On the hearing of an appeal from a judgment of a circuit court
discharging a writ of habeas corpus which had been issued on the
petition of a person arrested for a crime committed in a foreign
country and held for extradition under treaty provisions, the
jurisdiction of the commissioner and the sufficiency of the legal
ground for his action are the main questions to be decided, and
this Court declines to consider questions respecting the
introduction of evidence or the sufficiency of the authentication
of documentary proof.
When a person is held for examination before a commissioner, to
determine whether he shall be surrendered to the Mexican
authorities to be extradited for a crime committed in Mexico, the
question to be determined is whether the commission of the crime
alleged is so established as to justify the prisoner's apprehension
and commitment for trial if the offense had been committed in the
United states, and the proceeding resembles in its character
preliminary examinations before a magistrate for the
Page 127 U. S. 458
purpose of determining whether a case is made out to justify the
holding of a person accused, to answer to an indictment.
The crime of "forgery," as enumerated in article 3 of the Treaty
of Extradition with Mexico of June 20, 1862, is not confined to the
English common law offense of forgery, but it includes the making,
forging, uttering, and selling to the public, fraudulent printed
tickets of admission to an operatic performance, bearing on their
face in print the name of the manager of the operatic company and
also stamped with his name and seal. It seems that such an offense
is also included in the crime of forgery as defined by the English
common law.
This was an appeal from a judgment denying a discharge to a
prisoner on a writ of habeas corpus. Petitioner appealed. The case
is stated in the opinion.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an appeal from a judgment of the Circuit Court of the
United States for the Southern District of New York upon a writ of
habeas corpus in which that court remanded the prisoner to the
custody of the marshal of the district.
The proceedings were originally instituted by a complaint made
before Samuel H. Lyman, a United States commissioner for the
circuit court of that district, by one Juan N. Navarro, Consul
General of the Republic of Mexico at the City of New York, against
George Benson, whom he charged with being guilty of the crime of
forgery, committed in Mexico, and therefore liable to extradition
under the treaty of December 11, 1861, between the United States
and Mexico, to be there tried for that offense. The case was heard
quite elaborately before Commissioner Lyman, who rendered the
following judgment:
"After a full and fair examination of the law and the facts in
the case, I find that the evidence produced against the said Benson
is sufficient in law to justify his commitment for the crime of
forgery for the purpose of being delivered up as a fugitive from
justice to the Republic of Mexico pursuant to
Page 127 U. S. 459
the provisions of the said treaty. Wherefore I have committed
the said Benson, pursuant to the provisions of said treaty, to the
custody of the United States marshal, to be by him held in the
proper jail until a warrant for the surrender of the said Benson
shall issue according to the stipulation of the said treaty or he
shall be otherwise dealt with according to law."
A writ of habeas corpus was thereupon allowed by JUSTICE
BLATCHFORD, of the Supreme Court of the United States, directed to
Martin T. McMahon, the marshal in whose custody the prisoner,
Benson, was held by order of the commissioner, requiring him to
produce said prisoner before the circuit court of the United States
for that district on February 21, 1888 at 11 o'clock in the
forenoon, and also a writ of certiorari to Commissioner Lyman,
directing him to return at the same time the
"cause of imprisonment of George Benson, and true copies of the
proceedings, complaints, warrants, depositions, trials,
examinations, determinations, commitments, and record"
had before him. To this the marshal made return that he held the
prisoner by virtue of a commitment of Commissioner Lyman, and the
commissioner returned into the court a transcript of all the
proceedings had before him, including the testimony and exhibits.
Upon the hearing in the circuit court, it was
"Ordered, that the writ of habeas corpus be, and the same is,
hereby discharged; that the petitioner remain in the custody of the
Marshal of the United States for the Southern District of New York
pending such application on appeal as petitioner may be advised to
make to a Justice of the Supreme Court of the United States
pursuant to the 34th Rule of that court or until the further order
of this Court, upon notice by said complainant after twenty days
from the date of this order."
Thereupon the petitioner, George Benson, obtained the allowance
of an appeal from this judgment of the circuit court to this Court,
by MR. JUSTICE BLATCHFORD. The matter has been argued very fully
before us by counsel for the prisoner and for the Mexican
government.
This proceeding was instituted before the commissioner under
Title LXVI of the Revised Statutes of the United
Page 127 U. S. 460
States, concerning extradition. The first section reads as
follows:
"SEC. 5270. 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."
There is no evidence in this record -- at least there is no copy
-- of any demand or requisition made by the Mexican authorities
upon our government for the extradition of this prisoner. The
proceedings, therefore, up to this time rest upon the initiative
authorized by the statutes upon that subject, the Mexican
government, however, being represented by counsel, and the
correspondence with its officers which was introduced into the
record showing their interest in the matter, and their purpose to
have this prisoner brought to that country for trial.
The treaty under which this right to arrest the prisoner and
detain him for extradition is asserted was concluded at Mexico
Page 127 U. S. 461
December 11, 1861, and proclaimed by the President of the United
States June 20, 1862. 12 Stat. 1199. It has the usual provisions
that the contracting parties shall, on requisitions made in their
name, deliver up to justice persons who, being accused of the
crimes enumerated in article 3, committed within the jurisdiction
of the requiring party, shall seek an asylum or shall be found
within the territories of the other. The enumeration of crimes in
that article is as follows:
"Murder (including assassination, parricide, infanticide, and
poisoning); assault with intent to commit murder; mutilation;
piracy; arson; rape; kidnapping, defining the same to be the taking
and carrying away of a free person by force or deception; forgery,
including the forging or making, or knowingly passing or putting in
circulation, counterfeit coin or banknotes, or other paper current
as money with intent to defraud any person or persons; the
introduction or making of instruments for the fabrication of
counterfeit coin or banknotes or other paper current as money;
embezzlement of public moneys; robbery, defining the same to be the
felonious and forcible taking from the person of another of goods
or money to any value, by violence, or putting him in fear;
burglary, defining the same to be breaking and entering into the
house of another with intent to commit felony, and the crime of
larceny of cattle or other goods and chattels of the value of
twenty-five dollars or more, when the same is committed within the
frontier states or territories of the contracting parties."
As the case appears before us on the transcript of the evidence
produced before Commissioner Lyman and before the circuit court on
the writ of habeas corpus, it is considerably confused, but very
full and elaborate. Several questions in regard to the introduction
of evidence which were raised before the commissioner, some of them
concerning the sufficiency of the authentication of papers and
depositions taken in Mexico and as to the testimony of persons
supposed to be expert in the law of that country regarding the
subject, are found in the record, which we do not think require
notice here. The writ of habeas corpus directed to the Marshal of
the Southern District of New York does not operate as a writ of
error, and
Page 127 U. S. 462
many of the orders and decisions made by the commissioner at the
hearing which took place before him become unimportant in the
examination of the sufficiency of the proceedings under which he
ordered the prisoner into custody. The main question to be
considered upon such a writ of habeas corpus must be, had the
commissioner jurisdiction to hear and decide upon the complaint
made by the Mexican consul?, and also was there sufficient legal
ground for his action in committing the prisoner to await the
requisition of the Mexican authorities?
In regard to the jurisdiction of the commissioner to hear the
complaint, no doubt can be entertained. The offense set out in
three or four different forms in the petition of Navarro, the
Mexican consul general, is distinctly that of forgery on the part
of Benson; the particular forgery charged is that of the name of
Henry E. Abbey, and the time, place, and circumstances are detailed
with sufficient particularity to comply with the language of the
treaty. The Revised Statutes, after providing for the hearing
before the justice or other officer to whom that duty is committed,
to the end that the evidence of criminality may be heard and
considered, proceed to enact that if on such hearing such
officer
"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."
The subject of what proof shall be required for the delivery
upon requisition of parties charged with crime is considered in
article I of the treaty, in regard to which it is provided
"that this shall be done only when the fact of 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."
Taking this provision of the treaty, and that of the Revised
Page 127 U. S. 463
Statutes above recited, we are of opinion that 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,
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 describes 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. Omitting much, therefore,
that under this view of the case is immaterial both in the argument
of counsel and in the record of the case as it comes before us, the
following facts appear to be well established:
Mr. Henry E. Abbey, a noted theatrical manager in this
Page 127 U. S. 464
country, had brought Adelina Patti, the wonderful songstress,
from Europe to the United States under an arrangement that she
would also sing in Mexico. Benson made the acquaintance of Abbey
here, and also became intimate with his agent, whose name was
Marcus Meyer. Through the latter he learned that arrangements had
been made for the appearance of Patti at the Teatro Nacional in the
City of Mexico, in the month of December, 1886. After obtaining the
particulars of the engagement and contract for the use of that
theater from Abbey's agent, Benson hastened to the City of Mexico,
where he represented himself as Meyer, and as the agent of Mr.
Abbey. He succeeded in imposing upon the parties having control of
the theater so far as to make them believe that he had full
authority to conduct the arrangements for the concerts and operas
in which Patti was to appear, which were advertised in the
newspapers of that city. He accordingly proceeded to fix the date
of such performances, to arrange the prices, and issue the tickets
therefor, which he sold and obtained the money for to the amount of
some twenty-five or thirty thousand dollars. He escaped with this
money, fled from Mexico, and went to Europe. Of course, all the
persons who had bought the tickets so issued by him were defrauded
of the amount paid for them, as well as great injury done to Mr.
Abbey and the owners of the theater in regard to the performances
to be held there. The specific offense charged against Benson
arising out of this transaction is the forgery of these tickets of
admission, of which the originals are produced before us with their
translations.
Page 127 U. S. 465
About the only contest made by the counsel for the prisoner is
that these are not forgeries, mainly because they are printed
matter, and are not in writing, and because neither the name of Mr.
Abbey nor of anybody purporting to be responsible therefor is found
in writing upon them, using the word "writing," as defendant's
counsel does, as meaning script or signatures made by the use of a
pen. It is therefore contended that these tickets are not
forgeries; but the fraudulent intent with which they were issued,
the actual loss and deception to the parties who bought them, and
the injury to Mr. Abbey and the others concerned, are not
controverted. It is said, however, that this is only a cheat at
common law, and it is very strenuously argued that the real meaning
of the
Page 127 U. S. 466
word "forgery" in this treaty is to be ascertained by the
definition of that offense according to the common law of
England.
The first idea that occurs to the mind in reference to this
suggestion is that the common law of England can hardly be said to
be the only criterion by which to construe the language of a treaty
between Mexico and the United States. The former government cannot
be supposed to have had that common law exclusively in mind as
governing the true construction of a treaty concluded between
itself and this country, neither of which owes any allegiance to
England. Another circumstance in connection with this matter is
that this Court has frequently decided that there are no common law
crimes of the United States. In very few of the states were there
common law crimes remaining as subjects of punishment at the time
when this treaty was made. Almost every state in the Union has
recast her criminal law by the enactment of statutes in such a mode
that the common law is now only appealed to as an aid in the
definition of crimes. By the Roman civil law, which perhaps
pervades or did pervade the jurisprudence of the larger portion of
the civilized nations of the earth at the time of the making of
this treaty, forgery was looked upon as one of the subdivisions of
the
crimen falsi, which included forgery, perjury, the
alteration of the current coin, dealing with false weight and
measures, etc. 1 Bouvier's Law Dictionary 411. In support of this
view it may be noted that the term corresponding to the word
"forgery" which is used in the Spanish draft of the treaty is "la
falsification." It certainly does not appear from this that the
Mexican authorities intended to be bound in the treaty by any very
restricted use of the word "forgery" when the question concerned an
offense of that character committed in Mexico. It is for an offense
against Mexican law that the prisoner is held to answer. As he is
not now upon final trial, but the only question is whether he has
committed an offense for which, according to this treaty, he should
be extradited to that country, and there tried, we do not see that
in this application to
Page 127 U. S. 467
set the prisoner at large, after he has been once committed by
an examining court having competent authority and after having been
held to answer in Mexico for the offense charged, that this Court
is bound to examine with very critical accuracy into the question
as to whether or not the act committed by the prisoner is
technically a forgery under the common law. Especially is this so
when the wickedness of the act, the fraudulent intent with which it
was committed, and the final success by which the fraud was
perpetrated are undoubted.
But we are not satisfied that the crime of forgery, even at
common law, is limited to the production by means of a pen of the
resemblance of some man's genuine signature which was produced with
a pen. This view of the subject would exclude from the definition
of this crime all such instruments as government bonds, banknotes,
and other obligations of great value, as well as railroad tickets,
where the signature of the officer which makes them binding and
effectual is impressed upon them by means of a plate or other
device representing his genuine signature. It would also exclude
from its definition all such instruments charged as forgeries where
the similitude of the signer's name is produced by a plate used by
the forger. It can hardly be possible that these are not forgeries
within the definition of the common law, and if they are, they show
that it is not necessary that the name which appears upon the false
instrument shall be placed thereon by means of a pen or by the
actual writing of it in script, but that the crime may be committed
as effectually if it is done by an engraved plate or type so
arranged as to represent or forge the name as made by the actual
use of a pen. It is difficult to perceive how the question as to
whether the forgery was committed by printing, or by stamping, or
with an engraved plate, or by writing with a pen can change the
nature of the crime charged.
Mr. Bishop, in the second volume of his work on Criminal Law,
discusses this subject with his usual philosophical acumen. He
says:
"SEC. 525. Looking at the writing as a representation addressed
to the eye, reason teaches us that whether it is made
Page 127 U. S. 468
with the pen, with a brush, with printers' type and ink, with
any other instrument, or by any other device whatever; whether it
is in characters which stand for words or in characters which stand
for ideas, in the English language, or in any other language, is
quite immaterial provided the representation conveys to any mind
the substance of what the law requires to constitute the writing
whereof forgery may be committed. This statement of the doctrine is
in broader terms than are to be found in the books, yet there is no
decision contrary to what is thus said, and beyond doubt the
tribunals will hold the law as thus stated whenever the occasion
requires."
"SEC. 526. Thus, Mr. Hammond remarks:"
" The question upon this branch of the inquiry remains whether
seals, or rather their impressions, with other similar subjects,
are upon a similar footing with writings [here employing the word
in its restricted sense], and in all probability it will be found
that they are, though no positive authority has sanctioned this
notion."
This author also quotes from the fifth report of the English
criminal laws Commission, made in 1840, p. 69
et seq., in
which is found the following language, speaking of forgery:
"The offense extends to every writing used for the purpose of
authentication, as in the case of a will, by which a testator
signifies his intentions as to the disposition of his property, or
of a certificate by which an officer or other authorized person
assures others of the truth of any fact, or of a warrant by which a
magistrate signifies his authority to arrest an offender. The crime
is not confined to the falsification of mere writings; it plainly
extends to seals, stamps, and all other visible marks of
distinction by which the truth of any fact is authenticated, or the
quality or genuineness of any article is warranted, and
consequently where a party may be deceived and defrauded from
having been, by false signs, induced to give credit where none was
due."
While the views of counsel for the prisoner are unsupported by
any well considered judicial decision, there is high authority for
holding the contrary. The great increase in the use
Page 127 U. S. 469
of printing for all forms of instruments, such as deeds, bonds,
tickets, tokens for the payment of goods, etc., have seemed to
demand that where, either by the common law or by statute, such
instruments are required to be in writing, the term "writing"
should be held to include printing as well as script.
In
Henshaw v. Foster, 9 Pick. 312, reference was made
to the provision of the Constitution of the State of Massachusetts
which declared that "Every member of the House of Representatives
shall be chosen by written votes." A party offered his ballot,
which was rejected, and he thereupon sued the inspectors of the
election for their refusal to receive his vote. They declined to
accept it upon the ground that the ballot was printed, and was not
therefore "written" within the meaning of the constitution. The
court, however, in a very well considered opinion, decided that the
printed vote came within she meaning of the law requiring votes to
be in writing. In the subsequent case of
Commonwealth v.
Ray, 3 Gray 441, the defendant was indicted for forgery, and
the question was whether the instrument which he presented
constituted a forgery at common law. The court said:
"It is objected that the crime of forgery cannot be committed by
counterfeiting an instrument wholly printed or engraved, and on
which there is no written signature personally made by those to be
bound. The question is whether the writing the counterfeiting of
which is forgery may not be wholly made by means of printing or
engraving, or must be written by the pen by the party who executes
the contract. In the opinion of the court, such an instrument may
be the subject of forgery when the entire contract, including the
signature of the party, has been printed or engraved. The cases of
forgery generally are cases of forged handwriting. The course of
business, and the necessities of greater facilities for dispatch,
have introduced, to some extent, the practice of having contracts
and other instruments wholly printed or engraved, even including
the name of the party to be bound. . . . It has never been
considered any objection to contracts required by the statute of
frauds to be in writing that they were printed."
Then, after speaking of the cases in which a signature made
Page 127 U. S. 470
by the pen is necessary to the execution of a contract, the
court proceeds:
"But if an individual or a corporation do in fact elect to put
into circulation contracts or bonds in which the names of the
contracting parties are printed or lithographed, as a substitute
for being written with the pen, and so intended, the signatures are
to all intents and purposes the same as if written. It may be more
difficult to establish the fact of their signatures, but, if shown,
the effect is the same. Such being the effect of such form of
executing like contracts, it would seem to follow that any
counterfeit of it, in the similitude of it, would be making a false
writing purporting to be that of another with the intent to
defraud."
It was therefore held in that case that although he did not
personally aid in the manual operation of engraving or
lithographing the spurious instrument, yet, it being conceded that
it was done by his procuration, the defendant was responsible. That
was the case of a railroad ticket, and the applicability of the
decision to the matter now before us is unquestionable. The case of
People v. Rhoner, 4 Parker's Crim.Rep. 166, is strikingly
like the present one in almost every particular. There, the
prisoner had been committed by a justice of the peace on the
preliminary examination upon a charge of having in his possession,
knowingly, counterfeited notes of the Austrian National Bank, with
intent to defraud. He was brought before the supreme court in the
State of New York by a writ of habeas corpus, and the same question
which is raised here was there presented. It was said that every
part of these banknotes upon which the charge was founded, which
appeared to be complete and entirely filled up, including the
signature of the cashier or director, was evidently a print or
impression from an engraved plate. The argument was there pressed,
as in this case, that these notes could not be forgeries for that
reason, nor could they be the subject of forgery. The whole
question was very fully reviewed by Judge Sutherland in his
opinion, in which he held that
"The word 'instrument' includes not only 'written instruments'
and 'writings,' but also engraved or printed instruments, being or
purporting to
Page 127 U. S. 471
be the act of another; indeed, all and every kind of instrument
by the forging of which any person may be affected, bound, or in
any way injured in his person or property. I do not see why an
engraved or printed instrument, or an engraved or printed name,
affixed to an instrument by a person is not his act, and may not
purport to be the act of another."
The same principle is reaffirmed by the Supreme Court of
Massachusetts in the case of
Wheeler v. Lynde, 1 Allen
402.
We are of opinion that the decision of Commissioner Lyman
committing the prisoner to the custody of the marshal to await the
requisition of the Mexican government was justified, and the
judgment of the circuit court dismissing the writ of habeas corpus
is accordingly
Affirmed.
* The following are facsimiles of these tickets except as to
color. The tickets for the stalls and balconies were blue, those
for the galleries red, and those for the second and third tier of
boxes yellow.
image:a
image:b