Ex parte Van Hoven, 28 F. Cas. 1021

Ex parte Van Hoven

28 F. Cas. 1021 | U.S. Circuit Court for the District of Minnesota | 1876

DILLON, Circuit Judge.

Requisition for the surrender of the petitioner to the Belgium government is recited, in the mandate of the secretary of state, to have been duly made upon the executive authority of this government. Complaint before a duly authorized commissioner was made by the consul-general of Belgium in New York, and a warrant for the apprehension of the petitioner issued, on which he has been arrested and is now in custody, for the purpose, of being taken before the commissioner who issued the warrant, for an examination of the charge against him, made in the complaint.

It is urged that the petitioner is entitled to be discharged on several grounds:

1. That, under the treaty (article 6), the president of the United States is required to issue a warrant for the apprehension of the fugitive, that he may be brought before the proper judicial authority for examination. The object of this provision is that the legal proceedings for the surrender of a fugitive may have the sanction of the executive department. Ex parte Kaine [Case No. 7,597], This is given in this case by the mandate or the secretary of state. In re Earez [Id. 4,-644], Under our.system of the separation of the powers of the government into departments, the warrant of arrest issues from the judicial department, and the substance, spirit, and purpose of the treaty have been complied with in this regard.

2. It is urged that the petitioner is entitled to be discharged because it does not affirmatively appear in the mandate of the secretary of state, or 'in the complaint, that any warrant for the arrest of the petitioner in Belgium, for the crime imputed, ever issued in that country. Under the treaty it may be true that no surrender of the petitioner to the Belgian government can legally be demanded, unless proceedings in that country have been instituted, and a warrant of arrest there issued. Such warrant, and the depositions upon which the warrant issued, must accompany the requisition upon this government for the surrender. Such is the treaty. The judicial department will presume, from the mandate of the secretary of state, that this was done. It may be that if it is shown on the hearing, or at any subsequent stage of the proceedings, that no warrant for the arrest of the petitioner in Belgium ever issued in that country, and no depositions, such as are required by the treaty, were ever made in Belgium, the judicial department of this country, on its power being invoked, would prevent the extradition. Ex'parte Kaine, supra.

3. It is next urged that the complaint is insufficient, because filed by the consul-general, who does not profess to have any personal knowledge of the matters charged against the petitioner, but whose information is derived from telegrams from the Belgian authorities, and certain depositions taken in Belgium, not before us. In re Earez [Cases Nos. 4,643 and 4,640], Unlike the first complaint in this case, the present complaint is specific in the charges made against the defendant. This court cannot hear the case on the merits. It *1025belongs to the commissioner who issued the warrant to decide whether, according to the law and the evidence, the extradition is due pursuant to the treaty. . Under the decisions and practice in the Second circuit, the order of the commissioner may, it would seem, be revised and corrected by the federal courts therein, at the instance of the petitioner. In re Henrich [Case No. 6,3(50]. Motion to discharge the petitioner denied. Ordered accordingly.

■ NOTE. The order of Nelson, J., in this case when before him. was affirmed on appeal; and a petition was presented for another writ of ha-beas corpus, to the circuit court, at the June term, 1876, in the proceeding upon which the foregoing opinion of the* circuit judge was pronounced. Subsequently, the petitioner filed in the circuit comt a plea to the effect that, in fact, no criminal proceedings whatever had ever been instituted in Belgium against him. and that no warrant ever issued, and no depositions had ever been taken in that country. This plea was traversed by the officer having the petitioner in custody, and on a hearing subsequently had before Nelson, J., the warrant of arrest in Belgium, and certain depositions there taken, were produced, whereupon the petitioner was remanded to the custody of the deputy marshal, to he taken for examination before the commissioner who issued the warrant of arrest. In the Albany Law Journal (volume 18, p. 451. July 20, 1878, the reader will find a carefully prepared and valuable article, from the pen of Judge Spear, on the subject of “Extradition from the United States.” The. learned writer states the leading statutable provisions, and collects the principal decisions in this country respecting the executive and also the auxiliary judicial functions involved in the delivery, by the United States, of a fugitive criminal to a foreign government, under treaty stipulations. He concludes his paper in these words: “The law, by thus distributing the legal functions to be performed between the executive and judicial departments of the government, secures to the party accused the highest certainty that he will be surrendered to a foreign government only when all the necessary conditions are present. The judiciary cannot surrender him; and the president cannot do it until the judiciary decides that the case is a proper one for delivery, and even then the president may revise and reject that decision. This furnishes ample protection against any abuse of the extradition power, especially when we add that the writ of habeas corpus, as a means of testing the legality of the proceedings, is always available to the party, if sought before his actual surrender and removal from the country.”