An appeal lies directly to this Court from a judgment of the
district court in a habeas corpus case where the constitutionality
of a law of the United States, or the validity or construction of a
treaty is drawn in question.
A complaint before a commissioner in a foreign extradition case,
if made solely upon information and belief, is bad, but it need not
be made upon the personal knowledge of the complainant if he annex
to such complaint a copy of the indictment found in the foreign
country, or the deposition of a witness having personal knowledge
of the facts, taken under the statute.
Where the first count of a complaint charged the offense solely
upon information and belief, and the subsequent counts purported on
their face to aver offenses within the personal knowledge of
complainant, it was held that the insufficiency of the first count
did not impair the sufficiency of the others, and that the
complaint vested jurisdiction in the commissioner to issue his
warrant.
Continuances of the examination may be granted in the discretion
of the commissioner, and, in this particular, he is not controlled
by a state statute limiting such continuances to ten days.
The act of Congress authorizing Circuit Courts to appoint
commissioners is constitutional.
This was an appeal by Fred Lee Rice, Frank Rutledge, and Thomas
Jones from an order of the District Court for the Northern District
of Illinois, denying their application for a discharge upon a writ
of habeas corpus, the object of which writ was to test the validity
of certain proceedings against the appellants, taken before a
commissioner for that district specially authorized to take
jurisdiction of proceedings for the extradition of persons charged
with crimes, under treaties with foreign governments.
The proceedings before the commissioner are set forth in a bill
of exceptions signed by the district judge.
Page 180 U. S. 372
The first warrant for the arrest of the appellants was issued
June 2, 1900, upon complaint made upon information and belief, by
"a police officer of the City of Chicago" and an affidavit of a
police detective of the City of Toronto, Canada, also upon
information and belief, charging defendants with sundry crimes
committed both at Aurora and at Toronto, in the province of
Ontario. Pursuant to this warrant, appellants were taken by the
respondent, Ames, as United States marshal, out of the custody of
the city police, by whom they had been arrested the day before, and
brought before the commissioner. Proceedings were adjourned until
June 4, when the case was dismissed, and a new warrant issued upon
the complaint of Albert Cuddy, police detective of the City of
Toronto, also upon information and belief. Defendants moved to
quash this complaint and warrant by reason of the fact that the
complaint was made upon information and belief, which was denied,
and the proceedings adjourned until June 14. Defendants were
committed for further hearing. Upon that day, it appearing that the
proceedings had been taken only for the purpose of provisional
apprehension and detention, the case was dismissed, and a new and
final complaint made by William Greer, a government detective for
the Province of Ontario, duly authorized by the Attorney General of
the province to act as the agent of the government in the
prosecution of extradition proceedings.
This complaint contained four counts, the first of which charged
the defendants, upon information and belief, with stealing from the
post office building in the Town of Aurora a quantity of Canadian
postage stamps, $55 in money, and certain certificates in mining
stock. The other three counts, in which the charge was made
absolutely, and not upon information and belief, charged the
defendants first with stealing a horse, cart, and harness, second
with breaking and entering a private bank in the Town of Aurora
with intent to steal and also with the larceny of certain money in
the bank, and third with breaking into a shop on Queen Street, in
the City of Toronto. A new warrant was issued upon this complaint,
and the examination adjourned until June 25, at which time
defendants were brought before the commissioner and motion made for
their discharge
Page 180 U. S. 373
for want of jurisdiction and for insufficiency of the complaint.
This motion being denied, the case went to a hearing upon certain
documents certified by the American consul, and a large number of
depositions of witnesses which were not sent up with the record.
The examination was continued for several days, and finally, upon
July 10, the commissioner found there was probable cause to believe
the defendants guilty and ordered them to stand committed to await
the action of the proper authorities.
Whereupon, and upon the same day, petitioners sued out this writ
of habeas corpus from the district court, and from the order of
that court denying their discharge, they took an appeal directly to
this Court.
MR. JUSTICE BROWN delivered the opinion of the Court.
1. Motion is made to dismiss the appeal upon the ground that
there is no provision of law allowing an appeal in this class of
cases. Prior to the Court of Appeals Act of 1891, provision was
made for an appeal to the circuit court in habeas corpus cases
"from the final decision of any court, justice, or judge inferior
to the circuit court." Rev.Stat. § 763, and from the final
decision of such circuit court an appeal might be taken to this
Court. Rev.Stat. § 764, as amended March 3, 1885, 23 Stat.
437, c. 353.
The law remained in this condition until the Court of Appeals
Act of March, 1891, was passed, the fifth section of which permits
an appeal directly from the district court to this Court
"in any case in which the constitutionality of any law of the
United States, or the validity or construction of any treaty made
under its authority, is drawn in question."
In this connection, the appellee insists that an appeal will not
lie, but that a writ of error is the proper remedy. In support of
this, we are cited to the case of
Bucklin v. United
States, 159 U. S. 680, in
which
Page 180 U. S. 374
the appellant was convicted of the crime of perjury, and sought
a review of the judgment against him by an appeal, which we held
must be dismissed upon the ground that criminal cases were
reviewable here only by writ of error. Obviously that case has no
application to this, since, under the prior sections of the Revised
Statutes above cited, which are taken from the act of 1842, an
appeal was allowed in habeas corpus cases. The observation
made in the
Bucklin case, that "there was no purpose by
that act to abolish the general distinction at common law between
an appeal and a writ of error," may be supplemented by saying that
it was no purpose of the act of 1891 to change the forms of
remedies theretofore pursued.
In re Lennon, 150 U. S. 393;
Ekiu v. United States, 142 U. S. 651;
Gonzales v. Cunningham, 164 U. S. 612. As
a construction of the extradition treaty with Great Britain is
involved, the appeal was properly taken to this Court.
2. The first assignment of error is to the effect that the
commissioners issuing the warrant had no jurisdiction, because the
complaint of Greer was upon information and belief, and not such as
was required by the treaty, or by section 5270 of the Revised
Statutes. The first two complaints, which were dismissed, as well
as the first count of the complaint under which the proceedings
were finally had, were obviously insufficient, since the charges
were made solely upon information and belief, and no attempt was
made even to set forth the sources of information or the grounds of
affiant's belief. This is bad, even in extradition proceedings,
which are entitled to as much liberality of construction in
furtherance of the objects of the treaty as is possible in cases of
a criminal nature. Nor is it saved by the fact that Greer described
himself as government detective for the Province of Ontario and
duly authorized by the Attorney General to act as the agent of the
government to prosecute extradition proceedings.
Ex Parte
Smith, 3 McLean 121, 135;
Ex Parte Lane, 6 F. 34;
In re Young Mfg. Co. (1900) 2 Ch. 753.
A citizen ought not to be deprived of his personal liberty upon
an allegation which, upon being sifted, may amount to nothing more
than a suspicion. While authorities upon this
Page 180 U. S. 375
subject are singularly few, it is clear that a person ought not
to be arrested upon a criminal charge upon less direct allegations
than are necessary to authorize the arrest of a fraudulent or
absconding debtor.
Smith v. Luce, 14 Wend. 237;
In re
Bliss, 7 Hill 187;
Proctor v. Prout, 17 Mich. 473. So
too, in applications for injunctions, the rule is that the material
facts must be directly averred under oath by a person having
knowledge of such facts.
Waddell v. Bruen, 4 Edw.Ch. 671;
Armstrong v. Sanford, 7 Minn. 49.
We do not wish, however, to be understood as holding that, in
extradition proceedings, the complaint must be sworn to by persons
having actual knowledge of the offense charged. This would defeat
the whole object of the treaty, as we are bound to assume that no
foreign government possesses greater power than our own to order
its citizens to go to another country to institute legal
proceedings. This is obviously impossible. The ordinary course is
to send an officer or agent of the government for that purpose, and
Rev.Stat. sec. 5271 makes special provision that, in every case of
complaint and of a hearing upon the return of the warrant of
arrest, any depositions, warrants, or other papers offered in
evidence shall be admitted and received for the purpose of such
hearing if they shall be properly and legally authenticated so as
to entitle them to be received as evidence of the criminality of
the person so apprehended, by the tribunals of the foreign country
from which the accused party shall have escaped, and copies of any
such depositions, warrants, or other papers shall, if authenticated
according to the law of such foreign country, be in like manner
received as evidence, of which authentication the certificate of
the diplomatic or consular officer of the United States shall be
sufficient. This obviates the necessity which might otherwise exist
of confronting the accused with the witnesses against him. Now it
would obviously be inconsistent to hold that depositions, which are
admissible upon the hearing, should not also be admitted for the
purpose of vesting jurisdiction in the commissioner to issue the
warrant. Indeed, the words of the statute "in every case of
complaint" seem to contemplate this very use of them. If the
officer of the foreign government has no personal knowledge
Page 180 U. S. 376
of the facts, he may with entire propriety make the complaint
upon information and belief, stating the sources of his information
and the grounds of his belief and annexing to the complaint a
properly certified copy of any indictment or equivalent proceeding,
which may have been found in the foreign country, or a copy of the
depositions of witnesses having actual knowledge of the facts,
taken under the treaty and act of Congress. This will afford ample
authority to the commissioner for issuing the warrant.
But while, as already observed, the first count is bad by reason
of its unsupported allegations upon information and belief, the
second count contains a wholly different charge of larceny of a
horse, cart, and harness, the third of breaking and entering a
private bank in Aurora, and the fourth of breaking and entering a
building in Toronto. Each of these counts charges a distinct
offense, and each purports on its face to be made upon the personal
knowledge of the complainant. While it is possible that he may have
intended to make all these charges upon information and belief, the
natural intendment of the last three counts is that the affiant
swore to facts within his personal knowledge. If it be true, as
stated by writers upon criminal procedure (Bishop, Crim.Proced.
§ 429), that each count must be sufficient in itself, and
averments in one cannot aid defects in another, it would seem to
follow by parity of reasoning that defects in one ought not to
impair the sufficiency of another. Upon the whole, we think the
complaint is sufficient.
3. By the second assignment, petitioners insist that the
commissioner lost jurisdiction in the premises by continuing the
proceedings from June 14 to June 25, a period of eleven days, in
supposed violation of section 67, article 7, of chapter 79 of the
Revised Statutes of Illinois, governing continuances by justices of
the peace and examining magistrates, which enacts that
"the justice before the commencement of the trial may continue
the case not exceeding ten days at any one time on consent of the
parties or on any good cause shown."
It is insisted that this statute controls proceedings before
commissioners of the United States in extradition cases by virtue
of the treaty and of the several acts of Congress prescribing the
duties of commissioners.
Page 180 U. S. 377
The treaty only provides in article 6 (26 Stat. 1508, 1510),
that
"the extradition of fugitives under the provisions of this
convention and of the said Tenth Article [of the treaty of August
9, 1842] shall be carried out in the United States and in Her
Majesty's dominions, respectively, in conformity with the laws
regulating extradition for the time being in force in the
surrendering states."
This evidently contemplates the laws of the United States
regulating extradition, and has no reference whatever to the laws
of the particular state within which the proceedings are taken.
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, sec. 19, 29 Stat. 140, c. 252),
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"
"agreeably 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
Page 180 U. S. 378
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."
4. The fifth assignment questions the constitutionality of
Rev.Stat. section 5270, first because it does not provide for any
mode of procedure relating to continuances, change of venue, bail,
etc., before commissioners appointed in extradition matters;
second, because Congress had no power to confer upon a district
judge of the United States authority to create such inferior
courts; third, because Congress has not created such court and
established its jurisdiction. We are unable to appreciate the force
of this objection. Congress, having provided for commissioners, who
are not judges in the constitutional sense, had a perfect right
under Article II, Section 2, Paragraph 2 of the Constitution, to
invest the district or circuit courts with the power of
appointment. The only qualification required of a commissioner to
act in extradition cases is that suggested by Rev.Stat. section
5270, that he shall be "authorized so to do by any of the courts of
the United States." We know of no authority holding that Congress
may not vest the courts with this power, and we are reluctant to
create one.
The other assignments question the power of the commissioner to
deny bail, which becomes immaterial here, as well as the finding of
the district judge upon the facts, which is not examinable upon a
writ of habeas corpus. There is nothing, too, in the additional
assignment that the commissioner took the matter under advisement
and abused his discretion in the matter of continuance, of which we
see no evidence.
There are also noticed in appellant's brief certain objections
to the complaint which might have been successfully urged against a
formal indictment for the same offense, but which do not constitute
"a plain error not assigned or specified," of which, under rule 21
of this Court, subdivision 4, we may take notice
Page 180 U. S. 379
at our option in the absence of a special assignment. The
technicalities of an indictment are not requisite in a complaint.
State v. Holmes, 28 Conn. 230;
Commonwealth v.
Keenan, 139 Mass.193;
Rawson v. State, 19 Conn. 292;
Keeler v. Milledge, 24 N.J.L. 142;
Williams v.
State, 88 Ala. 80;
State v. McLaughlin, 35 Kan.
650.
Petitioners have no just reason to complain of the action of the
district court in remanding them to the custody of the marshal, and
its judgment is therefore
Affirmed.
