The evidence must make out a prima facie case that the crime referred to in the requisition has been committed and that it is one of the crimes specified in the treaty. The determination of the examining officer is as a general rule final as to evidence, but may be revised as to form and procedure. These questions, however, are beyond the scope the ratification of the treaty, but dence settled. Benson vs. Mcsubsequent to its conclusion; other Mahon, 127 U. S. 457, followed. points of practice discussed, and prisoner held. Treaty with Belgium of 1874. 4 In re Carrier, U. S. Dist. Ct. Colo., 1893, 57 Fed. Rep. 578, HALLETT, J. Held that the prisoner remanded could not be admitted to bail and that there was no right under proceedings for extradition to demand that the prisoner could be admitted to bail. The extradition acts of 1789, 1848 and 1882 were all considered in this action, and the judge held that it was not a question of whether larceny was bailable at common law, but whether it was so under the statutes, and held that it was "the intention of Congress to regulate all proccedings in extradition by special act, leaving nothing of substance to be borrowed from the general course of criminal procedure. Inasmuch as there is not in the act of 1848 or in any of the amendatory acts any provision for bail pending a hearing, under those acts the decision of the commissioner seems to have been correct, and the writ will be refused.” The leading cases in the Supreme Court on the points mentioned in this section are: Benson vs. McMahon, U. S. Sup. Ct. 1888, 127 U. S. 457, MILLER, J., affirming In re Benson, U. S. Cir. Ct. S. D. N. Y. 1888, 34 Fed. Rep. 649, LacOMBE, J. Forgery defined and construction of extradition provisions in treaty with Mexico of 1861. Neely vs. Henkel, U. S. Sup. Ct. 1901, 180 U. S. 109, HARLAN, J., and see entire opinion quoted in note A. to § 107, vol. I, pp. 178, et seq. Other cases involving the same points are: In re Behrendt, U. S. Dist. Ct. S. D. N. Y. 1884, 23 Blatchf. 40. BROWN, J. Extradition proceedings held sufficient and prisoner remanded. In re Breen, U. S. Cir. Ct. S. D. N. Y. 1896, 73 Fed. Rep. 458, LACOMBE, J. Procedure and proof. In re Bryant, U. S. Cir. Ct. S. D. N. Y. 1897, 80 Fed. Rep. 282, LACOMBE, J. (affirmed U. S. Sup. Ct. 1897, 167 U. S. 104, BROWN, J.). Forgery, larceny, embezzlement, defined. Sufficiency of evidence. Prisoner remanded. In re Charleston, U. S. Dist. Ct. Minn. 1888, 34 Fed. Rep. 531, NELSON, J. Proceedings of commissioner holding a prisoner arrested for extradition under treaty with Great Britain sustained. Certificates of consul to deposition held sufficient. In re Luis Oteiza y Cortes, U. S. Sup. Ct. 1890, 136 U. S. 330, BLATCHFORD, J., affirming In re Cortes, U. S. Cir. Ct. S. D. N. Y. 1890, 42 Fed. Rep. 47, LACOMBE, J. Points Cook vs. Hart, U. S. Sup. Ct. of procedure and practice and evi- | 1892, 146 U. S. 183, BROWN, J. of this book and the cases cited in the notes are only a few of the many decisions which can be found by examining the authorities cited and the digests. Extradition is so essentially one of those questions in which the safety of the Union is involved that in a conflict between Federal and State juris part was demanded, that the offense for which he was required to procure extradition was committed within the period of the treaty; that under such instructions and such telegrams, not only was this probable, but the contrary was highly improbable; and that had he suffered the accused to escape In re Cross, U. S. Dist. Ct. N. C. 1890, 43 Fed. Rep. 517, SEYMOUR, J. Castro vs. De Uriarte, U. S. Dist. Ct. S. D. N. Y. 1832, 12 Fed. Rep. 250, and 1883, 16 Fed. Rep. 93, BROWN, J. Defendant's demurrer overruled where plaintiff sued Spanish Consul in New York for false imprisonment alleging that extradition proceedings had been instituted through a failure to proceed upon maliciously. Subsequently the case was tried and verdict directed for defendant. A motion for new trial was denied. It was held that it was necessary for a public officer to act (16 Fed. Rep 101). In regard to the question of time when the offence was committed the opinion says on page 100: "The treaty provided that it should not apply to any offense committed before its date, that is, 1877. In this exigency, the defendant, being informed by the commissioner that the precise date of the offense was immaterial, provided that it were within the period of the treaty, it was considered under the telegram for extradition that the offense was undoubtedly committed within the treaty period, and probably about the time of his escape; and the complaint was accordingly written out upon information and belief, stating that the time of the offense was on or about September 25, 1881." the possible but improbable contingency that the date of the offense was prior to the treaty, he would have been justly subject to the charge of negligence of official duty had the crime been committed within the treaty period. As that was the only reasonable inference under the circumstances, the complaint was not without probable cause, as it was also without malice." In re De Giacomo (surnamed Cissarielo) U. S. Cir. Ct. S. D. N. Y. 1874, 12 Blatchf. 391, BLATCHFORD, J. Held, that clauses in the extradition treaty with Italy of 1868 would not be considered as an ex post facto law so long as they related to the surrender of fugitives for crimes committed prior to the treaty. In re Farez (No. 1), U. S. Dist. Ct. S. D. N. Y. 1869, 7 Blatchf. 34, Fed. Cas. 4644, BLATCHFORD, J. In re Farez (No. 2), U. S. Dist. Ct. S. D. N. Y., 1870, 7 Blatchf. 345, Fed. Cas. 4645, BLATCHFORD, J. The judge did not consider that malice had been proved, and held that, even where the crime was not proved "under the circumstances, where immediate action on his General rules of procedure and In re Farez (No. 3), U. S. Dist. Ct. S. D. N. Y. 1870, 7 Blatchf. 491, Fed. Cas. 4646, Woodruff, J. diction the authority of the Federal officers will be sustained. The uniform rule adopted by the United States, and in fact by evidence discussed; prisoner per- In re George Fowler, U. S. Dist. Ct. S. D. N. Y. 1880, 18 Blatchf. 430, BLATCHFORD, J. Points of procedure and evidence settled; prisoner remanded. In re Henri ch, U. S. Dist. Ct. S. D. N. Y. 1867, 5 Blatchford, 414, Fed. Cases, 6369, SHIPMAN, J. Points of procedure and practice settled; prisoner remanded. In re Herris, U. S. Dist. Ct. Minn. 1887, 32 Fed. Rep. 583, NELSON, J. Reversed U. S. Cir. Ct. Minn. 1887, 33 Fed. Rep. 165, BREWER, J. Questions of practice, procedure, and as to who is authorized to institute proceedings, discussed and settled. Ex parte Hibbs, U. S. Dist. Ct. Ore. 1886, 26 Fed. Rep. 421, DEADY, J. Questions as to definition of forgery and points of practice and jurisdiction settled. In re Kelly, U. S. Dist. Ct. Minn. 1885, 25 Fed. Rep. 268, NELSON, J. Points of procedure, evidence and practice reviewed and prisoner discharged, but see same case, 1886, 26 Fed. Rep. 852, BREWER, J., when prisoner was held on second examination after re-arrest, objections as to second examination being overruled. Also held (26 Fed. Rep.) that the authority of a party representing a foreign government is a matter to be inquired into before the Commissioner, and any person whom the foreign government authorizes is a proper person to appear and prosecute. In re Krojanker, U. S. Cir. Ct. S. D. N. Y. 1890, 44 Fed. Rep. 482, LACOMBE, J. Prisoners held on the evidence and remanded for extradition. Ex parte Lane, U. S. Dist. Ct. Mich. 1881, 6 Fed. Rep. 34, BROWN, J. Practice points, procedure, evidence, questions of information and belief, passed upon and prisoner discharged. In re Ludwig, U. S. Cir. Ct. S. D. N. Y. 1887, 32 Fed. Rep. 774, LaCOMBE, J. "Held. that it is within the discretion of the Commissioner to adjourn the hearing of extradition proceedings on motion of the sovereignty making the demand for the accused, and the prisoner is not entitled to be discharged from custody on habeas corpus on the ground that the adjournment is unreasonably long, unless it is made to appear that the Commissioner has abused his discretion." Citing Re MacDonnell, 11 Blatchf. 100. Ex parte McCabe, U. S. Dist. Ct. Tex. 1891, 46 Fed. Rep. 363, MAXey, J. An American female citizen arrested on extradition proceedings in Texas and held for extradition on the request of the Mexican government, was discharged on the ground that the warrant had not been legally issued as to some points of practice, but the District Judge went further and held that the prisoner should also be discharged on the ground that under For note 6 see p. 267. 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 treaty contained the clause "neither of the contracting parties shall be bound to deliver up its own citizens under the stipulation of this treaty." 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 subsequently 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 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, was brought up on habeas cor The principal question involved in this case was the right to arrest a British subject upon a British vessel. The commissioner held that he had jurisdiction. The Circuit 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 regard to the right to hold the prisoner, although arrested on a British ship, the court says (pp. 626-627): "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 remembered that the application for 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 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 cer- questions of evidence settled, intainly would be an extraordinary cluding the manner in which the intrepretation of the law that would declaration of a dying woman could determine that, under the treaties be admitted. Prisoner held. and laws relating to extradition, a In re Palmer, U. S. D. C., warrant for the arrest of a British Penna. 1873, Fed. Cas. 10,679, Cadsubject could not be made upon a WALADER, J. Definition of murBritish 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 ex-him to return to the country from amination. 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 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. |