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Programme of the Fourth International Conference of the American
Republics to be held at Buenos Aires, Argentine Republic, July 9, 1910. I. The organization of the Conference. II. Commemoration of the Argentine National Centenary and of the
Independence of the American Republics as suggested by the fact that many of those nations celebrate their national cen
tenaries in 1910 and neighboring years. III. Submission and consideration of the reports of each delegation
as to the action of their respective governments upon the Resolutions and Conventions of the Third Conference held at Rio de Janeiro in July, 1906, including a report upon the results accomplished by the Pan-American Committees and the con
sideration of the extension of their functions. IV. Submission and consideration of the report of the Director of the
International Bureau of the American Republics, together with consideration of the present organization and of recommendations for the possible extension and improvement of its effi
ciency. V. Resolution expressing appreciation to Mr. Andrew Carnegie of
his generous gift for the construction of the new building of the
American Republies in Washington. VI. Report on the progress which has been made on the Pan-American
Railway since the Rio Conference, and consideration of the possibility of cooperative action among the American Republics
to secure the completion of the system. VII. Consideration of the conditions under which the establishment of
more rapid mail, passenger and express steamship service be
tween the American Republics can be secured. VIII. Consideration of measures which will lead to uniformity among
the American Republies in consular documents and the technical requirements of customs regulations, and also in census and
commercial statistics. IX. Consideration of the recommendations of the Pan-American
Sanitary Congresses in regard to Sanitary Police and quarantine and of such additional recommendations as may tend to
the elimination of preventable diseases. X. Consideration of a practicable arrangement between the American
Republics covering patents, trade-marks and copyrights.
XI. Consideration of the continuance of the treaties on Pecuniary
Claims after their expiration. XII. Consideration of a plan to promote the interchange of professors
and students among the universities and academies of the
American Republics. XIII. Resolution in appreciation of the Pan-American Scientific Con
gress held in Santiago, Chile, 1909. XIV. Resolution instructing the Governing Board of the International
Bureau of the American Republics to consider and recommend the manner in which the American Republics may see fit to
celebrate the opening of the Panama Canal. XV. Future Conferences.
BAIL IN EXTRADITION CASES
The recent case of In re Mitchell, decided by the District Court for the Southern District of New York, June 30, 1909 (see Judicial Decisions, this JOURNAL, p. 484), involved the increasingly recurring question of the right of our courts to grant bail in extradition cases. In this case the District Judge, on the authority of Wright v. Henkel, 190 U. S. 40 (see this JOURNAL, Vol. 1, p. 202), granted bail to a defendant held under extradition process initiated by the Government of Great Britain upon what seems to have been a charge of larceny committed within the Dominion of Canada. The judge justified his action in granting bail in this particular case on the ground that
It seems to me that the hardship here upon the imprisoned person is so great as to make peremptory some kind of enlargement at the present time, for the purpose only of free consultation in the conduct of the civil suit upon which his whole fortune depends. Those special circumstances alone move me to allow him to bail, and his enlargement is to be limited strictly to the period of that suit. As soon as that is terminated he must be returned to the Tombs prison to await the determination of the commissioner upon the extradition proceedings. I am also moved to this disposition from the fact that he has long known of these proposed proceedings and has made no effort to avoid them or to escape.
Waiving for the moment the question as to whether or not the interpretation placed by the court upon Wright v. Henkel is correct, it should be observed that in granting bail to the fugitive the court does not appear to have taken into consideration or at least to have been controlled by any of the ordinary questions usually considered in granting bail in criminal cases. For example it seems to be quite well established
that in matters of criminal jurisdiction, the granting of bail depends, in a large measure, upon the question of the probable guilt or innocence of the person accused, the courts having, however, liberally construed the rule regarding the conclusiveness which must in such cases be shown upon the question of guilt. The courts also carefully consider in addition to this question of the conclusiveness of the guilt of the accused, further questions regarding the nature of the offense and the punishment which is likely to be imposed, as these will be determinative factors in forecasting the probable appearance of the accused at the trial should he be admitted to bail. Moreover on the side of the accused, the courts, upon appropriate occasions take into consideration the question of the physical condition of the accused and the probable effect upon him of the confinement necessary to imprisonment. Therefore granting that fugitives from justice are entitled to bail in international extradition proceedings, it would seem that the release of a prisoner held under extradition procedure should be controlled by similar proceedings to those which govern matters of bail in ordinary criminal proceedings, with perhaps this apparent modification in the matter of the conclusiveness which must be shown, namely, that since in order to obtain extradition it is not necessary for the demanding government to prove the actual guilt of the accused but only to make out a prima facie case against him in order to be entitled to his surrender, it would seem that the prima facio case being made, that degree of conclusiveness has been established in those proceedings which should preclude the granting of bail under the general rules governing bail in criminal cases. Therefore, to grant bail, as in this case, merely because detention works a hardship upon the fugitive in the matter of a civil suit seems a somewhat extraordinary procedure, even considering that extradition cases are bailable, and appears to make a precedent which may well hamper extradition proceedings, and indeed if followed generally will doubtless result in defeating the very purpose of extradition treaties. It will be a poor counsel who can not make out a case of hardship because of the imprisonment of the accused.
It is believed, however, that, notwithstanding this case, the weight of authority is against the granting of bail in extradition cases, and that a fair interpretation of the decision of the Suprme Court of the United States in Wright v. Henkel scarcely leads to the conclusion reached by District Judge Hand in the case under discussion.
The federal statutes under which the judicial officers operate in grant
ing bail to fugitives, so far as they affect matters of international extradition, read as follows:
Sec. 1014. For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case. And where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had.
Sec. 1015. Bail shall be admitted upon all arrests in criminal cases whare the offense is not punishable by death: and in such cases it may be taken by any of the persons authorized by the preceding section to arrest and imprison offenders.
Sec. 1016. Bail may be admitted upon all arrests in criminal cases where the punishment may be death; but in such cases it shall be taken only by the Supreme Court or a circuit court, or by a justice of the Supreme Court, a circuit judge, or a judge of a district court, who shall exercise their discretion therein. having regard to the nature and circumstance of the offense, and of the evidence, and to the usages of law.
It will be noted that under these statutes the question of granting bail is for determination" by any justice or judge of the United States, or by any commissioner of a Circuit Court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State” (R. S., § 1014); that by section 1016 it is provided that
all arrests in criminal cases where the punishment may be death” bail" shall be taken only by the Supreme Court or a Circuit Court, or by a justice of the Supreme Court, a circuit judge, or a judge of a District Court, who shall exercise their discretion therein;" and that by section 1015 it is provided that “bail shall be admitted upon all arrests in criminal cases where the offense is not punishable by death; and in such cases it may be taken by any of the persons authorized by the preceding section to arrest and imprison offenders."
It will be observed from the provisions of these statutes that, at least so far as the persons who may grant bail are concerned, the statute specifically provides the only persons who have the right to grant bail in criminal matters ; that therefore the right of an individual in a given case to grant bail must be derived from the statute; and it would seem to follow that if the right to grant bail is not specifically given to a particular individual, such individual may not extend bail. This seems clear from the wording of the statute.
Will the same rule hold as to the cases in which bail may be granted ? Some of our courts have answered this question in the affirmative. In In re Carrier, 1893, 57 Federal Reporter, 578, where the fugitive, who was accused of larceny in the Dominion of Canada (a case on all fours with the present), sought to secure bail, the court said:
It is not a question whether larceny is a crime bailable at common law, or by our law, or by the law of Canada. The proceeding stands upon the statute only, and it is believed that no departure can be made from the statute in any substantial manner. It is said that in matters not mentioned in the statute the practice should be according to the course of our law. The matter of admitting to bail is not a question of practice. Since the time of Edward I. it has been regulated by statute; and, in our day, bail is not allowed in any case except in pursuance of some statute.
Ten years later, in the case of In re Wright, 1903, 123 Federal Reporter, 463, 464, the court, in passing upon the right of bail in extradition cases, said:
4. The opinion of Lord Russell in Queen v. Spillsbury, 2 Q. B. D. (1898) 615, upon which petitioner principally relies, and which holds that “the Court of Queen's Bench has, independently of statute, by the common law, jurisdiction to admit to bail,” is not persuasive. The opinion concludes with the statement: “ This inherent power to admit to bail is historical, and has long been exercised by this court, and, if the Legislature had meant to curtail or circumscribe this well-known power, their intention would have been carried out by express enactment.” The Circuit Courts of the United States, however, have no such historical heritage. * These courts are creatures of statute, and they have only so much of the judicial power of the United States as the acts of Congress have conferred upon them.” Bath County v. Amy, 13 Wall. 244, 20 L. Ed. 539.
The Supreme Court did not, however, fully endorse these views, and Mr. Chief Justice Fuller limited the doctrine, thus laid down by Judge Lacombe, as follows:
We are unwilling to hold that the Circuit Courts possess no power in respect of admitting to bail other than as specifically vested by statute, or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts