A plea to an indictment in a state court that the defendant has
been brought from a foreign country to this country by proceedings
which are a violation of a treaty between that country and the
United states, and which are forbidden by that treaty, raises a
question, if the right asserted by the plea is denied, on which
this Court can review, by writ of error, the judgment of the state
court.
But where the prisoner has been kidnapped in the foreign country
and brought by force against his will within the jurisdiction of
the state
Page 119 U. S. 437
whose law he has violated, with no reference to an extradition
treaty, though one existed, and no proceeding or attempt to proceed
under the treaty, this Court can give no relief, for these facts do
not establish any right under the Constitution or laws or treaties
of the United States.
The treaties of extradition to which the United States are
parties do not guarantee a fugitive from the justice of one of the
countries an asylum in the other. They do not give such person any
greater or more sacred right of asylum than he had before. They
only make provision that for certain crimes, he shall be deprived
of that asylum and surrendered to justice, and they prescribe the
mode in which this shall be done.
The trespass of a kidnapper, unauthorized by either of the
governments and not professing to act under authority of either, is
not a case provided for in the treaty, and the remedy is by a
proceeding against him by the government whose law he violates or
by the party injured.
How far such forcible transfer of the defendant so as to bring
him within the jurisdiction of the state where the offense was
committed may be set up against the right to try him is the
province of the state court to decide, and presents no question in
which this Court can review its decision.
The plaintiff in error, being convicted of embezzlement in a
state court of Illinois, sued out this writ of error. The federal
question which makes the case is stated in the opinion of the
Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This case is brought here by a writ of error to the Supreme
Court of the State of Illinois. The plaintiff in error, Frederick
M. Ker, was indicted, tried, and convicted in the Criminal Court of
Cook County, in that state, for larceny. The indictment also
included charges of embezzlement. During the proceedings connected
with the trial, the defendant presented a plea in abatement, which,
on demurrer, was overruled, and, the defendant refusing to plead
further, a plea of not guilty was entered for him, according to the
statute of that state, by
Page 119 U. S. 438
order of the court, on which the trial and conviction took
place.
The substance of the plea in abatement, which is a very long
one, is that the defendant, being in the City of Lima, in Peru,
after the offenses were charged to have been committed, was in fact
kidnapped and brought to this country against his will. His
statement is that, application having been made by the parties who
were injured, Governor Hamilton, of Illinois, made his requisition,
in writing, to the Secretary of State of the United States for a
warrant requesting the extradition of the defendant, by the
executive of the Republic of Peru, from that country to Cook
County; that on the first day of March, 1883, the President of the
United States issued his warrant, in due form, directed to Henry G.
Julian, as messenger, to receive the defendant from the authorities
of Peru upon a charge of larceny, in compliance with the treaty
between the United States and Peru on that subject; that the said
Julian, having the necessary papers with him, arrived in Lima, but,
without presenting them to any officer of the Peruvian government
or making any demand on that government for the surrender of Ker,
forcibly and with violence arrested him, placed him on board the
United States vessel
Essex, in the harbor of Callao, kept
him a close prisoner until the arrival of that vessel at Honolulu,
where, after some detention, he was transferred in the same
forcible manner on board another vessel, to-wit, the
City of
Sydney, in which he was carried a prisoner to San Francisco,
in the State of California. The plea then states that before his
arrival in that city, Governor Hamilton had made a requisition on
the Governor of California, under the laws and Constitution of the
United States, for the delivery up of the defendant as a fugitive
from justice, who had escaped to that state on account of the same
offenses charged in the requisition on Peru and in the indictment
in this case. This requisition arrived, as the plea states, and was
presented to the Governor of California, who made his order for the
surrender of the defendant to the person appointed by the Governor
of Illinois, namely, one Frank Warner, on the 25th day of June,
1883. The defendant arrived in the City of San
Page 119 U. S. 439
Francisco on the 9th day of July thereafter, and was immediately
placed in the custody of Warner, under the order of the Governor of
California, and, still a prisoner, was transferred by him to Cook
County, where the process of the criminal count was served upon
him, and he was held to answer the indictment already
mentioned.
The plea is very full of averments that the defendant protested,
and was refused any opportunity whatever, from the time of his
arrest in Lima until he was delivered over to the authorities of
Cook County, of communicating with any person, or seeking any
advice or assistance in regard to procuring his release by legal
process or otherwise, and he alleges that this proceeding is a
violation of the provisions of the treaty between the United States
and Peru, negotiated in 1870, which was finally ratified by the two
governments, and proclaimed by the President of the United States,
July 27, 1874. 18 Stat. 719.
The judgment of the Criminal Court of Cook County, Illinois, was
carried by writ of error to the supreme court of that state, and
there affirmed, to which judgment the present writ of error is
directed. The assignments of error made here are as follows:
"First, that said Supreme Court of Illinois erred in affirming
the judgment of said Criminal Court of Cook County, sustaining the
demurrer to plaintiff in error's plea to the jurisdiction of said
criminal court; second, that said Supreme Court of Illinois erred
in its judgment aforesaid in failing to enforce the full faith and
credit of the federal treaty with the Republic of Peru, invoked by
plaintiff in error in his said plea to the jurisdiction of said
criminal court."
The grounds upon which the jurisdiction of this Court is invoked
may be said to be three, though from the briefs and arguments of
counsel it is doubtful whether, in point of fact, more than one is
relied upon. It is contended in several places in the brief that
the proceedings in the arrest in Peru, and the extradition and
delivery to the authorities of Cook County, were not "due process
of law," and we may suppose, although
Page 119 U. S. 440
it is not so alleged, that this reference is to that clause of
Article XIV of the amendments to the Constitution of the United
States which declares that no state shall deprive any person of
life, liberty, or property "without due process of law." The "due
process of law" here guaranteed is complied with when the party is
regularly indicted by the proper grand jury in the state court, has
a trial according to the forms and modes prescribed for such
trials, and when, in that trial and proceedings, he is deprived of
no rights to which he is lawfully entitled. We do not intend to say
that there may not be proceedings previous to the trial in regard
to which the prisoner could invoke in some manner the provisions of
this clause of the Constitution, but, for mere irregularities in
the manner in which he may be brought into custody of the law, we
do not think he is entitled to say that he should not be tried at
all for the crime with which he is charged in a regular indictment.
He may be arrested for a very heinous offense by persons without
any warrant, or without any previous complaint, and brought before
a proper officer, and this may be in some sense said to be "without
due process of law." But it would hardly be claimed that, after the
case had been investigated and the defendant held by the proper
authorities to answer for the crime, he could plead that he was
first arrested "without due process of law." So here, when found
within the jurisdiction of the State of Illinois and liable to
answer for a crime against the laws of that state, unless there was
some positive provision of the Constitution or of the laws of this
country violated in bringing him into court, it is not easy to see
how he can say that he is there "without due process of law" within
the meaning of the constitutional provision.
So, also, the objection is made that the proceedings between the
authorities of the State of Illinois and those of the State of
California, and was not with the act of Congress on that subject,
and especially that at the time the papers and warrants were issued
from the Governors of California and Illinois, the defendant was
not within the state of California, and was not there a fugitive
from justice. This argument is not much pressed by counsel, and was
scarcely noticed in the Supreme
Page 119 U. S. 441
Court of Illinois, but the effort here is to connect it as a
part of the continued trespass and violation of law which
accompanied the transfer from Peru to Illinois. It is sufficient to
say in regard to that part of this case that when the governor of
one state voluntarily surrenders a fugitive from the justice of
another state to answer for his alleged offenses, it is hardly a
proper subject of inquiry on the trial of the case to examine into
the details of the proceedings by which the demand was made by the
one state and the manner in which it was responded to by the other.
The case does not stand, when a party is in court and required to
plead to an indictment, as it would have stood upon a writ of
habeas corpus in California, or in any of the states through which
he was carried in the progress of his extradition, to test the
authority by which he was held, and we can see in the mere fact
that the papers under which he was taken into custody in California
were prepared and ready for him on his arrival from Peru, no
sufficient reason for an abatement of the indictment against him in
Cook County, or why he should be discharged from custody without a
trial.
But the main proposition insisted on by counsel for plaintiff in
error in this Court is that, by virtue of the treaty of extradition
with Peru, the defendant acquired by his residence in that country
a right of asylum -- a right to be free from molestation for the
crime committed in Illinois, a positive right in him that he should
only be forcibly removed from Peru to the State of Illinois in
accordance with the provisions of the treaty -- and that this right
is one which he can assert in the courts of the United States in
all cases, whether the removal took place under proceedings
sanctioned by the treaty or under proceedings which were in total
disregard of that treaty amounting to an unlawful and unauthorized
kidnapping. This view of the subject is presented in various forms,
and repeated in various shapes, in the argument of counsel. The
fact that this question was raised in the Supreme Court of Illinois
may be said to confer jurisdiction on this Court because, in making
this claim, the defendant asserted a right under a treaty of the
United States, and, whether the assertion was
Page 119 U. S. 442
well founded or not, this Court has jurisdiction to decide it,
and we proceed to inquire into it.
There is no language in this treaty or in any other treaty made
by this country on the subject of extradition of which we are aware
which says in terms that a party fleeing from the United States to
escape punishment for crime becomes thereby entitled to an asylum
in the country to which he has fled. Indeed, the absurdity of such
a proposition would at once prevent the making of a treaty of that
kind. It will not be for a moment contended that the government of
Peru could not have ordered Ker out of the country on his arrival
or at any period of his residence there. If this could be done,
what becomes of his right of asylum?
Nor can it be doubted that the government of Peru could, of its
own accord, without any demand from the United States, have
surrendered Ker to an agent of the State of Illinois, and that such
surrender would have been valid within the dominions of Peru. It is
idle, therefore, to claim that, either by express terms or by
implication, there is given to a fugitive from justice in one of
these countries any right to remain and reside in the other, and if
the right of asylum means anything, it must mean this. The right of
the government of Peru voluntarily to give a party in Ker's
condition an asylum in that country is quite a different thing from
the right in him to demand and insist upon security in such an
asylum. The treaty, so far as it regulates the right of asylum at
all, is intended to limit this right in the case of one who is
proved to be a criminal fleeing from justice, so that, on proper
demand and proceedings had therein, the government of the country
of the asylum shall deliver him up to the country where the crime
was committed. And to this extent, and to this alone, the treaty
does regulate or impose a restriction upon the right of the
government of the country of the asylum to protect the criminal
from removal therefrom.
In the case before us, the plea shows that although Julian went
to Peru with the necessary papers to procure the extradition of Ker
under the treaty, those papers remained in his pocket, and were
never brought to light in Peru; that no steps
Page 119 U. S. 443
were taken under them, and that Julian, in seizing upon the
person of Ker and carrying him out of the territory of Peru into
the United States, did not act, nor profess to act, under the
treaty. In fact, that treaty was not called into operation, was not
relied upon, was not made the pretext of arrest, and the facts show
that it was clear case of kidnapping within the dominions of Peru,
without any pretense of authority under the treaty or from the
government of the United States.
In the case of
United States v. Rauscher, just decided,
ante, 119 U. S. 407, and
considered with this, the effect of extradition proceedings under a
treaty was very fully considered, and it was there held that when a
party was duly surrendered by proper proceedings under the treaty
of 1842 with Great Britain, he came to this country clothed with
the protection which the nature of such proceedings and the true
construction of the treaty gave him. One of the rights with which
he was thus clothed, both in regard to himself and in good faith to
the county which had sent him here, was that he should be tried for
no other offense than the one for which he was delivered under the
extradition proceedings. If Ker had been brought to this country by
proceedings under the treaty of 1870-74 with Peru, it seems
probable from the statement of the case in the record that he might
have successfully pleaded that he was extradited for larceny, and
convicted by the verdict of a jury of embezzlement, for the
statement in the plea is that the demand made by the President of
the United States, if it had been put in operation, was for an
extradition for larceny, although some forms of embezzlement are
mentioned in the treaty as subjects of extradition. But it is quite
a different case when the plaintiff in error comes to this country
in the manner in which he was brought here, clothed with no rights
which a proceeding under the treaty could have given him, and no
duty which this country owes to Peru or to him under the treaty. We
think it very clear, therefore, that in invoking the jurisdiction
of this Court upon the ground that the prisoner was denied a right
conferred upon him by a treaty of the United States, he has failed
to establish the existence of any such right.
Page 119 U. S. 444
The question of how far his forcible seizure in another country
and transfer by violence, force, or fraud to this country could be
made available to resist trial in the state court for the offense
now charged upon him is one which we do not feel called upon to
decide, for in that transaction we do not see that the Constitution
or laws or treaties of the United States guarantee him any
protection. There are authorities of the highest respectability
which hold that such forcible abduction is no sufficient reason why
the party should not answer when brought within the jurisdiction of
the court which has the right to try him for such an offense, and
presents no valid objection to his trial in such court. Among the
authorities which support the proposition are the following:
Ex
Parte Scott, 9 B. & C. 446 (1829);
Lopez &
Sattler's Case, 1 Dearsly & Bell's Crown Cases 525;
State v. Smith, 1 Bailey 283 (1829);
State v.
Brewster, 7 Vt. 118 (1835);
Dow's Case, 18 Penn.St.
37 (1851);
State v. Ross, 21 Ia. 467 (1866);
The Richmond v. United
States, 9 Cranch 102. However this may be, the
decision of that question is as much within the province of the
state court as a question of common law or of the law of nations of
which that court is bound to take notice, as it is of the courts of
the United States. And though we might or might not differ with the
Illinois court on that subject, it is one in which we have no right
to review their decision.
It must be remembered that this view of the subject does not
leave the prisoner or the government of Peru without remedy for his
unauthorized seizure within its territory. Even this treaty with
that country provides for the extradition of persons charged with
kidnapping, and, on demand from Peru, Julian, the party who is
guilty of it, could be surrendered, and tried in its courts for
this violation of its laws. The party himself would probably not be
without redress, for he could sue Julian in an action of trespass
and false imprisonment, and the facts set out in the plea would
without doubt sustain the action. Whether he could recover a sum
sufficient to justify the action would probably depend upon moral
aspects of the case, which we cannot here consider.
Page 119 U. S. 445
We must, therefore, hold that so far as any question in which
this Court can revise the judgment of the Supreme Court of the
State of Illinois is presented to us, the judgment must be
Affirmed.