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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 facie 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 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. 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 " upon 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."

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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

may not in any case, and whatever the special circumstances, extend that relief. Nor are we called upon to do so as we are clearly of opinion, on this record, that no error was committed in refusing to admit to bail, and that, although the refusal was put on the ground of want of power, the final order ought not to be disturbed. [Wright v. Henkel, 1903, 190 U. S. 40, 63; cited and approved: In re Ah Tai, (1903) 125 Federal Reporter 795, 797; In re Sum Poy, (1904) 128 Federal Reporter 974, 975; United States v. Fah Chung, (1904) 132 Federal Reporter 109, 112.]

While in the principal case Judge Hand did not quote the exact language of Wright v. Henkel upon which he relied, he doubtless had in mind this expression of the court, the only one indeed in the opinion that suggests a basis for his opinion, and in this connection we may be permitted the following observations:

1. In the first place, this declaration of the learned chief justice may be fairly regarded as obiter, since, as a matter of fact, the court refused to disturb the ruling of the lower court declining to grant bail in this

case.

2. The declaration is not an affirmative statement that bail is grantable in extradition cases, but is a statement that the Supreme Court is unwilling to hold that it is not grantable in extradition cases, which is followed, in the same breath, by the statement that they do not hold so and that they are not called upon so to do.

It is difficult therefore to see in this declaration any justification for the broad and unqualified ground taken by the court in the principal

case.

Mr. Chief Justice Fuller did, however, make an affirmative statement upon the question already referred to above as to whether or not the statutes of the United States authorized the granting of bail in extradition cases, and upon this point he reached a negative conclusion. In the course of his opinion he said:

By section 1015 of the Revised States it is provided: "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." But this must be read with section 1014, the preceding section, and that is confined to crimes or offenses against the United States. Rice v. Ames, 180 U. S. 371, 377. These sections were originally contained in one section. Judiciary Act of 1789, 1 Stat., p. 91, c 20, § 33.

Not only is there no statute providing for admission to bail in cases of foreign extradition, but section 5270 of the Revised Statutes is inconsistent with its allowance, after committal for it is there provided that if he finds the evidence sufficient, the commissioner or judge “shall issue his warrant for the commitment of

the person so charged to the proper jail, there to remain until such surrender shall be made."

And section 5273 provides that when a person is committed "to remain until delivered up in pursuance of a requisition," and is not delivered up within two months, he may be discharged, if sufficient cause to the contrary is not shown.

The demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligations to make the surrender; an obligation which it might be impossible to fulfill if release on bail were permitted. The enforcement of the bond, if forfeited, would hardly meet the international demand; and the regaining of the custody of the accused obviously would be surrounded with serious embarrassment. And the same reasons which induced the language used in the statute would seem generally applicable to release pending examination. [U. S. 190, 61-62.]

In the earlier case of Rice v. Ames, which the Chief Justice cited and relied upon, Mr. Justice Brown commented upon the same point as follows:

Provision is made by Rev. Stat. sec. 627 for the appointment of commissioners of the Circuit Court, now called United States commissioners, act May 28, 1896, c. 252, sec. 19, 29 Stat. 140, 184, who shall exercise such powers as may be conferred upon them. By Rev. Stat., sec. 727, they are vested with such authority "to hold to security of the peace and for good behavior in cases arising under the Constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective States, in cases cognizable before them." This evidently defines the extent of their powers and not the mode in which such powers are to be exercised. By section 1014, they are vested with the power to arrest, imprison or bail offenders "for any crime or offense against the United States " "agreeable to the usual mode of process against offenders in such State," that is, the State wherein the offender "may be found." That this has no application to continuances before commissioners in extradition proceedings is evident, first, by the fact that the section is confined to crimes or offenses against the United States, and, second, because it refers only to the usual mode of process against offenders in such State, and not to the incidents of the examination. To hold that the commissioner is confined in the matter of continuances to the methods prescribed for justices of the peace and other magistrates of the particular State would be utterly destructive of his power in cases arising beyond the seas, where weeks might be required to obtain the attendance of witnesses, or the procurement of properly authenticated depositions for use upon the examination. Clearly there is nothing either in the treaty or the statutes requiring commissioners to conform to the State practice in that regard. The only requirement seems to be that arising from the tenth section of the Ashburton Treaty, that the fugitive shall only be surrendered "upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged, shall be found, would justify his apprehension and commitment for trial, if the crime or offense had there been committed. [180 U. S. 377, 378.]

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