Extradition proceedings before a committing magistrate thereto
duly authorized, where jurisdiction exists, and there is competent
legal evidence tending to establish the criminality alleged cannot
be interfered with by habeas corpus.
In this case, the writ of habeas corpus was issued before the
examination by the commissioner was entered upon, and the inquiry
was confined to the question of his jurisdiction. He had
jurisdiction if there was a treaty between this and the demanding
country, and the commission of extraditable offences was
charged.
Offenses were charged to have been committed "contrary to the
laws of Prussia," and although the violated laws were prescribed by
imperial authority, they were nevertheless the laws of Prussia, and
were being administered as such by the Royal Prussian Circuit Court
before which the charges were pending.
As the German government has officially recognized, and
continues to recognize, the treaty between the United States and
the Kingdom of Prussia of June 16, 1852, as still in force, and not
terminated because of impossibility of performance, and the
Executive Department of this government has accepted that view and
proceeded accordingly, it is not for our courts to question the
correctness of the conclusions of the German government as to the
effect of the adoption of the Constitution of the German
Empire.
The question whether power remains in a foreign state to carry
out its treaty obligations is in its nature political, and it is
not within the province of the courts to interfere with the
conclusions of the political department in that regard.
August 15, A.D. 1901, Dr. Walther Wever, Imperial German Consul
at Chicago, filed his complaint before Mark A. Foote, Esq., a
Commissioner of the United States in and for the Northern District
of Illinois, and specially authorized to issue warrants for the
apprehension of fugitives from justice of foreign governments,
stating that he was
"the duly accredited official agent and representative of the
German Empire at Chicago
Page 184 U. S. 271
and also the Kingdom of Prussia, forming a part of said German
Empire,"
and charging that one Gerhard Terlinden, alias Theodor Graefe, a
subject of the Kingdom of Prussia, did, within the first six months
of the year 1901, "commit within the jurisdiction of the said
Kingdom of Prussia various crimes of forgery and counterfeiting and
the utterance of forged papers" in that, as a director of the
Gerhard Terlinden Stock Company, organized and doing business in
said Kingdom, said Terlinden forged and counterfeited certain
certificates of the stock of said company amounting to about a
million and a half of marks, and put out, uttered, and disposed of
the same to Robert Suermont of the City of Aachen, Prussia; the
Amsterdamsche Bank, Netherlands; the Disconto Gesellschaft, a
corporation doing business in Berlin, Prussia, and other persons
and corporations, with felonious intent to cheat and defraud them
respectively. The complaint further charged that Terlinden was at
the time of committing said crimes a resident of the City of
Duisburg and a citizen of said Kingdom of Prussia; that he was a
fugitive from said Kingdom; that, on or about the first day of
July, 1901, he fled into the jurisdiction of the United States of
America for the purpose of seeking an asylum therein; that he was
now said to be concealed within the Northern District of Illinois
or in the Eastern District of Wisconsin, and that the crimes with
which he was charged were crimes embraced within the treaty of
extradition between the United States and the Kingdom of Prussia,
concluded on the 16th day of June, 1852, and ratified May 30,
1853.
It was therefore prayed that a warrant be issued for the
apprehension and commitment of Terlinden
"in order that the evidence of his criminality may be inquired
into, and the said Gerhard Terlinden, alias Theodor Graefe, may be
extradited and delivered up to the justice of the said Kingdom of
Prussia in accordance with the stipulations of said treaty and the
acts of Congress passed in pursuance thereof."
The complaint was duly verified and the commissioner issued his
warrant, which was placed in the hands of John C. Ames, United
States Marshal in and for the Northern District of Illinois, and
Terlinden was apprehended and held to be dealt with according to
law.
Page 184 U. S. 272
Subsequently and on September 25, 1901, Dr. Wever, in his
capacity aforesaid, made another complaint before the commissioner,
charging (1) the forging of a large number of stock certificates of
the Gerhard Terlinden Stock Company; (2) uttering said stock
certificates, well knowing them to be forged; (3) forging and
counterfeiting the steel stamp of the Royal Prussian Revenue Office
at Duisburg, Prussia; (4) imprinting said forged steel stamp upon
the forged certificates of stock so as to make it appear that the
tax required by the Prussian revenue law had been paid on said
certificates issued by the company in said Kingdom, and thus to
give said forged certificates the appearance of genuineness; (5)
uttering forged certificates of stock with said forged stamp
thereon; (6) forging the acceptance of one Heinrich Schulte to a
certain draft for nine thousand five hundred and eighty-two marks
and thirty-five pfennigs, and uttering the same; (7) forging the
acceptance of one Wilhelm Seven to two certain drafts for the sums
of twenty-six thousand two hundred and fifty marks and of
twenty-five thousand nine hundred and twelve marks and forty-five
pfennigs, respectively, and uttering the same; or causing all these
things to be done; "contrary to the laws of the Kingdom of
Prussia."
It was stated that these several crimes were fully shown by the
testimony of a number of witnesses heard before the examining judge
of the Landgericht at Duisburg in the Kingdom of Prussia,
"a court of competent jurisdiction in which the matter of the
penal investigation instituted against the said Gerhard Terlinden,
alias Theodor Graefe, is now pending, in order that he may answer
for said several crimes,"
and with the complaint were submitted copies of the depositions
of the witnesses, together with a copy of the warrant of arrest
issued by that court against Terlinden "and of the provisions of
the Penal Code of the German Empire applicable to said several
crimes and providing punishment therefor," all of which were duly
authenticated, and also a verified English translation thereof.
This second complaint also showed that the crimes charged were
committed within the jurisdiction of the Kingdom of Prussia, and
that Terlinden was at the time of committing the same, a subject of
that Kingdom, and the commissioner in
Page 184 U. S. 273
accordance with the prayer of the complaint issued another
warrant, which was served on Terlinden the following day, he being
discharged from arrest on the first warrant. On the 17th of
October, before any evidence was taken before the commissioner,
Terlinden presented to the District Court of the United States for
the Northern District of Illinois his petition praying for a writ
of habeas corpus on the following grounds:
"1. No treaty or convention for the extradition of fugitives
from justice exists between the United States and the German
Empire."
"2. That the treaty or convention for the extradition of
fugitives from justice concluded between the United States and the
Kingdom of Prussia on the 16th day of June, 1852, and ratified May
30, A.D. 1853, was terminated by the creation of the German Empire
and the adoption of the Constitution of said Empire in A.D. 1871,
and that no treaty or convention for the extradition of fugitives
from justice has been concluded between the United States, on the
one part, and the Kingdom of Prussia or the German Empire, on the
other, since said time."
"3. Said complaint does not charge an extraditable offense under
the provisions of the treaty of 1852, concluded between the United
States and Prussia and other German states, were said treaty still
in force and of binding effect."
"4. Your petitioner is not guilty of any extraditable offense
under the provisions of said treaty of 1852, were said treaty still
in force and of binding effect."
"5. All proceedings had or attempted to be had before said
commissioner under said complaint and warrant are illegal, void,
and without authority in law because said commissioner did not have
jurisdiction over the person of this petitioner."
The writ of habeas corpus was issued, and the Marshal for the
Northern District of Illinois filed his return October 21, setting
forth that he
"arrested said petitioner within said district on the 26th day
of September, 1901, upon a warrant duly issued by Mark A. Foote, a
United States commissioner specially appointed and authorized by
the District Court of the United States for the Northern District
of Illinois to hear applications for extradition and to issue
warrants therefor, which
Page 184 U. S. 274
said warrant was duly issued by said commissioner upon a
complaint duly made by Walther Wever, Imperial German Consul at
Chicago as representative of the Kingdom of Prussia, charging said
Gerhard Terlinden, who, it appears, falsely assumed in this country
the name of Theodore Graefe, with having, as a subject of the
Kingdom of Prussia and within the jurisdiction of the said Kingdom,
committed the crimes of forgery, counterfeiting, and the utterance
of forged instruments, and with being a fugitive from justice of
said Kingdom of Prussia. . . ."
The matter was brought on for hearing October 21, and after
arguments of counsel, the court gave leave to present briefs and
adjourned the hearing to October 28. On that day, the relator filed
with the clerk of the court a traverse reciting that with the
complaint of September 26 there were filed
"copies of the original testimony and translations of the same
contained in the depositions taken before certain court officials
in the Empire of Germany relative to the alleged offenses with
which said complaint charges your petitioner; that said complaint
refers to said depositions so filed in words following, to-wit:
[Then setting forth the passages of the complaint to the effect
that Dr. Wever therewith submitted 'to the commissioner and files
with this complaint a copy of all depositions of witnesses taken in
said matter, together with a copy of the warrant of arrest issued
by said court against the said Gerhard Terlinden, alias Theodor
Graefe, and of the provisions of the Penal Code of the German
Empire applicable to said several crimes and providing punishment
therefor.']"
The traverse then continued:
"That the provisions of the Criminal Code of the German Empire
applicable to the facts and circumstances of this case as shown by
the evidence hereto annexed are sections 240, 47, 49 first
paragraph; section 360 fourth and fifth paragraphs; section 275 and
section 56 of the Code of Criminal Procedure, also section 234 of
the Civil Code, a correct translation of which sections are hereto
annexed and marked Exhibit 'B' and made a part hereof."
"That said depositions so filed do not show or tend to show that
your petitioner is guilty of any extraditable offense; that
Page 184 U. S. 275
a copy of said deposition so referred to in said complaint and
heretofore filed with said commissioner is hereto attached marked
Exhibit 'A' and made a part of this traverse."
"Wherefore your petitioner prays that the return of the United
States marshal herein be dismissed and your petitioner
discharged."
Copies of depositions were attached to the alleged traverse, but
no copy of the warrant of arrest issued by the court at Duisburg,
or of the provisions of the Penal Code attached to the
complaint.
An affidavit accompanied the traverse to the effect that affiant
as an expert had made the annexed translations of certain sections
and parts of sections of the German Criminal and Civil Codes.
October 29, to which day the hearing of the cause had been
continued, Terlinden presented a petition for a writ of certiorari
to bring before the court
"for its consideration the depositions, provisions of the German
Criminal Code and copy of the original warrant issued by said
German court heretofore referred to."
This application was denied by the district court, October 31,
and the court ordered
"that the question of whether since the formation of the German
Empire the extradition treaty concluded between the government of
the United States and the Kingdom of Prussia in 1852 is still in
force or abrogated by the Constitution of the German Empire, be
submitted to the court on briefs to be filed,"
and continued the hearing. It was also ordered
"hat said relator be remanded to the custody of the marshal, and
that the motion to stay all further proceedings before the United
States commissioner be, and the same hereby is, denied."
Thereafter, on November 5, the district court entered an order
finding that the petitioner was lawfully restrained of his liberty,
directing the petition to be dismissed, and remanding petitioner,
from which an appeal was taken to this Court. Errors were assigned,
in substance, that the court erred in declining to hold that no
treaty exists between the United States and the Kingdom of Prussia
or the German Empire, in assuming
Page 184 U. S. 276
the existence of such treaty, in denying the right to introduce
evidence for the purpose of showing that no extraditable offense
had been committed, in denying the application for a certiorari, in
holding that the record showed the commission of an extraditable
offense.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The Treaty of June 16, 1852, between the United States and the
Kingdom of Prussia and other states of the Germanic Confederation
included in or which might accede to that convention provided that
the parties thereto should, upon requisition,
"deliver up to justice all persons who, being charged with the
crime of murder, or assault with intent to commit murder, or
piracy, or arson, or robbery, or forgery, or the utterance of
forged papers, or the fabrication or circulation of counterfeit
money, whether coin or paper money, or the embezzlement of public
moneys, committed within the jurisdiction of either party, shall
seek an asylum, or shall be found within the territories of the
other."
10 Stat. 964, 966.
Pursuant to section 5270 [
Footnote 1] of the Revised Statutes (and the acts
Page 184 U. S. 277
from which that section was brought forward), complaint was duly
made before a commissioner appointed and authorized by the District
Court of the United States for the Northern District of Illinois to
hear applications for extradition and to issue warrants therefor,
charging Terlinden with having as a subject of the Kingdom of
Prussia, and within the jurisdiction of that Kingdom, committed the
crimes of forgery, counterfeiting, and the utterance of forged
instruments, and with being a fugitive from the justice of said
Kingdom.
The complaint charged with much particularity, among other
things, the forging and uttering of forged stock certificates of
the Gerhard Terlinden Stock Company; the forging of the revenue
stamp of the German government employed by the Royal Prussian
Revenue Office, and the forging and uttering of several enumerated
acceptances.
Attached to the complaint and referred to therein were duly
authenticated [
Footnote 2]
copies of certain depositions taken before the examining judge of
the court of Duisburg, Prussia, in which an investigation against
Terlinden, that he might answer for said several crimes, was
pending, together with a copy of the warrant
Page 184 U. S. 278
for the arrest of Terlinden issued by that court, and of the
provisions of the Penal Code of the German Empire applicable to the
crimes in question and providing punishment therefor.
The commissioner issued his warrant, and Terlinden was
apprehended, whereupon and before the commissioner had entered upon
the hearing, Terlinden petitioned and obtained from the district
court the writ of habeas corpus under consideration.
The settled rule is that the writ of habeas corpus cannot
perform the office of a writ of error, and that, 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.
Ornelas v. Ruiz,
161 U. S. 502,
161 U. S. 508,
and cases cited;
Bryant v. United States, 167 U.
S. 104.
The statute in respect of extradition gives no right of review
to be exercised by any court or judicial officer, and what cannot
be done directly cannot be done indirectly through the writ of
habeas corpus. The court issuing the writ may, however,
"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."
Blatchford, J., in
In re Stupp, 12 Blatchf. 501;
Ornelas v. Ruiz, 161 U. S.
508.
By section 754 of the Revised Statutes, it is provided that the
complaint in habeas corpus shall set forth "the facts concerning
the detention of the party restrained, in whose custody he is
detained, and by virtue of what claim or authority, if known," and
by section 755 that the writ shall be awarded "unless it appears
from the petition itself that the party is not entitled
thereto."
Page 184 U. S. 279
On the face of the complaint, extraditable offenses were charged
to have been committed, and if petitioner desired to assert, as he
now does in argument, that it appeared from the depositions taken
before and the warrant of arrest issued by the court at Duisburg
and the provisions of the Criminal Code that such was not the fact,
they should have been set out.
Craemer v. Washington,
168 U. S.
128.
And this clearly must be so where, as in this case, the writ is
issued and petitioner undertakes to traverse the return. The return
was that Terlinden was arrested and held by virtue of warrants of
arrest and of commitment issued by the commissioner, under the
extradition acts, against Terlinden as a fugitive from the justice
of Prussia, and charged with the commission of crimes embraced by
the treaty of extradition with that Kingdom, and copies of the
warrants were attached as part thereof. The alleged traverse
referred to the complaint and annexed copies of the depositions
filed with it, but did not annex a copy of the warrant of arrest
issued by the court at Duisburg, or of the provisions of the Penal
Code made part of the complaint, and also annexed certain sections
and paragraphs of the Criminal Code of the German Empire, and of
the Code of Criminal Procedure, and of the Civil Code, as
applicable to "the facts and circumstances of the case," and then
alleged that the depositions did not show or tend to show guilt of
an extraditable offense.
This was manifestly insufficient. Petitioner could not select a
portion of the documents accompanying the complaint and ask the
court to sustain his conclusion of law thereon. Nor could he
subsequently supply the inadequacy of the traverse by a certiorari,
which could do no more, if it could be, in any view, properly
issued at that stage of the proceedings, than bring up what he
should have furnished in the first instance.
Generally speaking,
"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
Page 184 U. S. 280
preliminary examination unless palpably erroneous in law."
Onelas v. Ruiz, 161 U. S.
509.
Necessarily this is so, for where jurisdiction depends on the
merits, the decision is not open to collateral attack involving a
retrial, although if on the whole record the findings are
contradicted, the inquiry as to lack of jurisdiction may be
entertained.
In this case, the writ of habeas corpus was issued before the
examination by the commissioner had been entered upon, and his
jurisdiction was the only question raised. If he had jurisdiction,
the district court could not interfere, and he had jurisdiction if
there was a treaty and the commission of extraditable offenses was
charged.
But it is said that the offenses complained of were not
extraditable because their commission was averred to be "contrary
to the laws of Prussia," whereas the criminal laws asserted to have
been violated were those of the German Empire, and Prussia had no
criminal laws dealing with such offenses. Hence, it is argued that
the commissioner had no jurisdiction, because if an extradition
treaty existed, it was with Prussia, and not with the German
Empire, and if any crime was committed, it was against the German
Empire, and not Prussia.
It is true that, by Article 2 of the Constitution of the German
Empire, it was provided that
"within this territory, the Empire shall have the right of
legislation according to the provisions of this Constitution, and
the laws of the Empire shall take precedence of those of each
individual state."
And by Article 4:
"The following matters shall be under the supervision of the
Empire and its legislation: . . . 13. General legislation regarding
the law of obligations, criminal law, commercial law, and the law
of exchange; likewise judicial proceedings."
Counsel for petitioner states in his brief that, on January 1,
1872, the German Imperial Code went into effect, embracing
provisions as to the crime of forgery "contained in sections 267,
268, 146, and 149, the very sections quoted in the depositions
filed with the amended complaint." Counsel for respondent agrees
with this except that he includes sections or paragraphs
Page 184 U. S. 281
147 and 270. All these are given below as furnished by counsel
for respondent. [
Footnote 3]
And see Drage's Criminal Code of
Page 184 U. S. 282
the German Empire, 227, 266. The traverse set up that there were
filed with the complaint
"a copy of all depositions taken in said matter, together with a
copy of the warrant of arrest issued by said court against the said
Gerhard Terlinden, alias Theodor Graefe, and of the provisions of
the Penal Code of the German Empire applicable to said several
crimes, and providing punishment therefor."
The traverse did not set forth the warrant of arrest or the
provisions of the Code referred to, and merely attached certain
other provisions which it was averred were applicable. The
presumptions were against petitioner, apart from which accepting
the admissions of counsel, extraditable offenses were charged, if
the laws quoted applied, as we think cannot be denied. We are
unable to perceive that these laws were not the laws of Prussia,
although prescribed by imperial authority, and the record discloses
that they were being administered as such, in Prussia, by the Royal
Prussian Circuit court at Duisburg. The inquiry into the source of
the laws of the demanding government is not material, and the
objection is untenable.
It is obvious that the district court could not remove the case
from the commissioner by virtue of the writ of habeas corpus, and
that the court rightly declined to hear evidence, to grant the
certiorari, or to interfere with the progress of the case.
This brings us to the real question -- namely, the denial of the
existence of a treaty of extradition between the United States and
the Kingdom of Prussia, or the German Empire. In these proceedings,
the application was made by the official representative of both the
Empire and the Kingdom of Prussia, but was based on the extradition
treaty of 1852. The contention is that, as the result of the
formation of the German Empire, this treaty had been terminated by
operation of law.
Treaties are of different kinds and terminable in different
ways. The fifth article of this treaty provided, in substance, that
it should continue in force until 1858, and thereafter until the
end of a twelve months' notice by one of the parties of the
intention to terminate it. No such notice has ever been given, and
extradition has been frequently awarded under it during the entire
intervening time.
Page 184 U. S. 283
Undoubtedly treaties may be terminated by the absorption of
powers into other nationalities and the loss of separate existence,
as in the case of Hanover and Nassau, which became by conquest
incorporated into the Kingdom of Prussia in 1866. Cessation of
independent existence rendered the execution of treaties
impossible. But where sovereignty in that respect is not
extinguished, and the power to execute remains unimpaired,
outstanding treaties cannot be regarded as avoided because of
impossibility of performance.
This treaty was entered into by His Majesty the King of Prussia
in his own name and in the names of eighteen other states of the
Germanic Confederation, including the Kingdom of Saxony and the
free City of Frankfort, and was acceded to by six other states,
including the Kingdom of Wuertemburg, and the free Hanseatic City
of Bremen, but not including the Hanseatic free cities of Hamburg
and Lubeck. The war between Prussia and Austria in 1866 resulted in
the extinction of the Germanic Confederation and the absorption of
Hanover, Hesse Cassel, Nassau, and the free City of Frankfort, by
Prussia.
The North German Union was then created under the praesidium of
the Crown of Prussia, and our minister to Berlin, George Bancroft,
thereupon recognized officially not only the Prussian Parliament,
but also the Parliament of the North German United States, and the
collective German Customs and Commerce Union, upon the ground that,
by the paramount Constitution of the North German United States,
the King of Prussia, to whom he was accredited, was at the head of
those several organizations or institutions, and his action was
entirely approved by this government. Messages and Documents, Dep.
of state, 1867-1868, Part I, p. 601; Dip. Correspondence, Secretary
Seward to Mr. Bancroft, Dec. 9, 1867.
February 22, 1868, a treaty relative to naturalization was
concluded between the United States and His Majesty, the King of
Prussia, on behalf of the North German Confederation, the third
article of which read as follows:
"The convention for the mutual delivery of criminals, fugitives
from justice, in certain cases, concluded between the United States
on the one part and Prussia and other states of Germany on the
other
Page 184 U. S. 284
part, the sixteenth day of June, one thousand eight hundred and
fifty-two, is hereby extended to all the states of the North German
Confederation."
15 Stat. 615. This recognized the treaty as still in force, and
brought the Republics of Lubeck and Hamburg within its scope.
Treaties were also made in that year between the United States and
the Kingdoms of Bavaria and Wuertemburg, concerning naturalization,
which contained the provision that the previous conventions between
them and the United States in respect of fugitives from justice
should remain in force without change.
Then came the adoption of the Constitution of the German Empire.
It found the King of Prussia, the chief executive of the North
German Union, endowed with power to carry into effect its
international obligations, and those of his Kingdom, and it
perpetuated and confirmed that situation. The official promulgation
of that Constitution recited that it was adopted instead of the
Constitution of the North German Union, and its preamble declared
that
"His Majesty the King of Prussia, in the name of the North
German Union, His Majesty the King of Bavaria, His Majesty the King
of Wuertemburg, His Highness the Grand Duke of Baden, and His Royal
Highness the Grand Duke of Hesse, and by Rhine for those parts of
the Grand Duchy of Hesse which are situated south of the Main,
conclude an eternal alliance for the protection of the Territory of
the Confederation, and of the laws of the same, as well as for the
promotion of the welfare of the German people."
As we have heretofore seen, the laws of the Empire were to take
precedence of those of the individual states, and it was vested
with the power of general legislation in respect of crimes.
Article 11 read:
"The King of Prussia shall be the president of the
Confederation, and shall have the title of German Emperor. The
Emperor shall represent the Empire among nations, declare war, and
conclude peace in the name of the same; enter into alliances and
other conventions with foreign countries, accredit ambassadors, and
receive them. . . . So far as treaties with foreign countries refer
to matters which, according to article IV, are to be regulated by
the legislature of the Empire, the consent of the Federal Council
shall be required
Page 184 U. S. 285
for their ratification, and the approval of the Diet shall be
necessary to render them valid."
It is contended that the words in the preamble translated "an
eternal alliance" should read "an eternal union," but this is not
material, for admitting that the Constitution created a composite
state instead of a system of confederated states, and even that it
was called a confederated Empire rather to save the
amour
propre of some of its component parts than otherwise, it does
not necessarily follow that the Kingdom of Prussia lost its
identity as such, or that treaties theretofore entered into by it
could not be performed either in the name of its King or that of
the Emperor. We do not find in this Constitution any provision
which in itself operated to abrogate existing treaties or to affect
the status of the Kingdom of Prussia in that regard. Nor is there
anything in the record to indicate that outstanding treaty
obligations have been disregarded since its adoption. So far from
that being so, those obligations have been faithfully observed.
And without considering whether extinguished treaties can be
renewed by tacit consent under our Constitution, we think that, on
the question whether this treaty has ever been terminated,
governmental action in respect to it must be regarded as of
controlling importance. During the period from 1871 to the present
day, extradition from this country to Germany, and from Germany to
this country, has been frequently granted under the treaty, which
has thus been repeatedly recognized by both governments as in
force. Moore's Report on Extradition with Returns of all Cases,
1890.
In 1889, in response to a request for information on
international extradition as practiced by the German government,
the Imperial Foreign Office transmitted to our charge at Berlin a
memorial on the subject in the note accompanying which it was
said:
"The questions referred to, insofar as they could not be
uniformly answered for all the confederated German states, have
been answered in that document as relating to the case of
applications for extradition addressed to the Empire or
Prussia."
It was stated in the memorial, among other things:
"Insofar as bylaws and treaties of the Empire relating to
Page 184 U. S. 286
the extradition of criminals, provisions which bind all the
states of the union have not been made, those states are not
hindered from independently regulating extradition by agreements
with foreign states, or by laws enacted for their own
territory."
"Of conventions, some of an earlier, some of a later, period for
the extradition of criminals entered into by individual states of
the union with various foreign states there exist a number, and in
particular such with France, the Netherlands, Austria-Hungary, and
Russia. With the United States of America also extradition is
regulated by various treaties, as, besides, the treaty of June 16,
1852, which applies to all of the states of the former North German
Union, and also to Hesse, south of the Main, and to Wuertemburg,
there exist separate treaties with Bavaria and Baden, of September
12, 1853, and January 30, 1857, respectively."
Moore's Report, 93, 94.
Thus it appears that the German government has officially
recognized, and continues to recognize, the Treaty of June 16,
1852, as still in force, as well as similar treaties with other
members of the Empire, so far as the latter has not taken specific
action to the contrary or in lieu thereof.
And see Laband,
Das Staatsrecht des Deutschen Reiches (1894), 122-124, 142.
It is out of the question that a citizen of one of the German
states charged with being a fugitive from its justice should be
permitted to call on the courts of this country to adjudicate the
correctness of the conclusions of the Empire as to its powers and
the powers of its members, and especially as the Executive
Department of our government has accepted these conclusions and
proceeded accordingly.
The same is true as respects many other treaties of serious
moment with Prussia and with particular states of the Empire, and
it would be singular indeed if, after the lapse of years of
performance of their stipulations, these treaties must be held to
have terminated because of the inability to perform during all that
time of one of the parties.
In the notes accompanying the State Department's compilation of
Treaties and Conventions between the United States and Other
Powers, published in 1889, Mr. J. C. Bancroft Davis treats of the
subject thus:
Page 184 U. S. 287
"The establishment of the German Empire in 1871, and the complex
relations of its component parts to each other and to the Empire,
necessarily give rise to questions as to the treaties entered into
with the North German Confederation and with many of the states
composing the Empire. It cannot be said that any fixed rules have
been established."
"Where a state has lost its separate existence, as in the case
of Hanover and Nassau, no questions can arise."
"Where no new treaty has been negotiated with the Empire, the
treaties with the various states which have preserved a separate
existence have been resorted to."
"The question of the existence of the extradition treaty with
Bavaria was presented to the United States district court, on the
application of a person accused of forgery committed in Bavaria, to
be discharged on habeas corpus, who was in custody after the issue
of a mandate at the request of the minister of Germany. The court
held that the treaty was admitted by both governments to be in
existence."
"Such a question is, after all, purely a political one."
The case there referred to is that of
In re Thomas, 12
Blatchf. 370, in which the continuance of the extradition treaty
with Bavaria was called in question, and Mr. Justice Blatchford,
then district judge, said:
"It is further contended, on the part of Thomas, that the
convention with Bavaria was abrogated by the absorption of Bavaria
into the German Empire. An examination of the provisions of the
Constitution of the German Empire does not disclose anything which
indicates that then existing treaties between the several states
composing the confederation called the German Empire, and foreign
countries, were annulled, or to be considered as abrogated."
"Indeed, it is difficult to see how such a treaty as that
between Bavaria and the United States can be abrogated by the
action of Bavaria alone, without the consent of the United States.
Where a treaty is violated by one of the contracting parties, it
rests alone with the injured party to pronounce it broken, the
treaty being in such case not absolutely void, but voidable at the
election of the injured party, who may waive
Page 184 U. S. 288
or remit the infraction committed, or many demand a just
satisfaction, the treaty remaining obligatory if he chooses not to
come to a rupture. 1 Kent's Com. 174. In the present case, the
mandate issued by the government of the United States shows that
the convention in question is regarded as in force both by the
United States and by the German Empire, represented by its envoy,
and by Bavaria, represented by the same envoy. The application of
the foreign government was made through the proper diplomatic
representative of the German Empire and of Bavaria, and the
complaint before the commissioner was made by the proper consular
authority representing the German Empire and also representing
Bavaria."
We concur in the view that the question whether power remains in
a foreign state to carry out its treaty obligations is in its
nature political, and not judicial, and that the courts ought not
to interfere with the conclusions of the political department in
that regard.
Treaties of extradition are executory in their character, and
fall within the rule laid down by Chief Justice Marshall in
Foster v.
Neilson, 2 Pet. 314, thus:
"Our Constitution declares a treaty to be the law of the land.
It is consequently to be regarded in courts of justice as
equivalent to an act of the legislature whenever it operates of
itself without the aid of any legislative provision. But when the
terms of the stipulation import a contract, when either of the
parties engages to perform a particular act, the treaty addresses
itself to the political, not the judicial, department."
In
Doe v. Braden,
16 How. 635, where it was contended that so much of the treaty of
February 22, 1819, ceding Florida to the United States, as annulled
a certain land grant was void for want of power in the King of
Spain to ratify such a provision, it was held that whether or not
the King of Spain had power, according to the Constitution of
Spain, to annul the grant was a political, and not a judicial,
question, and was decided when the treaty was made and
ratified.
Mr. Chief Justice Taney said:
"The treaty is therefore a law made by the proper authority, and
the courts of justice have no right to annul or disregard any of
its provisions unless
Page 184 U. S. 289
they violate the Constitution of the United States. It is their
duty to interpret it and administer it according to its terms. And
it would be impossible for the Executive Department of the
government to conduct our foreign relations with any advantage to
the country, and fulfill the duties which the Constitution has
imposed upon it, if every court in the country was authorized to
inquire and decide whether the person who ratified the treaty on
behalf of a foreign nation had the power, by its Constitution and
laws, to make the engagements into which he entered."
Extradition may be sufficiently defined to be the surrender by
one nation to another of an individual accused or convicted of an
offense outside of its own territory, and within the territorial
jurisdiction of the other, which, being competent to try and to
punish him, demands the surrender.
In the United States, the general opinion and practice have been
that extradition should be declined in the absence of a
conventional or legislative provision. 1 Moore, Extradition on 21;
United States v. Rauscher, 119 U.
S. 407.
The power to surrender is clearly included within the
treatymaking power and the corresponding power of appointing and
receiving ambassadors and other public ministers.
Holmes
v. Jennison, 14 Pet. 569. Its exercise pertains to
public policy and governmental administration, is devolved on the
Executive authority, and the warrant of surrender is issued by the
Secretary of State as the representative of the President in
foreign affairs.
If it be assumed in the case before us -- and the papers
presented on the motion for a stay advise us that such is the fact
-- that the commissioner, on hearing, deemed the evidence
sufficient to sustain the charges, and certified his findings and
the testimony to the Secretary of State, and a warrant for the
surrender of Terlinden on the proper requisition was duly issued,
it cannot be successfully contended that the courts could properly
intervene on the ground that the treaty under which both
governments had proceeded, had terminated by reason of the adoption
of the Constitution of the German Empire, notwithstanding
Page 184 U. S. 290
the judgment of both governments to the contrary.
The decisions of the Executive Department in matters of
extradition, within its own sphere and in accordance with the
Constitution, are not open to judicial revision, and it results
that, where proceedings for extradition, regularly and
constitutionally taken under the acts of Congress, are pending,
they cannot be put an end to by writs of habeas corpus.
The district court was right, and its final order is
Affirmed.
MR. JUSTICE HARLAN did not hear the argument, and took no part
in the decision of the case.
[
Footnote 1]
"SEC. 5270. Whenever there is a treaty or convention for
extradition between the government 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 oath, charging any person found within the limits of
oath, charging any person found within the limits 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."
[
Footnote 2]
"SEC. 5271. 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 he 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, and the
certificate of the principal diplomatic or consular officer of the
United States resident in such foreign country shall be proof that
any such deposition, warrant, or other paper, or copy thereof, is
authenticated in the manner required by this section."
[
Footnote 3]
"267. Whoever with unlawful intent forges or counterfeits a
domestic or foreign public instrument or such a private instrument
as may be of importance for the purpose of proving rights or legal
relations, and makes use of the same for the purpose of deception,
is punishable with imprisonment for forgery of instruments."
"268. Forgery of an instrument made by anyone with the intent of
obtaining for himself or another a pecuniary gain, or to inflict
injury upon another, is punishable as follows:"
"1. When the instrument is a private instrument, with
imprisonment in the penitentiary up to five years, besides which a
fine not exceeding three thousand marks may be imposed."
"2. When the instrument is a public instrument, with
imprisonment in the penitentiary for a term not exceeding ten
years, besides which a fine of from one hundred and fifty to six
thousand marks may be imposed."
"In case of mitigating circumstances, imprisonment. in the
common jail will take place, which, in the case of forgery of a
private instrument, shall be not less than one week, and in case of
forgery of a public instrument, not less than three months."
"In addition to the imprisonment, a fine not exceeding three
thousand marks may be imposed."
"146. Whoever counterfeits inland or foreign coin or paper money
for the purpose of using such counterfeited money as genuine or
otherwise to put it in circulation;,or who, with like intent, gives
to genuine money, by alteration made upon the same, the appearance
of higher value, or gives to invalidated money the appearance of
money still current, shall be punished with imprisonment in the
penitentiary for not less than two years. Police surveillance is
also admissible. In the case of mitigating circumstances,
imprisonment in the common jail may be provided."
"147. The same penalty extends to all persons who circulate the
money counterfeited or altered by them with the above-mentioned
intent, and also to such persons who obtain counterfeited or
altered money and either utter the same or bring the same from
abroad with the intent of circulating the same."
"149. Certificates of indebtedness made payable to the holder,
bank notes, stock certificates, or preliminary certificates or
receipts taking their place, as well as coupons and dividends or
renewal certificates thereto belonging, which may be issued by the
Empire, the North German Confederation, a State of the
Confederation, or a foreign state, or by any other community,
corporation, company, or private person authorized to issue such
papers, are deemed equivalent to paper money."
"270. It is treated as equivalent to forgery of an instrument in
case anybody makes use of any forged or altered document, knowing
the same to be forged or altered, with intent to deceive."
