have applied to the facts of this case and rendered the
imprisonment of the respondent illegal. The manifest scope and
object of the treaty itself, even without those sections of the
Revised Statutes, would limit the imprisonment as well as the trial
to the crime for which extradition had been demanded and
granted.
It is true that the tenth article of the treaty contained no
specific provision for delivering up a convicted criminal, but, if
otherwise delivered, he could not have been punished upon a former
conviction for another and different offense.
The claim is now made on the part of the government that "the
manifest scope and object of the treaty" of 1842 are altered and
enlarged by the treaty or convention of July 12,
Page 205 U. S. 319
1889. The second, third, sixth, and seventh articles of that
convention are set forth in the margin.
*
It will be perceived that the second article provides that no
person surrendered shall be triable or tried,
or be
punished, for any political crime or offense, while article
three provides that no person surrendered shall be triable or be
tried (leaving out the words "or be punished") for any crime or
offense committed prior to the extradition other than the offense
for
Page 205 U. S. 320
which he was surrendered, until he shall have had an opportunity
for returning to the country from which he was surrendered. Hence,
it is urged that, as punishment for another offense of which the
person had been convicted is not in so many words expressly
prohibited in and by article three, a requisition may be obtained
for one crime under that article, and, when possession of the
person is thus obtained, he may be punished for another and totally
different crime of which he had been convicted before
extradition.
We do not concur in this view. Although, if the words "or be
punished" were contained in the third article, the question in this
case could not, of course, arise, yet we are satisfied that the
whole treaty, taken in connection with that of 1842, fairly
construed, does not permit of the imprisonment of an extradited
person under the facts in this case.
The mere failure to use these words in the third article does
not so far change and alter "the manifest scope and object" of the
two treaties as to render this imprisonment legal. The general
scope of the two treaties makes manifest an intention to prevent a
state from obtaining jurisdiction of an individual whose
extradition is sought on one ground and for one expressed purpose,
and then, having obtained possession of his person, to use it for
another and different purpose. Why the words were left out in the
third article of the convention of 1889 when their insertion would
have placed the subject entirely at rest may perhaps be a matter of
some possible surprise, yet their absence cannot so far alter the
otherwise plain meaning of the two treaties as to give them a
totally different construction.
In addition to the provisions of the treaty of 1889 we find
still in existence the already-mentioned sections of the Revised
Statutes which prohibit a person's arrest or trial for any other
offense than that with which he was charged in the extradition
proceedings until he shall have had a reasonable time to return
unmolested from the country to which he was brought.
It is argued, however, that the sections in question have
Page 205 U. S. 321
been repealed by implication by the treaty or convention of
1889, and that the respondent therefore cannot obtain any benefit
from them. We see no fair or reasonable ground upon which to base
the claim of repeal. Repeals by implication are never favored, and
a later treaty will not be regarded as repealing an earlier statute
by implication unless the two are absolutely incompatible and the
statute cannot be enforced without antagonizing the treaty.
United States v. Lee Yen Tai, 185 U.
S. 213. If both can exist, the repeal by implication
will not be adjudged. These sections are not incompatible with the
treaty or in any way inconsistent therewith. We find nothing in the
treaty which provides that a person shall be surrendered for one
offense and then that he may be punished for another, such as is
the case here. The most that can be asserted is that an inference
to that effect perhaps might be drawn from the absence in article
three of positive language preventing such punishment. But that
slight and doubtful inference, resting on such an insufficient
foundation, is inadequate to overcome the positive provisions of
the statute and the otherwise general scope of both treaties, which
are inconsistent with the existence of such right.
It is urged that the construction contended for by the
respondent is exceedingly technical, and tends to the escape of
criminals on refined subtleties of statutory construction, and
should not therefore be adopted. While the escape of criminals is,
of course, to be very greatly deprecated, it is still most
important that a treaty of this nature between sovereignties should
be construed in accordance with the highest good faith, and that it
should not be sought, by doubtful construction of some of its
provisions, to obtain the extradition of a person for one offense
and then punish him for another and different offense. Especially
should this be the case where the government surrendering the
person has refused to make the surrender for the other offense on
the ground that such offense was not one covered by the treaty.
Our attention has been directed to various other treaties
Page 205 U. S. 322
between this government and other nations where provision is
expressly made in regard to punishment. They frequently provide
that no person shall be triable or tried "or be punished" for any
other offense than that for which he was delivered up until he has
had an opportunity of returning to the country from which he was
surrendered. But because in some of the treaties the words "or be
punished" are contained, we are not required to hold that, in the
case before us, the absence of those words permits such punishment
when that construction is, as we have said, contrary to the
manifest meaning of the whole treaty and also violates the statutes
above cited. The order of the Circuit Court is
Affirmed.
Mr. Justice Moody did not sit in the case and took no part in
its decision.
*
"
ARTICLE II"
"A fugitive criminal shall not be surrendered if the offense in
respect of which his surrender is demanded be one of a political
character, or if he proves that the requisition for his surrender
has in fact been made with a view to try or punish him for an
offense of a political character."
"No person surrendered by either of the high contracting parties
to the other shall be triable or tried, or be punished for any
political crime or offense, or for any act connected therewith,
committed previously to his extradition."
"If any question shall arise as to whether a case comes within
the provisions of this article, the decision of the authorities of
the government in whose jurisdiction the fugitive shall be at the
time shall be final."
"
ARTICLE III"
"No person surrendered by or to either of the high contracting
parties shall be triable or be tried for any crime or offense,
committed prior to his extradition, other than the offense for
which he was surrendered, until he shall have had an opportunity of
returning to the country from which he was surrendered."
"
ARTICLE VI"
"The extradition of fugitives under the provisions of this
convention and of the said tenth article shall be carried out in
the United States and in Her Majesty's dominions, respectively, in
conformity with the laws regulating extradition for the time being
in force in the surrendering states."
"
ARTICLE VII"
The provisions of the said tenth article and of this convention
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 for 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."
