2 Brock. 493 | U.S. Circuit Court for the District of Virginia | 1835
Jose Ferrei-ra dos Santos, a Portuguese subject, having been committed'for trial before this court, under a charge of piracy, and the grand jury having found the indictnu -t against him not a true bill, he would be entitled to a discharge from custody, as it regards that accusation. But an application is now made, at the instance of the charge des af-faires of Portugal, that he may be detained,
As to the first point, as far as I am informed, the subject has not been before any •of the federal courts of the Union. The case of Jonathan Robins is not an exception to this remark. He was, indeed, at the request -of the then president of the United States, Mr. Adams the elder, delivered .up by the ■district judge of South Carolina, to the British consul, on a charge of murder, committed by him, (Robins,) on board of a British vessel on the high seas. But, that case depended upon the twenty-seventh article of the treaty with Great Britain, made in the year 1794, by which it was agreed, that fugitives -charged with murder, or forgery, committed within the jurisdiction of either, and seeking an asylum within any of the countries ■of the other, should be reciprocally delivered nj). in the manner and upon the terms therein stated. The question then, in that case, ns it relates to this point was, whether the -casus foederis of this article had occurred; whereas, in this case, there is no treaty stipulation, and the question must, therefore, ■depend upon the right of the government of Portugal to make the demand, and the consequent obligation of our government to surrender the person charged, independently of -any treaty or compact between them.
There have, however, been two decisions upon the subject, made by two distinguished jurists of our country: the one, by Judge Kent, of New York; the other, by' Chief Justice Tilghman, of Pennsylvania; the first, •asserting the right (see the ease of In re Washburn. 4 Johns. Ch. 106); the other adopting a different line of reasoning, and arriving in many respects, at different conclusions (see the case of Short v. Deacon, 10 Serg. & R. 126). It becomes necessary, then, to examine the question upon the principles laid down by the writers on public law, with reference to the application made of them in the two cases just cited, to the authoritative declarations of our own government, and generally, to all the bearings and relations of the subject Grotius asserts the right to demand, and the consequent obligation to surrender, all persons charged with crimes, who have fled to another country, whether they are citizens or subjects of that country, or foreigners, although, in practice, it is not insisted on. except in crimes against the state, or of a very heinous nature. As to lesser crimes, he says, they are connived at, unless otherwise agreed on, by treaty. In this doctrine, he is followed by Burlam - aqui, Heineccius, and Wynne. Vartel asserts the right and obligation, in case of great crime; butspeaksonlyasto the subjects of the country, on which the demand is made. And his reasoning applies to them only; because it is put upon the principle of the duty of the sovereign to prevent his subjects from doing mischief to other states, and the consequent, duty to punish or surrender. Puffendorf, on the contrary, holds the doctrine, that the- obligation to deliver up a criminal, is rather in virtue of some treaty, than in consequence ■ of a common and indispensable obligation. Martens, after stating that a sovereign may punish foreigners who fly to his dominions, after having committed a crime in the dominions of another, as well as those who commit it in his, adds: “But in neither, is he perfectly obliged to send them for punishment to their own country, not even supposing them to have been condemned before their escape.” He says, also, that according to modem custom, a criminal is frequently sent back to the place where the crime is committed, on the request of a power who offers to do the like service, and that we often see instances of this. Ward seems strongly to countenance the idea of Puffen-dorf.
I have thus given an abbreviated stater ment of these writers on public law; more detailed views of whose reasoning may be seen by reference to the works themselves, or to quotations from them, in the two cases before cited from New York and Pennsylvania. Thus much was necessary as a basis for my future reasoning. Upon the mere authority of foreign publicists, then, it would appear to be doubtful whether there was. independently of treaty, any obligation, on the part of our government, to surrender to another. a fugitive from justice. To decide the question, let us descend from these principles of abstract writers, and see .what has been the practice of Europe in ancient and modern times. Lord Coke, in his 3 Inst. 180 (I quote now from 10 Serg. & R.), after expressing a decided opinion against delivering up fugitives, gives us three instances of a refusal to deliver up; the first, a qualified one; the two others, absolute. Henry YII. of England, demanded of Ferdinand of Spain, the earl of Suffolk, attainted of high treason by parliament. Ferdinand refused to deliver him, until Henry promised not to put him to death. Henry VIII. of England, demanded of the king of France, Car
There is, indeed, a case in Ganada, in 1829, where a criminal from Vermont was delivered to the authorities of that state, upon a charge of larceny committed there, upon a warrant issued by the governor of the province; he was arrested, and on habeas corpus, before the chief justice, it was held lawful: in his opinion, he grounds himself generally upon the authorities and cases before stated, and his decision, therefore, must stand on-fall with them. It is worthy of remark, however, that this was a case of simple larceny, and. not one of great atrocity, as described by Grotius. and moreover, that the arrest was grounded upon a charge, on oath, of the-felony, and not upon a demand by-our government; so that it would seem, that the-opinion of the government at home, differed from that in the province of Canada. The opinion of European nations on this subject, is manifested by the numerous treaties made-by them, containing provision for the mutual surrender of criminals. In 1 Kent, Comm, p. 37, we are told, that treaties of this kind were made between England and Scotland in 1174, and England and Prance in 1308, and Prance and Savoy in 1378. As these were in the comparatively barbarous ages of Europe, let us come down to a period, when civilization had reached a high point. In the-letter of Mr. Jefferson, before referred to, dated in 1791, he says: “The delivery of fugitives from one country to another, as-practiced by several nations, is in consequence of conventions settled between them, defining precisely the cases wherein such deliveries shall take place. I know (says he) that such conventions exist, between Prance and Spain, Prance and Sardinia, Prance and Germany, Prance and the United Netherlands; between the several sovereigns, constituting the Germanic body, and I believe very generally, between co-terminous states, on the continent of Europe.” Why, let me ask, were all these treaties in ancient and modern times? I answer, either because the opinion of Puffendorf was considered right, that without a treaty stipulation, there was no obligation to surrender, or at least, the question was so unsettled, the respective rights and obligations of nations so indeterminate, and the refusal on the part of nations to surrender so frequent, that without treaty, there was no obligation at all, or none of any sort of practical value; for, what is this imperfect obligation of which the writers speak? It is the right of one to ask, which involves the right of the other to refuse, and as applied to this particular subject, that refusal had become so common, as
Let us now examine the views of our own government, on this point Mr. Jefferson, in the letter already referred to, in which he is writing to the president on the subject of .a request from the government, of South Carolina, that a demand should be made upon the governor of Florida, for the delivery of some fugitives, says: . “The laws of the United States, like those of England, receive every fugitive, (that is, as he had just before expressed it, the most atrocious offenders, as well as the most innocent victims,) and no authority has been given to our executives to deliver them up.” He states further, that the French government had been anxious to make a convention with us, authorizing them to demand their subjects coming here; that in the consular convention, Dr. Franklin agreed to- an article, giving to their consuls a right to take and send back captains of vessels, mariners, and passengers. Congress refused to ratify it, until the word “passengers” was stricken out. He goes on to say, in fact, however desirable it be, that the perpetrators of crimes, acknowledged to be such by all mankind, should be delivered up to punishment; yet, it is extremely difficult to draw the line between those, and acts rendered criminal by tyrannical laws only; hence, the first step always is, a convention defining the eases where a surrender shall take place. “If, then, the United States, (he continues), could not deliver up to Governor Quesnada, a fugitive from the laws of his country, we cannot claim, as a right, the delivery of fugitives from us; and it is worthy of consideration, whether the demand proposed to be made in Governor Pinckney’s letter, should it be complied with by the other party7, might not commit us disagreeably7, perhaps dishonourably, in event; for I do not think, that we can take l'or granted, that .the legislature of. the United States will establish a convention for the mutual delivery of fugitives; and w-ithout a reasonable certainty that they will, I think we ought not to give Governor Quesnada any grounds to expect that, in a similar case, we would redeliver fugitives from his government.”
On the 12th September, 1793, Mr.. Jefferson thus writes to Genet, the French minister, in answer to a demand that he had made for the delivery of fugitives: “The laws of this country take no hotice of crimes committed out of their jurisdiction. The most atrocious offender coming within their pale, is received by them as an innocent man; and they have authorized no one to seize or deliver him. The evil of protecting malefactors of every dye, is sensibly felt here, as in other countries; but, until a reformation of the criminal codes of most nations, to deliver fugitives from them, would be, to become their accomplices. The. former, therefore, is viewed as the lesser evil.” He goes on to say, that unless they come within the consular convention, no person in this country is authorized to deliver them; but on the contrary, they are under the protection of the laws, &e. In the course of the next year, (1794), the British treaty was made; the twenty-seventh article of which, already referred to, provided for this subject Thus, as well by the authoritative declarations, as by the acts of our government, the principle has been announced to the world, that the United States acknowledge no obligation to surrender fugitives, except by virtue of some treaty stipulation. Besides the reasons common to us, with other nations which recommend the justice and utility of this doctrine, we have strong ones arising from the spirit of our institutions, and the provisions of the federal constitution. If, for example, we were to take Grotius as our rule, the offence which he emphatically considers as most requiring a surrender, is treason; or, as he expresses it, offences against the state. Now, let us see what would be the practical effect of this rule? Suppose, that during the late war with Great Britain, a British born subject, who had previously emigrated to the United States, had been found fighting in our- ranks, as a soldier, in Canada, and upon his return home, had been demanded by the British government: on their principle of perpetual allegiance, he was still a subject, and had committed treason; upon the principle of Grotius, we must have surrendered him, because he had committed, according to their laws, a crime against the state.
Let us put another case. Suppose that, in the struggle now going on in Texas, an American citizen (of whom we have many) should be found fighting against the authority of Santa Anna, and upon his return home should be demanded. Here, too, according to the rule of Grotius, we must de
The second question is, whether the judicial officers of the United States have any authority to act in relation to it?' Perhaps the conclusion at which I have arrived on the first point, might render a discussion of the other unnecessary; but as it was argued, and has been considered, and as I may have fallen into error on the first point, I will very briefly notice it. As a general proposition, the judicial power of a government is created for the purpose of executing its own laws. If in deciding upon a foreign contract, the' courts of another country construe it according to the law of the place where made, and intended to be executed; as, for example, to give the interest there allowed, this is not the execution of a foreign law; but of the law of the court, which as to this case, adjudges that as the intention of the parties. As to criminal laws, I believe it is settled every where, that one country will not execute the penal laws of another; not even its revenue laws. So far is this carried in this country, that the courts of one state will not execute the penal laws, either of a sister state, or of the federal government. The crime charged against the prisoner, is one against the laws of Portugal, not against the United States. Over the crime itself, then, the judicial officers of the United States clearly have no jurisdiction. If they have no jurisdiction over the crime, whence can they derive the authority to arrest the party charged with that crime, and detain him, with a view to a trial therefor, in another and foreign jurisdiction? I do not here enter into the second question discussed in Jonathan Robins’ Case, whether the duty to be performed there, was a judicial one. That was the ease of a treaty. The constitution extends the jurisdiction of its judiciary, to all cases arising under treaties, &c. That, therefore, is a totally distinct question from this, where there is no treaty, and where a judicial officer is asked to arrest, or, what is the same thing, to detain a person charged with the commission of a crime, not against the government, whose judicial power it is his duty to execute, nor for a trial, in any of the courts of that government, but for one to be had before the tribunals of a foreign country, against whose laws the alleged crime has been committed.
Let us look, for a moment, at the legislation of congress, upon the subject of arrest in criminal cases. We are authorized to arrest
In conclusion I will say, that the counsel who made this application, has presented it in the strongest light, which the principles of public law or the authorities enabled him to do; yet after the best reflection which I have been able to bestow upon the subject, in the short time which I have had to consider it, I am of opinion, that without a treaty stipulation, this government is not under any obligation to surrender a fugitive from justice, to another government, for trial; and that, as a judicial officer of the United States, I have no authority whatsoever, either to arrest or detain, with a view to such surrender. It follows, as a consequence, that the prisoner is entitled to his discharge; and he is discharged accordingly.