nearly all nations is not to extradite persons charged with political offences, and the surrender will be refused if it appears that the offence charged is of a political nature.

the treaty she should not be deliv-pus. The objections taken were ered for extradition because she that the testimony was insufficient. was an American citizen and the The principal question involved treaty contained the clause "nei- in this case was the right to arrest ther of the contracting parties a British subject upon a British shall be bound to deliver up its vessel. The commissioner held own citizens under the stipulation that he had jurisdiction. The Cirof this treaty." cuit Court held that this finding of the commissioner was not necessarily conclusive upon the Circuit Court but that as a matter of fact the jurisdiction existed.

In re Mac Donnell, U. S. Cir. Ct. S. D. N. Y. 1873, 11 Blatchf. 79, 170; Fed. Cas. 8771, 8772, WOODRUFF, J. Points of practice, burden of proof, conflict of State and Federal Court, sufficiency of evidence passed on; prisoner on first proceeding remanded and subse-626-627): quently discharged.

In re Mc Phun, U. S. Cir. Ct. S. D. N. Y. 1887, 30 Fed. Rep. 57, BROWN, J. Points of practice, procedure and evidence; prisoner discharged. In re Miller, U. S. Cir. Ct. Penna. 1885, 23 Fed. Rep. 32, ACHESON, J. Right to hold escaped burglar extradited under other charge. Right sustained. (Prior to U. S. vs. Rauscher, 119 U. S. 407.)

Muller's Case, U. S. Dist. Ct. Penna. 1833, Fed. Cas. 9913, CADWALLADER, J. Held, that a petitioner, who had been arrested once before and discharged, could be arrested on new proceedings, it appearing that the evidence had not been fully considered at the former hearing.

In regard to the right to hold the prisoner, although arrested on a British ship, the court says (pp.

"In considering the question of jurisdiction of the commissioner in this case, I find, upon the testimony that has been introduced before me, that the accused, when arrested, although upon a British vessel, was, nevertheless, within the territory of the United States. I find further, as a fact, on the testimony that has been presented, that he was seeking an asylum within the United States. These facts bring the petitioner within the provisions of the treaty of 1842 and section 5270 of the Revised Statutes. "The claim, as the Swanhilda was

a

British vessel, her decks were British territory, cannot avail the petitioner in these proceedings. The vessel was within the territorial limits of the United States for all purposes relating to the execution of the treaties and the laws of the United States. It must be re

In re Newman, U. S. Cir. Ct. N. D. Cal. 1897, 79 Fed. Rep. 622, MORROW, J. In this case a prisoner, held for extradition under the treaties of 1842 and 1890 with Great Britain, membered that the application for was brought up on habeas cor-extradition is made on behalf of

For note 7 see 267.

§ 437. Rights of persons extradited to the United States. -In this section only those cases will be cited which have arisen and been decided in the United States after the prisoner

questions of evidence settled, including the manner in which the declaration of a dying woman could be admitted. Prisoner held.

In re Palmer, U. S. D. C., Penna. 1873, Fed. Cas. 10,679, CADWALADER, J. Definition of mur

In re Pederson, U. S. Dist. Ct. S. D. N. Y. 1851, Fed. Cas. 10,899a, BETTS, J. Extradition of deserter refused on special grounds.

People ex rel. Young vs. Stout, N. Y. Sup. Ct. 1894, 81 Hun 336, BRADLEY, J. A prisoner indicted for two different degrees of assault, one of which was extraditable, and the other not, having been extradited and tried and found guilty in the latter degree, cannot be held.

the British government, and it certainly would be an extraordinary intrepretation of the law that would determine that, under the treaties and laws relating to extradition, a warrant for the arrest of a British subject could not be made upon a British vessel within our territory.der and questions of evidence. The In the case of In re Ezeta, 62 Fed. prisoner was remanded, but the Rep. 965, it was held that the pris- Secretary of State refused to issue oner could not set up the mode of the mandate. his capture by way of defense, following the decision of the supreme court in the case of Mahon vs. Justice, 127 U. S. 700, 8 Sup. Ct. 1204. In that case the accused had been brought into port of the United States by a government vessel, and although they had applied to be allowed to leave the vessel at a foreign port, and before coming into the port of San Francisco, it was held that this fact did not affect the question of the jurisdiction of this court over the accused, after they were found within the territory of the United States; and, in passing upon the plea of jurisdiction, I declined to enter upon any inquiry as to the conduct of the navy department in bringing the fugitives to San Francisco, holding that the fact that they were found by the marshal of this district was sufficient for the purpose of the examination. The law determined in that case is applicable to the present case. The petition is therefore dismissed, and the petitioner remanded to the custody of the marshal."

In re Orpen, U. S. Cir. Ct. Cal. 1898, 86 Fed. Rep. 760, MORROW, J.

Rules and procedure points and

In re Reinitz, U. S. Cir. Ct. S. D. N. Y. 1889, 39 Fed. Rep. 204, BROWN, J. A person extradited, tried and acquitted and rearrested immediately on another offense. Held that he could not be arrested for another offense except that for which he was extradited until after a reasonable time had been given him after the acquittal to enable him to return to the country from which he was brought. Right of asylum, numerous cases cited.

In re Risch, U. S. Dist. Ct. Texas, 1888, 36 Fed. Rep. 546, SABIN, J. Prisoner remanded on the evidence, which was held sufficient. Questions of presumption of innocence involved.

has been brought to this country. In the cases cited in the previous section the prisoners objected to the method of their

Ex parte Ross, U. S. Dist. Ct. | motion to discharge denied; points Ohio, 1869, 2 Bond, 252, Fed. Cases, of practice reviewed. First arrest 12,069, LEAVITT, J. Questions of held to be insufficient, but second practice and evidence discussed and arrest sustained. prisoner remanded.

7 Ornelaz vs. Ruiz, U. S. Sup. Ct. 1896, 161 U. S. 502, FULLER, Ch. J. Held, that the discharge of prisoners Ex parte Van Hoven, U. S. Cir. Ct. by a Commissioner on the ground Minn. 1876, 4 Dillon, 412, Fed. that the offence charged was politCases, 16,658, NELSON, J. 4 Dillon, ical was a matter within the power 415, DILLON, J. Prisoner having of the Commissioner which could been discharged and re-arrested not be reviewed on habeas corpus. For additional cases see p. 404, post.

deportation from this country. They were able to do this because the courts had jurisdiction to protect their personal rights. When fugitives from this country are surrendered to the authorities abroad they have the same right to test the validity of the surrender before the courts of the country surrendering them. After they have reached this country they have no right to demand their discharge because the proceedings were illegal in the other country. If, however, they are brought here under treaty stipulations they can only be tried for the offence for which they have been surrendered. The history of the controversy over this question between this country and Great Britain and referred

Prisoners were discharged and the embezzlement, a crime not included appeal of the Mexican Consul therefrom dismissed.

in the Hawaiian Treaty, fled to Honolulu and on request of the United States Minister was surrendered and brought back to California. On habeas he contended he could

In re Ezeta, U. S. Dist. Ct. Cal. 1894, 62 Fed. Rep. 964 and 972 (2 cases), MORROW, J. The right of a government to demand the extra-only be held for an extraditable dition of political prisoners or of persons offending against military law discussed at length in this case which was somewhat complicated by the fact that the prisoners had taken refuge on a naval vessel of the United States and were thus brought to this country.

offence, and that his extradition was improper, the crime not being included in the treaty list. Held that under those circumstances it was presumed that the Hawaiian Government surrendered him from comity and not under treaty. The prisoner was remanded. The right of the government to surrender 1See English statute cited in without a treaty was discussed and note 1 to § 436, p. 261, ante.

§ 437.

2 Ex parte Foss, Sup. Ct. Cal. 1894, 102 Cal. 347, DE HAVEN, J. Petitioner under indictment for

sustained.

See also Ker vs. Illinois, cited in note 9 to this section.

8 United States vs. Rauscher, U. S. Sup. Ct. 1886, 119 U. S. 407, MILLER, J. As this is probably the most important extradition case decided by the Supreme Court, extended reference will be made to it at this point.

The opinion is lengthy, reviewing many conflicting decisions of Federal and State courts; the points decided are stated in the syllabus as follows:

Apart from the provisions of treaties on the subject, there exists no well defined obligation on one independent nation to deliver to another fugitives from justice; and though such delivery has often been made, it was upon the principle of comity. The right to demand it

to in the notes is too long to be told in a brief review of the power of extradition, and the principle is now so well

has not been recognized as among the duties of one government to another which rest upon established principles of international law.

“In any question of this kind which can arise between this country and a foreign nation, the extradition must be negotiated through the Federal government, and not by that of a State, though the demand may be for a crime committed against the law of that State.

"With most of the civilized nations of the world with which the United States have much intercourse, this matter is regulated by treaties, and the question now decided arises under the treaty of 1842 between Great Britain and the United States, commonly called the Ashburton Treaty.

"The defendant in this case being charged with murder on board an American vessel on the high seas, fled to England, and was demanded of the government of that country, and surrendered on this charge. The Circuit Court of the United States for the Southern District of New York, in which he was tried, did not proceed against him for murder, but for a minor offence not included in the treaty of extradition; and the judges of that court certified to this court for its judgment the question whether this could be done. Held:

"(1) That a treaty to which the United States is a party is a law of the land, of which all courts, state and national, are to take judicial notice, and by the provisions of which they are to be governed, so far as they are capable of judicial enforcement.

"(2) That, on a sound construction of the treaty under which the defendant was delivered to this country, and under the proceedings by which this was done, and acts of Congress on that subject, Rev. Stat. secs. 5272, 5275, he cannot lawfully be tried for any other offence than murder.

"(3) The treaty, the acts of Congress, and the proceedings by which he was extradited, clothe him with the right to exemption from trial for any other offense, until he has had an opportunity to return to the country from which he was taken for the purpose alone of trial for the offence specified in the demand for his surrender. The national honor also requires that good faith shall be kept with the country which surrendered him.

"(4) The circumstance that the party was convicted of inflicting cruel and unusual punishment on the same evidence which was produced before the committing magistrate in England, in the extradition proceedings for murder, does not change the principle."

As to the right of extradition except under treaties the opinion says (pp. 411, 412):

"Not only has the general subject of the extradition of persons charged with crime in one country, who have fled to and sought refuge in another, been matter of much consideration of late years by the ex

4 For note 4 see p. 272.