The appellees were brought before a Circuit Court commissioner
in the Western District of Texas, charged by the Mexican consul
with the commission, in Mexico, of a crime extraditable under the
treaty of June 20, 1862. The commissioner found the evidence
sufficient to warrant their commitment for extradition. On the
application of the prisoners, a writ of habeas corpus was issued by
the United States District Judge, directed to the marshal of the
district. The judge, after hearing, decided that the offenses
charged were political offenses, and not extraditable, and ordered
the prisoners discharged. From this judgment, the consul appealed
to this Court.
Held that as his government was the real
party
Page 161 U. S. 503
interested, the appeal was properly prosecuted by him, and as
the construction of the treaty was drawn in question, it was
properly taken to this Court.
The order of the district court requiring the petitioners to
enter into recognizances for their appearance to answer its
judgment was rightly made.
A writ of habeas corpus cannot perform the office of a writ of
error, and in extradition proceedings, if the committing magistrate
has jurisdiction of the subject matter and of the accused, and the
offense charged is within the terms of the treaty of extradition,
and the magistrate, in arriving at a decision to hold the accused,
has before him competent legal evidence on which to exercise his
judgment as to whether the facts are sufficient to establish the
criminality of the accused for the purposes of extradition, such
decision cannot be reviewed on habeas corpus.
Whether an extraditable crime has been committed is a question
of mixed law and fact, but chiefly of fact, and the judgment of the
magistrate rendered in good faith on legal evidence that the
accused is guilty of the act charged, and that it constitutes an
extraditable crime, cannot be reviewed on the weight of evidence,
and is final for the purposes of the preliminary examination unless
palpably erroneous in law.
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.
On complaints made by Plutarco Ornelas, consul of the Republic
of Mexico, charging Juan Duque, Inez Ruiz, and Jesus Guerra with
the commission of murder, arson, robbery, and kidnapping at the
village of San Ygnacio, in the State of Tamaulipas, Republic of
Mexico, on December 10, 1892; that they were fugitives from justice
of the State of Tamaulipas and the Republic of Mexico, and had fled
into the jurisdiction of the United States for the purpose of
seeking an asylum, and that the alleged crimes were enumerated and
embraced in the treaty of extradition then in force between the
United States and the Republic of Mexico, warrants were issued by
L. F. Price, commissioner of the Circuit Court of the United States
for the Western District of Texas, duly authorized, for their
apprehension, on which they were arrested and brought before the
commissioner to answer the premises and to be dealt with according
to law and the provisions of the treaty. The cases were heard, and
the commissioner
Page 161 U. S. 504
found that the evidence was sufficient in law to justify their
commitment on such charges, and that they should be placed in
custody to await the order of the President of the United States in
the premises.
Thereupon Ruiz, Guerra, and Duque applied to the District Court
of the United States for the Western District of Texas for writs of
habeas corpus, alleging that they were unlawfully restrained of
their liberty by the United States marshal for that district, and
praying that they be released.
The writs were issued, and the marshal made his return, showing
that he held petitioners by virtue of warrants issued by the United
States commissioner, on the application of the Mexican government
for their extradition on the aforesaid charges. With the writs of
habeas corpus were issued writs of certiorari directing the
commissioner to send up the original papers and a transcript of the
testimony on which the prisoners were committed. This was done, and
on consideration of the cases, the district court held on the
evidence that the offenses with which petitioners were charged were
purely political offenses, for the commission of which petitioners
were not extraditable, and entered a final order discharging
petitioners from the custody of the marshal on giving bond for
their appearance to answer the judgment on appeal. From this final
order the consul of the Republic of Mexico prayed an appeal to this
Court
The following are articles of the extradition treaty between the
United States and the Republic of Mexico, proclaimed June 20,
1862:
"Article I. It is agreed that the contracting parties shall, on
requisitions made in their name, through the medium of their
respective diplomatic agents, deliver up to justice persons who,
being accused of the crimes enumerated in article third of the
present treaty, committed within the jurisdiction of the requiring
party, shall seek an asylum, or shall be found within the
territories of the other,
provided that this shall be done
only when the fact of the commission of the crime shall be so
established as that the laws of the country in which the fugitive
or the person so accused shall be found
Page 161 U. S. 505
would justify his or her apprehension and commitment for trial
if the crime had been there committed."
"Article II. In the case of crimes committed in the frontier
states or territories of the two be suspended, through the chief
military officer through their respective diplomatic agents, or
through the chief civil authority of said states or territories, or
through such chief civil or judicial authority of the districts or
counties bordering on the frontier as may for this purpose by duly
authorized by the said chief civil authority of the said frontier
states or territories, or when from any cause the civil authority
of such state or territory shall be suspended, through the chief
military officer in command of such state or territory."
"Article III. Persons shall be so delivered up who shall be
charged, according to the provisions of this treaty, with any of
the following crimes, whether as principals, accessories, or
accomplices, to-wit: murder (including assassination, parricide,
infanticide, and poisoning), assault with intent to commit murder,
mutilation, piracy, arson, rape, kidnapping, defining the same to
be the taking and carrying away of a free person by force or
deception; forgery, including the forging or making, or knowingly
passing or putting in circulation counterfeit coin or bank notes,
or other paper current as money, with intent to defraud any person
or persons; the introduction or making of instruments for the
fabrication of counterfeit coin or bank notes, or other paper
current as money; embezzlement of public moneys, robbery, defining
the same to be the felonious and forcible taking from the person of
another of goods or money to any value, by violence or putting him
in fear; burglary, defining the same to be breaking and entering
into the house of another with intent to commit felony, and the
crime of larceny, of cattle, or other goods and chattels, of the
value of twenty-five dollars or more, when the same is committed
within the frontier states or territories of the contracting
parties."
"Article IV. On the part of each country, the surrender of
fugitives from justice shall be made only by the authority of the
executive thereof, except in the case of crimes committed
Page 161 U. S. 506
within the limits of the frontier states or territories, in
which latter case the surrender may be made by the chief civil
authority thereof, or such chief civil or judicial authority of the
district or counties bordering on the frontier as may for this
purpose be duly authorized by the said chief civil authority of the
said frontier states or territories, or, if, from any cause, the
civil authority of such state or territory shall be suspended, then
such surrender may be made by the chief military officer in command
of such state or territory."
"Article V. All expenses whatever of detention and delivery
effected in virtue of the preceding provisions shall be borne and
defrayed by the government or authority of the frontier state or
territory in whose name the requisition shall have been made."
"Article VI. The provisions of the present treaty shall not be
applied in any manner to any crime or offense of a purely political
character, nor shall it embrace the return of fugitive slaves, nor
the delivery of criminals who, when the offense was committed,
shall have been held in the place where the offense was committed
in the condition of slaves, the same being expressly forbidden by
the Constitution of Mexico, nor shall the provisions of the present
treaty be applied in any manner to the crimes enumerated in the
third article committed anterior to the date of the exchange of the
ratifications hereof."
"Neither of the contracting parties shall be bound to deliver up
its own citizens under the stipulations of this treaty."
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
The Republic of Mexico applied for the extradition of these
petitioners by complaints made under oath by its consul at
Page 161 U. S. 507
San Antonio, Bexar County, Texas, under section 5270 of the
Revised Statutes. The official character of this officer must be
taken as sufficient evidence of his authority, and, as the
government he represented was the real party interested in
resisting the discharge, the appeal was properly prosecuted by him
on its behalf.
Wildenhus' Case, 120 U. S.
1. As the construction of the treaty was drawn in
question, the appeal was taken directly to this Court, and the
district court rightly required petitioners, under Rule 34, to
enter into recognizance for their appearance to answer its
judgment.
The legislative provisions on the subject of extradition are to
be found in sections 5270-5280, constituting Title LXVI of the
Revised Statutes. Section 5270 provides:
"Whenever there is a treaty or convention for extradition
between the government of the United States and any foreign
government, any Justice of the Supreme Court, circuit judge,
district judge, commissioner authorized so to do by any of the
courts of the United States, or judge of a court of record of
general jurisdiction of any state, may, upon complaint made under
oath, charging any person found within the limits of any state,
district, or territory, with having committed within the
jurisdiction of any such foreign government any of the crimes
provided for by such treaty or convention, issue his warrant for
the apprehension of the person so charged, that he may be brought
before such justice, judge, or commissioner, to the end that the
evidence of criminality may be heard and considered. If, on such
hearing, he deems the evidence sufficient to sustain the charge
under the provisions of the proper treaty or convention, he shall
certify the same, together with a copy of all the testimony taken
before him, to the Secretary of State, that a warrant may issue
upon the requisition of the proper authorities of such foreign
government for the surrender of such person according to the
stipulations of the treaty or convention, and he 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."
In the extradition case of
In re Stupp, 12 Blatchford
501, Mr. Justice Blatchford, then district judge, carefully
considered
Page 161 U. S. 508
the provisions of the Revised Statutes in respect of the issue
of writs of habeas corpus and certiorari by the courts and judges
of the United States, Rev.Stat. §§ 751-761, and the acts
of Congress from which those sections were brought forward, and
pointed out that the general language used is as applicable to a
case where the party is in custody under process issued on a final
judgment of a court of the United States on a conviction on an
indictment as it is to a case where a party is in custody under any
other process; that it could not be successfully contended that
these provisions have the effect to authorize a court of the United
States, which has no direct power given to it to review the final
judgment of another court of the United States in a given case, to
review such judgment on the merits under the indirect authority of
a writ of habeas corpus, and that therefore, as the statute in
respect of extradition gives no right of review to be exercised by
any court or judicial officer, but the magistrate is to certify his
findings on the testimony to the Secretary of State, that the case
may be reviewed by the executive department of the government, the
court issuing the writ may
"inquire and adjudge whether the commissioner acquired
jurisdiction of the matter by conforming to the requirements of the
treaty and the statute, whether he exceeded his jurisdiction, and
whether he had any legal or competent evidence of facts before him
on which to exercise a judgment as to the criminality of the
accused. But such court is not to inquire whether the legal
evidence of facts before the commissioner was sufficient or
insufficient to warrant his conclusion."
By repeated decisions of this Court, it is settled that a writ
of habeas corpus cannot perform the office of a writ of error, and
that, in extradition proceeding, if the committing magistrate has
jurisdiction of the subject matter and of the accused, and the
offense charged is within the terms of the treaty of extradition,
and the magistrate, in arriving at a decision to hold the accused,
has before him competent legal evidence on which to exercise his
judgment as to whether the facts are sufficient to establish the
criminality of the accused for the
Page 161 U. S. 509
purposes of extradition, such decision cannot be reviewed on
habeas corpus.
In re Oteiza y Cortes, 136 U.
S. 330;
Benson v. McMahon, 127 U.
S. 457;
Fong Yue Ting v. United States,
149 U. S.
714.
As the English extradition act of 1870, 33 & 34 Vict. c. 52,
extracts from sections 3 and 11 of which are given below,
* contemplates an
independent examination on habeas corpus in every case, if applied
for, as in effect part of the proceedings, it has been held that
the courts have power to go into the whole matter under the writ so
provided for.
In re Castioni, 1 L.R. 1 Q.B. 1891, 149;
In re Arton, (1896) 1 Q.B. 108. But the legislation of
Congress in respect of extradition is widely different, and the
scope of inquiry on the writ of habeas corpus is necessarily much
narrower.
Whether an extraditable crime has been committed is a question
of mixed law and fact, but chiefly of fact, and the judgment of the
magistrate, rendered in good faith, on legal evidence, that the
accused is guilty of the act charged, and that it constitutes an
extraditable crime, cannot be reviewed on the weight of evidence,
and is final for the purposes of the preliminary examination unless
palpably erroneous in law.
Page 161 U. S. 510
It must be assumed on this record that the commissioner was duly
authorized; that petitioners were not citizens of the United
States, but were citizens of Mexico; that the acts charged were
committed in Mexico, and were considered crimes under both
governments; that no objection requiring consideration exists in
the mode of procedure, and that the commissioner had jurisdiction
of the person and of the subject matter if, on the evidence, the
offenses charged were within the terms of the treaty.
The release of petitioners was ordered on the sole ground that,
as appears from the portion of the opinion of the learned district
judge contained in the record, this raid was part of
"a political movement, having for its purpose the overthrow of
the existing government in Mexico, and that the offenses committed
by the petitioners and their associates in their vain and visionary
attempt to accomplish their purpose were purely political offenses
within the meaning of the sixth article of the treaty of
extradition."
The evidence before the commissioner, from which this conclusion
was deduced, tended to show that, on December 10, 1892, a band of
armed men to the number of 130 or 140, under the leadership of one
Francisco Benevides, passed over the Rio Grande from Texas into
Mexico and attacked about 40 Mexican soldiers, stationed at the
village of San Ygnacio, killing and wounding some of them and
capturing others, who were afterwards released, burning their
barracks and taking away their horses and equipments; that private
citizens were also violently assaulted, horses belonging to them
taken, houses burned, small sums of money extorted from women,
clothes, provisions, and goods appropriated, and three citizens
kidnapped and carried over the river to the Texas side, finally
escaping; that these men were bandits, without uniforms or flag,
but with a red band on their hats, and that Garza was not there,
and had nothing to do with the expedition. The band remained on the
Mexican side of the river about six hours, and recrossed at the
village ford. Petitioners were members of the band, and citizens of
Mexico, as appeared from the complaints and testimony, though one
of them, at
Page 161 U. S. 511
least, had resided, a large part of the time, for many years in
Texas. Evidence on behalf of petitioners was adduced indicating
that there had been a revolutionary movement on that border under
one Garza in 1891; that indictments had been found against the
participants for violation of the neutrality laws, and that the
aim, object, and purpose of Benevides' men was the same as Garza's,
"to cross over the river and fight against the government."
In the course of his opinion, the district judge referred to the
views of the State Department as to the transaction at San Ygnacio.
We presume this reference is to the note of Mr. Secretary Gresham
to the minister of Mexico, May 13, 1893, in respect of the
extradition of Benevides. The facts were reviewed therein by the
secretary, and it was held that the acts for which his extradition
was asked were "not of such a purely political character as to
exclude them from the operation of the treaty." The secretary
concluded his resume with those words:
"The idea that these acts were perpetrated with
bona
fide political or revolutionary designs is negatived by the
fact that, immediately after this occurrence, though no superior
armed force of the Mexican government was in the vicinity to hinder
their advance into the country, the bandits withdrew with their
booty across the river into Texas."
But extradition was not granted because it appeared that
Benevides was a citizen of the United States.
The district judge entertained different views from those of the
secretary, and arrived at a different result from that reached by
the commissioner on the evidence on which the latter proceeded, and
so was induced to substitute his judgment for that of the
commissioner, in whom was reposed the authority of decision, unless
jurisdiction were lacking.
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
Page 161 U. S. 512
of the political intentions of those who committed them? In our
opinion, this inquiry must be answered in the negative.
The contention that the right of the executive authority to
determine when offenses charged are or are not purely political is
exclusive 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. The rule as to probable cause was thus laid down by Mr.
Chief Justice Marshall, sitting as a committing magistrate, in
Burr's Case:
"On an application of this kind, I certainly should not require
that proof which would be necessary to convict the persons to be
committed, on a trial in chief, nor should I even require that
which should absolutely convince my own mind of the guilt of the
accused; but I ought to require, and I should require, that
probable cause be shown, and I understand probable cause to be a
case made out by proof furnishing good reason to believe that the
crime alleged has been committed by the person charged with having
committed it."
1 Burr's Trial 11;
Benson v. McMahon, 127
U. S. 462;
In re Farez, 7 Blatchford 345;
In re Ezeta, 62 F. 972, 981.
We are of opinion that it cannot be held that there was
substantially no evidence calling for the judgment of the
commissioner as to whether he would or would not certify and commit
under the statute, and that therefore as matter of law he had no
jurisdiction over the subject matter, and, this being so, his
action was not open to review on habeas corpus.
The final order of the district court is therefore reversed,
and the case remanded for further proceedings in conformity to
law.
*
"3. A fugitive criminal shall not be surrendered if the offense
in respect of which his surrender is demanded is one of a political
character, or if he prove to the satisfaction of the police
magistrate, or the court before whom he is brought on habeas
corpus, or to the Secretary of State, that the requisition for his
surrender has in fact been made with a view to try or punish him
for an offense of a political character."
"11. If the police magistrate commits a fugitive criminal to
prison, he shall inform such criminal that he will not be
surrendered until after the expiration of fifteen days, and that he
has a right to apply for a writ of habeas corpus. Upon the
expiration of the said fifteen days, or if a writ of habeas corpus
is issued, after the decision of the court upon the return to the
writ, as the case may be, or after such further period as may be
allowed in either case by a Secretary of State, it shall be lawful
for a Secretary of State, by a warrant under his hand and seal, to
order the fugitive criminal (if not delivered on the decision of
the court) to be surrendered to such person as may in his opinion
be duly authorized to receive the fugitive criminal by the foreign
state from which the requisition for the surrender proceeded, and
such fugitive criminal shall be surrendered accordingly."
