26 F. 852 | U.S. Circuit Court for the District of Minnesota | 1886
We are prepared to decide the habeas corpus case that was submitted to us two days ago; and I may say both Judge Nelson and myself have given the matter the careful examination which the question demands, and we agree in the conclusion which I shall announce. The petition alleges that the petitioner was arrested on the thirty-first day of August, 1885, by virtue of proceedings Commenced before Mr. Spencer, a commissioner duly authorized; that ■testimony was heard before the commissioner, and the petitioner bound over; that the proceedings and the testimony were certified to the department at Washington, and on the fifth of February the executive issued an order to discharge him; that thereupon a new affidavit was filed charging the same offense, and in pursuance thereof the petitioner was rearrested, and is now in custody while an examination is pending before the commissioner; ahd it is claimed that for three reasons the petitioner should be discharged.
It is insisted, and that is really the principal question, that independent of treaty obligations no proceedings can be had in this eoun-
“It is agreed that the United ¡States and her 13ritannic majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively, made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed in Ihe jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other.”
What is the main purpose and scope of that contract obligation between the two nations ? Is it limited to a mere contract as to the manner in which the alleged criminality shall be 'investigated, or is it, on the other hand, a contract that the alleged fugitive shall be extradited, leaving the details by which the criminality is to be ascertained to the authorities of the respective governments ? It seems to us that the latter is the true intent and purpose; that the alleged fugitive, if his criminality is sufficiently ascertained, shall be surrendered. This is in furtherance of what must be conceded to he a just policy, and it is a policy that has gradually beeomo recognized all over the civilized world; that while this government opens its doors to all citizens of every nation, it does not mean that this country shall become an asylum for the criminals of those nations; that it is for the interest of every nation, and of every individual, that no criminal shall anywhere find an escape from the pursuing hands of justice. It is not a contract that one government shall furnish to other governments one opportunity for investigating,- — ono time for inquiry, —but that it will surrender the alleged criminad if his criminality shall be clearly ascertained. It is conceded law that where one is arrested for a local offense, and a preliminary examination fails for any reason, — such as a defect in the jurisdiction of the examining magistrate, lack of evidence, informality of papers, — that is no bar to a second proceeding.
We do not assent, however, to tho proposition which was suggested that those preliminary examinations for local offenses may be con
We do not question the fact that an extradition requires the assent of both the judicial and the executive, and that the executive is the final tribunal to determine it; and whenever it appears that the executive has said that the alleged offense does not come within the scope of the extradition treaty, or when the executive says he is satisfied that the prosecution is instituted for political reasons, orto gratify private malice, and therefore the offender shall not be extradited, that concludes all further inquiry by the court. But when it is determined by the executive, as in this ease, merely that the testimony presented is insufficient, we think it leaves it as in other cases of preliminary examination, and there can be a second inquiry. The-
It is secondly urged that no mandate has been issued, and that a mandate from the executive is necessary before the judicial authorities can act. Whether a mandate is necessary at all is one of those disputed questions which cannot be said as yet to have been determined. There has been read a case — indeed the only case, I think —in which the question has been presented to the supreme court of the United States. In that case four of the justices held that no mandate was necessary. Throe held that it was, but all agreed that the court bad no jurisdiction in that case, so that what was said was mere dictum on both sides, and there has been as yet no authoritative determination by that court as to the necessity of a mandate. The extradition law may, perhaps, suggest that no mandate is necessary ; for it says:
“Whenever there is a treaty or convention for extradition between the government of the United Htates 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 stare, district, or territory with having committed within the jurisdiction of any such foreign government any of tho crimes provided for by such treaty or convention, issue his warrant for the apprehension of tho person so charged, that he may be brought before, such justice, judge, or commissioner, to the end that the evidence of criminality may be hoard and considered.”
Not “may, upon complaint based upon a mandate., or after the issue of a mandate,” but may “proceed upon complaint made.” Yet, assuming that a mandate is necessary, what docs that mandate mean ? It means simply that the executive department of tho government authorizes the proceeding before the judicial department. A mandate in tliis case was issued. I do not understand that a mandate which puts in motion the action of the judicial department exhausts itself and becomes a dead letter whenever any proceedings had by that department fail. All that the mandate contemplates, and is intended to provide for, is a recognition by the executive that this is a case which comes within the scope of the trendy, and calls for judicial investigation. The question is therefore presented to the judiciary for examination. It remains operative until recalled by tho executive, or he signifies in some way that its functions are exhausted. Here the
The final proposition made is that the complaint is not presented by the proper person. It is sworn to by-, and in his affidavit he swears he is a citizen and a resident of the province of British Columbia, and acts herein for and in behalf of and pursuant to instructions of the government of the Dominion of Canada and the attorney general of British Columbia. The treaty provides that “upon mutual requisitions by them, or their ministers, officers, or authorities.” I think that under the treaty it is not necessary that the attorney general, or any member of the executive department of a foreign nation, should himself come. Any person whom he authorizes, or whom he delegates to act for that government, is a proper person, within its scope, to appear and file a complaint. Generally it would be an unnecessarily severe construction of that treaty to require any member of the executive department of a foreign nation to appear in person, and thus take him away unnecessarily from the discharge of those duties which we may fairly presume devolve upon him at home. It-is enough if any person duly authorized appear in behalf of that government and make complaint. Of course, the question of fact is not settled. That is a matter to be inquired into before the commissioner, — as to whether the party making complaint is thus duly accredited. If it should appear that he was not; that he was simply a private citizen, pursuing this matter for private purposes, — of course the commissioner would act accordingly.
We have given this matter a very careful consideration, owing to the fact that we deem it of importance, and that no previous ease of this kind has arisen. The petition for habeas corpus must be refused, and the petitioner remanded into the custody of the marshal.
I would add that we both are of the opinion that if the commissioner should commit upon this examination, and it should be apparent that he had no clearer or more convincing testimony as to the truth of the charge than was presented before, the court has power to review the testimony, and say that the executive having once passed upon it, the commissioner is bound to follow it; and if he does not, the court will correct his error.