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the exclusion of the right of extradition for any others. In the older treaty the pertinent language of the caption of the treaty was for the giving up of criminal fugitives from justice in certain cases. There were only seven crimes enumerated. In the later treaty extradition, as we have seen, is to take place, not only for the crimes which are largely multiplied, but also for participation in any of the crimes therein mentioned. It is not surprising that, construing the earlier treaty, Mr. Justice Miller in Rauscher's Case, after reviewing the authorities declared that a person who has been brought within the jurisdiction of the court by virtue of the proceedings under an extradition treaty can only be tried for one of the offenses described in that treaty. It is obligatory upon the court in the application of this language to look carefully to the phraseology and purpose of the treaty the Supreme Court is construing. When, however, a subsequent treaty, equally binding upon the judicial officers of both countries, authorizes extradition not only for the specific crime mentioned but for participation in it, and when such facts constitute a penal offense under the laws of both sovereignties and the determination of whether the facts set out in the proceedings for extradition and in the indictment found in the trial court on the same facts constitute such a participation is a matter to be determined according to the jurisprudence and practice of the country where the prisoners are indicted and to which they have been returned.
The treaty now effective was adopted in 1890, and the view we state above may, we think, be regarded as confirmed by the language of the court in Bryant v. U. S. (decided in 1896) 167 U. S. 104, 17 Sup. Ct. 744, 42 L. Ed. 94. This was a case of extradition by the British government from American Territory. The prisoner was charged with the crimes of forgery, larceny, embezzlement, and false entries committed in the city of London. The extradition was attempted under article 10 of the treaty of November 10, 1842 (8 Stat. 576), and article 1, of the treaty supplemental thereto of March 25, 1890 (26 Stat. 1508). These are the precise principles of the treaty which are now under consideration. It will be observed that there was a charge of forgery of three checks, and it was insisted that, because the prisoner made false entries upon the books of Morrison and Marshall, this would not constitute an offense for which he could be extradited because, when the treaty of 1842 was executed, the making of false entries was not forgery, and that further as to the charge of embezzlement there was no evidence of criminality, and that if there was evidence sufficient to hold appellant upon the charge of forgery, he could not be held as for larceny or embezzlement, and that if he were held for embezzlement he could not also be held for obtaining the money upon forged checks, that as he could only be tried for the particular offense for which he is surrendered, the demanding government and the commissioner should have elected, and if the latter deemed the evidence sufficient to commit upon the one charge he should not have been committed upon the other. The court, through Mr. Justice Brown, made this significant remark:
“So long as the prisoner is tried upon the facts which appeared in evidence before the commissioner, and upon the charges or one of the charges for which he is surrendered, it is immaterial whether the indictment against him shall contain counts for forgery, larceny, or embezzlement. While the treaty of 1842 authorized surrender only for the crime of forgery, or utterance of forged paper, the supplemental treaty of March 25, 1890, included both embezzlement and larceny."
It is, perhaps, not quite safe, therefore, in the practical administration of justice to be guided exclusively by precedents established when the treaty making nations were ever en garde the one toward the other. This is happily expressed in the brief of Mr. Solicitor General Hoyt and Mr. Assistant Attorney General Purdy in Wright v. Henkle, 190 U. S., at page 55:
“As confidence between nations has grown, the liberal view of extradition treaties as effectuating common and proper purposes emphasizes the broad, essential correspondencies, and minor technical distinctions and mere designations have less weight. Bryant's Case, supra; Grin v. Shine, 187 U. S. 181, 23 Sup. Ct. 98, 47 L. Ed. 130.
They add on page 56 that:
“Provided the particular variety is criminal in both jurisdictions, exact correspondence is not necessary. The essence and substance are to be regarded, and highly technical considerations fall away.”
And reciting, on page 60 of 190 U. S., page 785 of 23 Sup. Ct. (47 L. Ed. 948), the interesting fact that the treaty we have under consideration was made by Mr. Secretary Blaine and that accomplished lawyer and publicist, then Sir Julian Pauncefote, the Chief Justice declares:
"Where there was reason to doubt whether the generic term embraced a particular variety, specific language was used. As for instance, as to the slave trade, though criminal, yet, apparently because there had been peculiar local aspects, the crime was required to be 'against the laws of both countries'; and so as to fraud and breach of trust, which had been brought within the grasp of criminal law in comparatively recent times.”
"It is enough,” continues the Chief Justice, “if the particular variety was criminal in both jurisdictions and the laws of both countries included the laws of their component parts.” This view seems to have impressed the Chief Justice who rendered the opinion for the unanimous court in Wright v. Henkel, supra. "Treaties," said he, "must receive a fair interpretation, according to the intention of the contracting parties, and so as to carry out their manifest purpose. The ordinary technicalities of criminal proceedings are applicable to proceedings in extradition only to a limited extent.” Chief Justice Fuller continued:
“The general principle of international law is that in all cases of extradition the act done on account of which extradition is demanded must be considered as a crime by both parties, and as to the offense charged in this case, the treaty of 1889 embodies that principle in terms. The offense must be 'made criminal by the laws of both countries.'”
It must be remembered that the treaty under consideration is sometimes called the treaty of 1889 and sometimes the treaty of 1890. This is due to the fact that it was negotiated in one year and put in
operation by the proclamation of the President the next year.
The thought is further amplified in the observations of Mr. Justice Brown, in Grin v. Shine, 187 U. S. 184, 23 Sup. Ct. 98, 47 L. Ed. 130. Said that learned justice:
“There is such a general acknowledgement of the necessity of such treaties, that of late, and since the facilities for the escape of criminals have so greatly increased, most of the civilized powers have entered into conventions for the mutual surrender of persons charged with the most serious nonpolitical crimes. * * *
In the construction and carrying out of such treaties the ordinary technicalities of criminal proceedings are applicable only to a limited extent. Foreign powers are not expected to be versed in the niceties of our criminal law, and proceedings for surrender are not such as put in issue the life or liberty of the accused. They simply demand of him that he shall do what all citizens are required and ought to be willing to do, viz., submit themselves to the laws of their country."
It is insisted, however, that, notwithstanding the essential facts constituting an offense criminal in both countries are fully recited in the indictment and as fully placed before the commissioner of extradition as appears from his judgment, we have no jurisdiction to try these prisoners because in some of the counts the aggregated facts thus denounced by law are by the pleader termed a conspiracy. It is further urged that conspiracy is not specifically extraditable under the suppiemental treaty or under any treaty with Great Britain, and therefore the prisoners must be discharged and permitted to go hence without a day.
In view of the grave consequence of the offenses charged, this proposition is startling to all who consider the right of the people to have issues like this tried upon the merits and the guilt or innocence of the parties determined by the evidence. The court will not lightly or without anxious inquiry dispose of an issue of such magnitude. For years the government has been attempting to bring to the bar of public justice the men whom successive grand juries have indicted for alleged violation of its laws, and alleged misappropriation of enormous sums appropriated by the liberality of Congress for the benefit of this city, of the Georgia sea coast, and the mighty values involved in the transportation by water of the interstate and foreign commerce of our country. On the other hand the rights of an individual in the orderly administration of justice are not less sacred, not less to be carefully conserved by the courts than the rights of the public in so far as they may be properly involved. The court has therefore listened attentivel and carefully considered the exhaustive arguments of counsel. Undoubtedly it will not be forgotten that, under what I have long believed a most unfair and unrighteous discrimination in the law, the government, representative of the people, has no appeal from the decision of a court of this character however technical or erroneous, and however completely it may nullify the purpose for which criminal laws were enacted. On the other hand the accused is given the right of appeal and exception on every judgment made, and in many instances the right of reiterated appeals. For this additional reason the court should exercise the utmost care and circumspection before it will turn the government out of court. If, then, there are
fair grounds supported by reasonable considerations, whether by precedent or not, which will adequately secure to the prisoners a fair trial and a righteous determination, such defenses as that upon which the prisoners rely will be discouraged unless a different course is obligatory. If his substantial constitutional and legal rights can obviously be protected, if no harm can come to him by maintaining the indictment, the right of the public to present its side of the case on the facts should not be denied. If the accusation of crime made by the constitutional inquest, the grand jury, is supported by adequate proof which, in the absence of contradiction, will justify conviction of guilt there is also the equal right of the public to hear the evidence and the merits of the prisoner's defense. This is fundamental law in its evolution made every day more and more applicable by the increasing demands for protection for our increasing interests and our marvellous civilization. Besides in the issue of this character the prisoner is the movant, the burden is upon him to assail and maintain his assault against the presumably orderly and regular proceedings directed by the governmental authority. "Omnia præsumuntur rite et soleniter esse acta.”
It is true that the government of the United States in its efforts to secure the return of the prisoners for trial was for a time confounded by the erroneous judgment of a local Canadian judge. This conduct has been condemned by the highest judicial authority intrusted with appropriate jurisdiction in that mighty empire to which the Dominion of Canada is subject. I mean the privy council of his majesty King Edward VII. It is also true that an extradition commissioner expressly intrusted by Canadian law with the decision of the matters involved, after hearing all that the government of the United States advanced or the prisoners cared to submit, made his judgment of extradition upon the substantial charges presented by the United States. More than this on habeas corpus proceedings instituted by the prisoners as they had the right to do, a judge of the King's Bench in Canada affirmed the action of the commissioner of extradition. The requisition of the President of the United States was made. The prisoners have been restored to the jurisdiction from which they fled. It may be added that another Canadian judge had previously maintained the rights of our government to the extradition of these men. Then it is true that two judges of that Dominion have sanctioned this extradition upon a complaint setting forth the essential grounds set forth in the indictment, and the august tribunal presided over by the Lord Chancellor sitting in those mighty halls of justice in that
“Land of old and great renown Where Freedom broadens slowly down
From precedent to precedent," have upheld the authority of those two judges to finally pass upon the questions, and their judgments have upheld the dignity and majesty of American law and the comity which should exist between the two great English-speaking nations who have taken the lead in all the
paths of civilization in every effort made by government for the protection of life, liberty, and property.
It is said that to uphold this indictment would be a reflection upon the national honor, but in view of this action of all the courts of Great Britain and the ample sufficiency of these indictments, it will appear, I think, that to annul them would seem a reflection upon the national intelligence. Why, then, is the court asked at one stroke to hew down the arm of justice as it would hold the scales in equal poise between the government and the accused?
The whole contention of the accused may be summarized in a single sentence. The indictment charges conspiracy, and the prisoners were returned to the bar of this court for something else. It is further charged that the prisoners are put on trial for crimes other than those for which the extradition was granted. As we have previously seen, generic terms were utilized by the great diplomatists and lawyers who drafted this treaty wherever it was deemed that specific language was not adequate. The purpose was to accomplish extradition and the trial on the merits which should follow. Fraud by an agent or trustee, and participation in extraditable crimes are illustrations of this character. The treaty does not attempt to define all of the definitions of crime which may be adopted by the Legislatures of the respective countries. It classifies topics and elements of crime in generic phraseology leaving for the respective governments the duty of framing its legislation so as to definitely denounce any and all injurious action embraced in the more comprehensive language of the treaty, to provide procedure for the trial and penalties upon conviction. How multiplied might be the instances of fraud in the United States and in the several states which might be expressed by the term fraud by an agent or trustee. Larceny after trust, embezzlement, making false entries to mislead and cover up the traces of guilt, the looting of a bank by its officers and the like. Indeed, innumerable are the instances of criminal fraud which have been or may be defined either by the Congress or by the Legislatures of the several states, under each of these extradition clauses. Nor does it seem to me of consequence that the pleader has denominated what is actual criminal fraud of this class which is extraditable under a definition of crime which is not extraditable. An indictment is to be construed, not by the name with which it is christened, but by the crime which it acually truly and fully sets forth in the averments of fact. If, then, it should appear that the pleader in this case termed as a conspiracy, a gigantic scheme to defraud the United States of hundreds of thousands of dollars, a scheme which in its substance and essence is made penal by the statute, which is made penal also by the criminal laws of Canada, if the averments are full, circumstantial, complete, putting the prisoner on notice of all the proof which the government intends to offer against him; if, in other words, it is an adequate description of joint participation in a gigantic fraud accomplished by a trusted agent of the government of the United States, how is anybody hurt because along with all this fullness of averment, this completeness of notice and information of the character of the offense charged, the pleader also terms it a conspiracy?