Imagini ale paginilor
PDF
ePub

mitted it." 100 It is the duty of a committing magistrate to determine whether the offense alleged is of a political nature.101

§ 329. Final decision as to question.-As different views prevail as to what acts constitute a political offense, the final decision must rest with the government in which the fugitive has found refuge.1 102 The United States cannot consent that a German city shall surrender to a German state, on the ground of dereliction in military service, a citizen of the United States. who is temporarily residing in such city.103

Under the law of the state of New York authorizing the governor to surrender to foreign government any person found within the state charged with the commission of any crime that, if committed in New York, would be punishable with death or imprisonment in the state prison, the governor of New York, in 1822, refused to surrender a person charged with murder, arson and robbery, where it appeared that the acts constituting the offense were committed by a band of from six hundred to fifteen hundred persons, who had armed themselves and had commenced an insurrection for the redress of alleged grievances.104

§ 330. Some instances.-During the progress of the Civil War, in 1863, an American vessel loaded with cotton, en route from Mexico to New York, was seized by passengers on board in the name of the Confederate government. Four of the offenders were arrested in Liverpool, their extradition having been requested on a charge of piracy. The case was finally decided on the ground that even if the acts constituted piracy, it was not such piracy as the treaties had in view, which the court considered to be piracy under municipal statutes.105

In 1864 one Burley, who professed to act on behalf of the Confederate government, seized an American boat, in American waters, not far from the shore of the state of Ohio. Burley was brought to Toronto, Canada, and his extradition was demanded on the charges of piracy, robbery and assault with attempt to

100

1 Burr's Trial, 11.

11 In re Ezeta, 62 Fed. 972.

12 Lord Derby to Colonel Hoffman, May 4, 1876, For. Rel. 1876.

143 Mr. Cass, Secretary of State, to

Mr. Schleiden, April 9, 1859, MS.
Notes to Hanse Towns, VII, 31.

104 MS. Misc. Let., December 30, 1837.

105 In re Tivnam, 5 Best & S. 645.

commit murder. He was remanded to Ohio for trial, the judges of Canada taking the ground that a prima facie case of robbery was clearly established.106 But in 1864 certain persons who organized an expedition in Canada came to the town of St. Albans, in Vermont, and raided that town, committing many acts of violence. It appeared that the leader had a commission under the Confederate states, and he claimed that in making the raid he was acting as an officer, and that his companions were soldiers acting under his authority and command. It was held by the Canadian authorities that the attack was a hostile expedition, authorized both expressly and impliedly by the Confederate states.107

§ 331. Raid at San Ignacio.-Three Mexicans, named Inez Ruiz, Juan Duque and Jesus Guerra, were a part of an armed band who, crossing the Rio Grande from Texas to Mexico, December 10, 1892, attacked a garrison of soldiers stationed at the village of San Ignacio. This band wounded and killed some of the soldiers and captured others, whom they subsequently released. The band likewise burned the barracks of the soldiers and took away their horses and equipments, assaulted private citizens, burned houses in the village, extorted money from the inhabitants, and appropriated clothes and provisions. The raiders. kidnaped three citizens and carried them over the boundary into Texas, although they afterward escaped. A revolutionary movement took place in Mexico under Garza in 1891, but Garza was not present at the time of the depredations and had no connections with the raiders, who displayed no uniform or flag, and whose only emblem indicating their identity was a red band around their hats. The Mexican Minister requested the extradition of the three Mexicans on charges of murder, arson, robbery and kidnaping committed in Mexico. The examining magistrate committed the prisoners for surrender, but they applied to the district court for release on habeas corpus, and that court held that the offense was of a political character, and ordered

106

Dip. Cor. 1864, part II.

107 The St. Albans Raid, by L. N. Benjamin, B. C. L., Montreal, 1865. In re Ezeta, 62 Fed. 972, Judge Morrow, District Judge, sitting as a

com

mitting magistrate, examined into the charges preferred against certain citizens of Salvador, and held that sev eral of the offenses were political in character.

the prisoners discharged. An appeal was taken to the supreme court of the United States, which held that the judgment of the magistrate rendered in good faith on legal evidence, to the effect that the accused was guilty of the act with which he was charged, and that the offense constituted an extraditable crime, is not reviewable on the weight of the evidence. Unless the judgment is palpably erroneous in law, it is final for the purposes of the preliminary examination.108

§ 332. Pilcomayo mutineers.-A mutiny took place on the Chilean gunboat, "Pilcomayo," March 31, 1891, while she was lying in the docks at Buenos Ayres, which resulted in the wounding of eleven of the crew and the death of three. The local police, at the instance of the commander, took twelve of the mutineers into custody, and the Chilean Minister requested their detention until the vessel was ready to depart for Chile, so that they might be transported to that country and tried for their offense. The Chilean government had ordered the dismantling of the "Pilcomayo," and this task was being performed at the time of the mutiny. It was understood that upon the completion of this task, the vessel was to be taken back to Chile and put

18 Ornelas v. Ruiz, 161 U. S. 502, 16 Sup. Ct. Rep. 689, 40 L. ed. 787. Said the court: "Can it be said that the commissioner had no choice on the evidence, but to hold, in view of the character of the foray, the mode of attack, the persons killed or captured, and the kind of property taken or destroyed, that this was a movement in aid of a political revolt, an insurrection or a civil war, and that acts which contained all the characteristics of crimes under the ordinary law were exempt from extradition because of the political intentions of those who committed them? In our opinion the inquiry must be answered in the negative. The contention that the right of the executive authority to determine what offenses charged are or are not purely political is not. involved in any degree; nor are we

concerned with the question of the actual criminality of petitioners if the commissioner had probable cause for his action. It is enough if it appear that there was legal evidence on which the commissioner might properly conclude that the accused had committed offenses within the treaty as charged, and so be justified in exercising his power to commit them to await the action of the executive department."'

A writ of habeas corpus cannot perform the office of a writ of error. Oteiza y Cortes v. Jacobus, 136 U. S. 330, 10 Sup. Ct. Rep. 1031, 34 L. ed. 464; Benson v. McMahon, 127 U. S. 457, 8 Sup. Ct. Rep. 1240, 32 L. ed. 234; Fong Yue Ting v. United States, 149 U. S. 714, 13 Sup. Ct. Rep. 1016, 37 L. ed. 913.

out of service, and that a part of the crew was to be taken overland and enlisted in the army. A judge of the Argentine Republic granted a writ of habeas corpus to the mutineers, and decided on the hearing that the exemption of ships of war from the jurisdiction of the local authorities could not extend to the length of bestowing authority to entertain jurisdiction over persons in foreign territory under its flag. The court decided, also, that by causing the men to be taken from the vessel and placed in the custody of the Argentine officials, the Chilean Minister had renounced or lost the right to remove and try them, a right which he might have exercised had they been retained on board of the vessel or held under arrest in the Chilean legation. It was intimated by the court that as the vessel had lost its character as a ship of war by dismantlement, it was improper to detain the mutineers as a part of the crew of a man-of-war. An appeal was taken from this decision to the supreme court of the Argentine Republic, which held that as the mutiny appeared to be for political reasons, the offense was to be considered a political one; and that as the taking of the mutineers to shore and their delivery to the Argentine authorities were caused by the inability of retaining them on board of the vessel, it was impossible to grant their return to the representative of Chile, without violating the rule exempting political offenders from extradition. The supreme court of that nation also held that by their delivery, the principle of public law which protects prisoners of war, whether public or insurrectionary, would be violated. It is a rule of international law, held the court, that by the commission of acts of hostility by foreign insurgents in the territorial waters of another state, delivery may be made of the vessels or things taken from them, but they themselves are not to be surrendered.1

109

§ 333. Exemption from local jurisdiction.-There is a class of cases in which it is understood that every sovereign waives a part of the complete exclusive jurisdiction which is an incident to sovereignty. A public vessel of war of a foreign nation at

109 Mr. Buchanan, Minister to the Argentine Republic, to Mr. Hay, Secretary of State, No. 584, December 1, 1898, 37 MS. Desp. from Argentine Republic, inclosing a report of Mr.

Francois S. Jones, Secretary of Lega-
tion, citing Fallos de la Suprema
Corte de la Republica Argentina, 1893,
XLIII, 321, 323.

peace with the United States, coming into an American port and committing no breach of the laws, is exempt from the jurisdiction of the courts.110 A libel was filed against the schooner "Exchange," alleging that the libelants were her sole owners when she sailed from Baltimore bound to St. Sebastians, in Spain, and that while lawfully and peaceably pursuing her voyage, she was violently and forcibly taken by certain persons, acting under the orders of Napoleon, out of the custody of the libelants, and disposed of in violation of their rights. It was alleged that the vessel had been brought into the port of Philadelphia; that no sentence or decree of condemnation had been pronounced against her by any court of competent jurisdiction, but that the property of the libelants in her remained unchanged and in full force. The United States attorney filed a suggestion to the effect that the vessel whose name had been changed belonged to the Emperor of France, and that while actually employed in his service, was compelled by stress of weather to seek the port of Philadephia for repairs; and that if the vessel was ever the property of the libelants, their title had been devested according to the decrees and laws of France. Upon the ground that a public armed vessel of a foreign sovereign in amity with the United States is not subject to the ordinary judicial tribunals of the country, so far as the question of title by which such sovereign holds the vessel is concerned, the circuit court, reversing the sentence of the district court, ordered the vessel to be restored to the litigants. On an appeal to the supreme court of the United States, Mr. Chief Justice Marshall, in delivering the opinion of the court said: "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. . . . . The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those offices which mumanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar

119 The Schooner Exchange v. McFaddon, 7 Cranch, 116, 3 L. ed. 287.

« ÎnapoiContinuă »