62 F. 964 | N.D. Cal. | 1894
(orally). My jurisdiction in this case over the subject-matter and the persons accused is regulated and controlled by the treaty between the United States and the republic of Salvador, and the statute of the United States passed to execute such treaty and other treaties that may have been entered into by the United States. Therefore, in determining whether or not I have jurisdiction of the persons of the accused in this case, I must go to the law of the United States and the treaty, and determine from them what the jurisdiction is, and the limitations that have been placed upon it. The treaty has been referred to, and will again be cited upon this subject. Article 1 of the treaty between this country and Salvador is as follows:
“The government of the United States and the government of Salvador mutually agree to deliver up persons who, having been convicted of or charged with the crimes specified in the following article, committed within the jurisdiction of one of the contracting parties, shall seek an asylum or be found within the territories of the other.”
Section 5270, Rev. St. (Act Aug. 12, 1848), under which treaties of extradition are carried into effect by the officers of the United States, provides that:
“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, 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 bo brought before such justice, judge, or commissioner, to the end that the evidence of criminality may be heard and considered,” etc.
Under the provision of this statute and the treaty, complaints were made before me, and warrants of arrest issued. The warrants were placed in the hands of the marshal. The marshal has made return to these warrants that he found these accused persons in this district, and brings them before the court. As is admitted by both sides, primarily this gives me jurisdiction to inquire whether or not
As has been properly observed by counsel for the government of Salvador, there is a difference in the application of the law to interstate rendition cases and international extradition cases. This is clearly stated by Judge Jenkins in the case of In re Cook, 49 Fed. 836. So far as the rendition of fugitives between the states is concerned, the proceedings are governed by section 5278, Rev.- St., which regulates the procedure and fixes the limitation of the court with respect to such matters. With respect to international extradition, I must consult the treaty, as I said before, and the acts of congress governing the proceedings, and such principles of law as have been declared by the courts. The question is the proper application of such principles of law. We must be very careful in considering the principles that have been declared by the courts, and apply them properly to facts to which they relate. The Case of Watts, reported in 8 Sawy. 370, 14 Fed. 130, has been cited. The Case of Rauscher, reported in 119 U. S. 407, 7 Sup. Ct. 234, has also been cited. The Case of Rauscher follows after the Case of Watts, and refers to the decision in that case. The Case of Watts was briefly this: Watts was indicted in this court for crimes arising under the laws of the United States. Watts fled to England. He was extradited,, and brought back to this district It was claimed on his behalf that he could only be tried for the crimes for which he had been extradited. Judge Hoffman held that an extradited fugitive could not, under the treaty of 1842 between the United States and G-reat Britain, be held to answer for an offense for which his surrender could not have been asked, and would not have been granted. This question afterwards came up before the supreme court of the United States in the Case of Rauscher. In that case, Rauscher had been indicted upon a charge of murder committed upon the high seas within the admiralty and maritime jurisdiction of the United States. He fled to England. He was extradited, and brought back to New York. The question in that case arose whether or not he could be tried upon the charge of beating and wounding a sailor on board a ship, it being admitted that the same witnesses and substantially the same testimony delivered in the case of beating and wounding would have been delivered in the case of murder. There were other questions involved in that case. The supreme court of the United States, following the Cases of Watts and others, held that
“Upon a review of these decisions” — in which the Cases of Watts and others are reviewed — “upon a review of these decisions of the federal and state*968 courts, to which may be added the opinions of the distinguished writers which we have cited in the earlier part of this opinion, we feel authorized to state that the weight of authority and of sound principle are in favor of the proposition that a person who has b'een brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings.”
Following this case comes the Case of Kerr, the facts being as I have stated. The supreme court says, in concluding the opinion in the Kerr Case:
“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 guaranty 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 (1829) 9 Barn. & C. 446; Lopez and Sattler’s Cases, 1 Dears. & B. Cr. Cas. 525; State v. Smith (1829) 1 Bailey, 283; State v. Brewster (1835) 7 Vt. 118; Dow’s Case, (1851) 18 Pa. St. 37; State v. Ross (1866) 21 Iowa, 467; The Richmond v. U. S., 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 the moral aspect of the case, which we cannot here consider.”
'The prisoner himself cannot set up the mode of his capture by way of defense. Mahon v. Justice, 127 U. S. 700-717, 8 Sup. Ct. 1204. It is contended that, while this may be the law with respect to a case where a person is brought from a foreign country to this country for trial, it is not applicable to a case where a person has been found in the United States, and is to be extradited or returned to the country from whence he came. Still, the principles of law may be the same with respect to the two classes of -cases. The fact is, there is no case in the books which presents precisely the same state of facts as we have in this case. As I said in the beginning, it is therefore necessary for us to apply to this case such principles of law as we may find applicable. The question is as to whether or not the principle involved in the Case of Kerr, as distinguished from the Case of Kauscher, is applicable to this case. It seems to me that, if anything, there is more of a limitation upon the judge in
“It is an elementary principle of criminal law that a court which has obtained jurisdiction of the person of the accused will not inquire into the means by which that jurisdiction was acquired. The mere fact of jurisdiction is all with which it is concerned. As was said above, a fugitive who has been kidnapped in a foreign country, and brought, forcibly and against his will, into the jurisdiction where he stands accused, will not be released on that ground, although the act of kidnapping is an offense against the government within whose territory he is found, as well as a plain violation of his personal right to freedom from arrest except by due process of law. So, too, the fact that an arrest is procured by fraud, or the employment of other illegal means to bring the criminal within the jurisdiction, will not entitle him to discharge. Whatever may be the illegality of.the arrest in the place where made, as soon as the fugitive is brought, in pursuance of it, within the jurisdiction of the proper court, that jurisdiction attaches, and the subsequent proceedings are based upon that, without regard to the first arrest When, therefore, the cou'rt has the fugitive within its jurisdiction, it has a perfect right to deal with him as far as its own laws permit, regardless of the fact that by so doing it may cause political complications with the surrendering government. The judiciary have nothing to do with the political relations of the government, these belonging wholly to the domain of the executive, as was acknowledged by Justice Gray in his concurring opinion in the Rauscher Case.”
It seems to me the law here stated is applicable to the case before me; peculiarly so because whatever may be the evidence in this case, as interposed in support of this plea, it relates entirely to political matters, or to matters coming within the jurisdiction of the political department of the government.
I do not think, under any circumstances, it is proper for me to enter into an inquiry as to the conduct of a war vessel of the United States. In this case it appears, so far as the testimony has gone, that the Bennington was sent from this country to Salvador to protect American interests; that she proceeded to execute the commands of the executive department of the government. While there, these persons came on board the vessel, flying from the opposing forces in sight; and took refuge on board this vessel. It might be said with much force that when these persons took refuge on,board of an American man-of-war, they were flying to the territory of the United States, and seeking asylum in the territory of the United States. It has been said that the deck of an American
But it Is said that when these fugitives went on board the Ben-nington they did so with the understanding that they would be transferred to another vessel. When a fugitive seeks an asylum in another territory, it is not for him to make conditions. As well might a person come into this country, and, stepping upon one of our docks, say: “I have come here seeking an asylum, hut I want it distinctly understood that I must be transferred immediately to British Columbia, or some other territory. I am not to remain here.” The political department of the government would say: “If you come seeking an asylum in this country, you come seeking it on such conditions as you find. We make no agreement with persons under such circumstances.” So it may be said with respect to persons coming on board an American man-of-war. When they come there they are subject to ihe rules governing the vessel, — to the directions that may be given to tlie officer in command, — and it is not for fugitives to say whether they shall be placed on shore, or on another vessel. So, there is even much in this view of the case opposed to the plea of jurisdiction.
At all (wonts, on the whole case, its it appears to me, without entering into a critical review7 of these cases in detail, which I have not had the time to examine carefully, I think (he principle of law is as I have stated. The plea to the jurisdiction is therefore overruled, and the objection to the evidence is sustained.
Mr. Page: We had hoped that we might be allowed to take this testimony, in order that when the case is certified, if it be necessary to certify it, these facts might be included in the case presented to the political department.
THE DOUBT: I have considered the possibility of a motion of lhat kind being made. In view of what I have said, — that this plea is peculiarly one that addresses itself to the executive department, and if I shall hold these persons as having conn; within the provisions of (he treaty, and therefore to be extradited, that question may be reviewed by the executive department upon such evidence,—*972 I have determined, in case you make that motion, to allow the testimony to be taken, and certify it with the other evidence in the case.