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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
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.]
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 proge. cuting 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, Uruguayan Minister to the Argentine, who was recalled from Buenos Aires in order