In connection with both these cases, it should be observed that in In re Wright, 123 Federal Reporter, 463-464 (already cited and quoted from above), Circuit Judge Lacombe made the following observations upon the question of the application for bail: The application to admit to bail is denied, briefly, for the following reasons: 1. The only case found in our Reports which deals with the subject of bail in international extradition proceedings is adverse to petitioner. In re Carrier, (D. C.) 57 Fed. 578. 2. Applications to admit to bail in such cases have on several occasions (although not recently) been made to the Circuit Court in this district, and have been uniformly denied, although no opinions appear to have been written. 3. It is not difficult to conceive of some sufficient reason why the United States, having assumed certain treaty obligations, should provide a scheme for carrying them out which should not provide for enlargement on bail; and we find that, whereas the statutes regulating the arrest of persons in one federal district who may be charged with crime in another district provide for taking bail, the statute regulating international extradition makes no such provision. It may be, as stated by Judge Hand, that bail is not infrequently granted in extradition cases within his district, but it would seem that such cases are not reported, and it is therefore impossible to consider the reasons which may have induced the granting of bail in the particular instances to which he refers. The only other reported cases which we have noted in which the right of bail was extended to a fugitive sought under extradition proceedings is equally unsatisfactory with the present case in the matter of the reasoning and grounds upon which the court based its action. In this other case the Supreme Court of Arizona indicated its readiness to grant bail in an extradition case in the following language: The petitioner will be discharged from custody, unless the authorities prosecuting the proceedings desire to take appeal to the Supreme Court of the United States, in which case, the petitioner will be remanded to the custody of the marshal to be released upon his giving bail in the sum of $25,000, under the provisions of Rule 34 of the Supreme Court of the United States. [Ex parte Ramirez, 90 Pacific Reporter, 323.] The rule invoked by the Supreme Court of Arizona in this case reads as follows: Custody of Prisoners on Habeas Corpus. 1. Pending an appeal from the final decision of any court or judge declining to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed. 2. Pending an appeal from the final decision of any court or judge discharging the writ after it has been issued, the prisoner shall be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recognizance as hereinafter provided. 3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. In the course of its opinion the court dwelt upon two points: first, that the writ of habeas corpus could not perform the office of a writ of error; and, secondly, that the evidence submitted before the committing magistrate was not legal evidence upon which it was proper to hold the accused. No question seems to have been raised regarding the right of the federal court to grant bail in extradition cases; the statutes were not cited or discussed; the cases governing this point were not mentioned; and, indeed, the whole question of the right of the court to grant bail in extradition cases seems to have been accepted as a matter of course without argument. It is believed, therefore, that little reliance can in the final determination of this question be placed upon the holding of the court in this particular case. In the face of the fact that the statement in Wright v. Henkel, upon which the court in the principal case must have relied when he stated that "my understanding of Wright v. Henkel, 190 U. S. 40, 23 Sup. Ct. 781, 47 L. Ed. 948, is that the existence of the power was distinctly affirmed by the Supreme Court," is obiter and that, as a matter of fact, bail was refused in Wright v. Henkel; and in view of the precedents as above set forth, in which bail was not only distinctly refused in the cases, but the authority to grant bail at all in extradition cases was also denied, it is not believed that the decision in the present case can be regarded as entirely well considered if indeed sound. Moreover there is still left as a guide to the question of bail in extradition cases that fundamental principle set forth so succinctly by Mr. Chief Justice Fuller in Wright v. Henkel (the very case relied upon by Judge Hand) when he said: 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 obligation 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 [R. S. 5270-5273, which the Chief Justice had already quoted] would seem generally applicable to release pending examination. It is believed that in these few words the learned Chief Justice has laid down the basic principle that must ultimately govern and determine the question of bail in international extradition cases; and that principle will forbid, certainly as a general rule, and save in the most exceptional cases, the granting of bail to fugitives from the justice of a foreign government. THE JURISDICTION OF THE RIO DE LA PLATA The protocol between the Republics of Argentine and Uruguay dealing with the troublesome question as to the jurisdiction over the River de la Plata, which is printed in full in the Supplement to this number of the JOURNAL, p. 138, closes another interesting chapter in the history of the negotiations with regard to this important international dispute. For a brief account of the questions in dispute and the respective contentions of the two Governments, reference may be made to the editorial comment of the JOURNAL for October, 1907, Vol. I, Pt. 2, pp. 984-988. It is sufficient to recall that the Government of the Argentine, basing itself upon historical arguments and arguments of a practical nature, maintains that its jurisdiction extends over the entire Rio de la Plata, excepting a restricted zone along the Uruguayan shore; whereas, the Government of Uruguay declines to admit the force of the historical and practical arguments advanced by the Government of Argentine and, basing itself upon the general principles of international law, maintains its right to divide with the Government of Argentine the jurisdiction over the river. The choice of the plenipotentiaries who negotiated and signed the protocol which has so happily allayed the growing irritation between the two Governments marks the importance attached to the negotiations by both Governments. The protocol was negotiated and signed on behalf of the Argentine by Dr. Roque Saenz Peña, Argentine Minister to Italy and at present prominently mentioned as the next president of the Argentine, who proceeded to Montevideo on a special mission for the purpose, and on behalf of Uruguay by Dr. Gonzalo Ramirez, Uruguavan Minister to the Argentine, who was recalled from Buenos Aires in order to enable him to sign the protocol. It will be recalled that Dr. Saenz Peña was the head of the Argentine delegation to the Hague Conference and was selected by the Government of Venezuela from among the members of the Hague court to act as arbitrator in the approaching arbitration between the United States and Venezuela, but was compelled to withdraw as arbitrator on account of his other duties. The text of the protocol itself may seem somewhat disappointing to those who are not acquainted with the history of the negotiations which led up to its signature on account of its failure to provide a definitive. solution for the questions at issue. However, the third article provides for the maintenance of the status quo by stipulating that "the navigation and use of the waters of the River Plate will continue without alteration as up to the present," while the other articles of the protocol. contain mutual engagements to approach the future solution of the questions involved in a spirit of friendship and amity and thus point the way to an ultimate adjustment at some time when the subject may be dispassionately considered, divorced from any incidents which may have made for friction in the recent negotiations. Those who are best acquainted with the situation and therefore best qualified to judge, appear to regard the agreement, which seems to have been hailed with equal satisfaction by the public opinion in both countries, as most wise both in its inclusions and omissions and of the highest importance in bringing about the ultimate amicable solution of this question which has so long vexed the relations of two friendly nations. CHRONICLE OF INTERNATIONAL EVENTS WITH REFERENCES Abbreviations: Ann. sc. pol., Annales des sciences politiques, Paris; Arch. dipl., Archives diplomatiques, Paris; B., boletín, bulletin, bollettino; B. A. R., Monthly bulletin of the International Bureau of American Republics, Washington; Doc. dipl., France: Documents diplomatiques; Dr., droit, diritto, derecho; For. rel., Foreign Relations of the United States; Ga., gazette, gaceta, gazzetta; Cd., Great Britain: Parliamentary Papers; Int., international, internacional, internazionale; J., journal; J. O., Journal Officiel, Paris; Mém. dipl., Mémorial diplomatique, Paris; Monit., Moniteur belge, Brussels; N. R. G., Nouveau recueil général de traités, Leipzig: Q. dipl., Questions diplomatiques et coloniales; R., review, revista, revue, rivista; Reichs-G., Reichs-Gesetzblatt, Berlin; Staatsb., Staatsblad, Gröningen: State Papers, British and Foreign State Papers, London; Stat. at L., United States Statutes at Large; Times, the Times (London); Treaty ser., Great Britain: Treaty Series. October, 1909. 2 CHINA-GREAT BRITAIN-UNITED STATES. Agreement signed for the construction of the Chinchow-Tsitsihar-Aigun Railway, by a British firm with American capital. North China Herald, January 28. 6 COLOMBIA-FRANCE. Ratifications of the Arbitration convention signed at Bogota, December 16, 1908, exchanged at Bogota. Text in R. Generale de Dr. Int. Public, 16: (725) 41. November, 1909. 3 INTERNATIONAL MOROCCO MINES COMMISSION met at Paris. The 3-12 GREAT BRITAIN SWITZERLAND. Exchange of notes renewing for a further period of five years the arbitration convention, signed at London, November 16, 1904. Treaty ser., 1909, No. 33. R. Generale de Dr. Int. Public, 16:682. 5 FRANCE PORTUGAL. Exchange of ratifications at Lisbon, of convention signed at Lisbon, July 11, 1908, to facilitate telegraphic relations between the French and Portuguese Congos. J. O., December 8. |