17 F. Cas. 975 | E.D. Pa. | 1863
The opinion of the Court was delivered by
Of the treaties now in force on the subject of extradition, the earliest is that of 1842, with Great Britain. Its form has, in general, been followed in the others. An occasional recurrence to it will prevent their phraseology from being applied with too much latitude. But an adherence to it so close as to exclude reasonable cosmopolitan interpretation of them should be not less avoided as too narrow.
In this case, at the hearing in July last, the proofs of identity showed that the person arrested was the party against whom the charge is made on behalf of the Government of Saxony. There could be no doubt that he was the person who, under a former application made on the part of the same government, on the same grounds, before the judge of like jurisdiction for the Southern District of Ohio, had there been
The other questions were those of the sufficiency of the charge, and of the sufficiency of the proofs.
How, and how far, the crime in question must have been the subject of a charge or public accusation, in the country whose government asks the extradition, does not appear distinctly in the treaties, or in any opinion of the Supreme Court of the United States. The subject has been discussed elsewhere, but not satisfactorily. Its. difficulties, are, in part, removed by the acts of Congress of 1848 and i860. The argument that there must have been some authorized public
In this case, the proceedings in Saxony, through the verification of the Saxon authorities, attested by the Consul General of the United States at Leipsig, were duly authenticated; and it sufficiently appeared that before the Saxon tribunals having cognizance of the question whether this party should be apprehended and committed for trial, the depositions of which copies were certified would have been receivable in evidence.
The remaining question was whether these depositions would, within the meaning of the treaty, have sufficed to justify his apprehension and commitment for trial under a charge of forgery, if the offense had been committed here. They fully sufficed to prove the act which was charged. Such an act, wherever punishable as> a crime, is properly classed as a specific offense under the general head of forgery. In the jurisprudence of Pennsylvania, at the date of the treaty with Saxony, this act would not have been punishable as a crime. But before its commission in Saxony, the Pennsylvania statute of March 31, i860, § 169, had made such an act indictable and punishable as a misdemeanor.
In the series of treaties which have been mentioned, certain offences, including forgery, are named with reference to their definitions in the system of general jurisprudence. But the treaties require the specific application of the definitions to be conformable, in particular cases, to the jurisprudence and legislation of the respective places where the parties may be arrested; and likewise require the application of local rules of decision as to the sufficiency of the evidence. The act in question — though generically forgery wherever criminal—
There is no jurisprudence or common law of the Government of the United states. (See 7 Cranch, 32; 1 Wheaton, 415; 8 Pet. 658; 3 How. 104.) No legislation of their government, independently of the jurisprudence and legislation of the several States, can have been expected by those who made the treaties ever to. give specific definition of certain crimes mentioned in them. No such legislation as to forgery of private writings, which is the offense here charged, can have been expected. As to this crime, and others., local definitions and rules might be not less different in Ohio and in Pennsylvania than in Scotland and in England, or might be more different. In framing the treaty of 1842 with Great Britain, these local differences must have been mutually considered by the governments of the two. contracting nations.
I thought that the decision of the case could not be affected by the date of the Pennsylvania statute. It was posterior to the treaty with Saxony, but anterior to the commission of the offense charged. Local specific definitions of an offense, which may be safely applied, are those in force, both when it was committed and at the time of hearing. If their application is not ex post facto, the question whether they were in force at the dates of the respective treaties cannot be material. Diplomatic arrangements whose effect may depend upon internal regulations of the contracting States, are almost necessarily dependent more or less upon prospective legislation. Such regulations are almost always liable to- change in the course of internal administration. They may also undergo modification in order to meet occasional requirements of international comity, or of the conventional arrangements. themselves. These requirements may be only honorary; and the legislation consequently optional. But the treaties require that such definitions and rules as are
The questions which have been reviewed, whether difficult • or not, were important; and upon one, if not more of them, differences of opinion were supposed to exist. At my request, the case has been reargued on all the points before the Judge of the Supreme Court for the circuit and myself. The only question which has caused us any embarrassment is that of the effect of the party’s discharge in Ohio. Had that been a decision upon the legal merits of the case, pronounced after full investigation and consideration of them, our opinion might probably have been that a renewal of the Saxon Government’s application should not be entertained. But the proceeding there, so far as we know, consisted in the mere summary rejection of the evidence offered, for what reason we are not informed. The same evidence, with the proofs of identity, has been, so far as appears, considered for the first time under the present application. The act of 1848 should be interpreted, and the regulations prescribed in it administered, with reference to the international character of the obligation of extradition. The conventional obligation is not fulfilled where an application for extradition is, in any mode or degree, slighted by one of the contracting governments to which it has been properly addressed. This must be considered in a case like the present, where provisions of the treaty are executed through judicial organs of the latter government. We therefore think, that until a decision founded upon adequate investigation and full consideration, the proceedings, under successive applications for extradition are, in effect, if not in character, analogous to successive preliminary hearings before local committing magistrates under ordinary charges of crime.
On all the other points of the case we are of the opinion which I entertained at the close of the former hearing.
The prisoner was accordingly remanded into custody, to await the order of the President.