In re Washburn , 3 Wheel. Cr. Cas. 473 ( 1819 )

The Chancellor.

It is the.law and usage Of nations, resting on the plainest principles of justice and public utility, to deliver up offenders charged with felony and other high crimes, and fleeing from the country in which the crime was committed, into a foreign and friendly jurisdiction. When a case of that kind occurs, it becomes the duty of the civil magistrate, on due proof of the fact, to commit the fugitive, to the end that a reasonable time may be afforded for the government here to deliver him up, or for the foreign government to make the requisite application to the proper -authorities here, for his surrender. Who are the proper authorities in this case, whether it be the executive of the state, ■or, as the rule is international, the executive authority of the United States, the only regular organ of communication with foreign powers, it is not now the occasion to discuss. It is sufficient to observe, that if no such application be made, and duly recognized, within a reasonable time, the prisoner will then be entitled to his discharge upon habeas corpus. If the judicial authority has afforded sufficient means and v w ... opportunity for the exercise of this act of commutative justice, it has done its duty. Whether such offender be a subject of the foreign government, or a citizen of this country, would make no difference in the application of the principle; though, if the prisoner, as in this case, be a subject of the foreign country, the interference might meet with less repugnance.

This doctrine is supported equally by reason and authority.

Vattel observes (b. 2. ch. 6. s. 76.) that to deliver up one’s own subjects to the offended state, there to receive justice, is pretty generally observed, with respect to great crimes, or such as are equally contrary to the laws and the safety of all nations. Assassins, incendiaries and robbers, he says, are seized every where, at the desire of the sovereign in the place where the crime was committed, and delivered up to his justice. The sovereign who refuses to deliver up the guilty, renders himselfj in some measure, an accomplice in the injury, and becomes responsible for it. Professor Martens also, in his Summary of the Law of Nations, p. 107., says, that according to modern custom, a criminal is frequently sent back to the place where the crime was committed, on the request of a power who offers to do the like service, and that we often see instances of this.

Grotius, who is of still higher authority, declares, (b. 2. ch. 21. s. 3, 4, 5.) that the state is accountable for the crimes of its subjects, committed abroad, if it affords them protection ; and, therefore, the state where the offender resides, or has fled to,j^ught, upon application and examina-" tion of the case, either punish him according to his demerit, nr deliver him up to^he foreign state. He says, further, that his Grotius, who is of still higher authority, declares, (b. 2. ch. 21. s. 3, 4, 5.) that the state is accountable for the crimes of its subjects, committed abroad, if it affords them protection ; and, therefore, the state where the offender resides, or has fled to,j^ught, upon application and examina-" tion of the case, either punish him according to his demerit, nr deliver him up to^he foreign state. He says, further, that his ⁺ doctrine applies equally to the subjects of the government in which the offender is found, and to fugitives from the foreign state. This learned jurist finally concludes, that this right of demanding fugitives from justice has, in modern times, in most parts of Europe, been confined, in . . r -r , practice, to crimes that concern the public safety, or which were of great atrocity, and that lesser offences were rather connived at, unless some special provision, as to them,,existed by treaty.1 '

Heineccius, in his commentary on these passages, (Proelec. in Grot, h. t.) admits that the surrender of a citizen, who commits a crime in a foreign country, is according to the law of nations; and he says further, that it is to be deduced from the principles of natural law. We ought either to punish the offender ourselves, or deliver him up to the foreign government for punishment So Burlemaqui, (part 4. c. 3. s. 23 to 19.) follows the opinion of Grotius, and maintains that the duty of delivering up fugitives from justice is of common and indispensable obligation.

It has been frequently declared, that the law of nations was part of the common law of England. (3 Burr. 1481. 4 Burr. 2016.) And if we recur to the English decisions, which may be considered as declaratory of public law on the point, we shall perceive a full recognition of this general doctrine.

In Rex v. Hutchinson, Trin. 29. Car. 2. (3' Keb. 785.) it appeared to the K. B. on habeas corpus, that the defendant was committed on suspicion of murder, in Portugal, and the court refused to bail him. And again, in the case of Colonel Lundy, (2 Pent. 314.) it was agreed, on a consultation of all the judges, that there was nothing in the. habeas corpus act to prevent a person guilty of a capital offence in Ireland, (then a distinct kingdom, though under the same king,) to be sent there to be tried. In the case of Rex v. Kimberly, (Sir. 848. Barnard. K. B. vol. i. 225. Fitzgib. 111. S. C.) the same point underwent a further discussion. The defendant being committed by a magistrate, for a felony done in Ireland, “ to be detained till there . should be proper means found out to convey him to Ireland, to be tried,” was brought into the K. B. by habeas corpus. Strange, for the prisoner, moved for his discharge, or for ...... ... . , , , bail, insisting that justices oí the peace had no power over crimes in Ireland, and that the proviso in the corpus act gave no power as to offences in Ireland, which was a distinct kingdom, and that it was against the habeas corpus act to remove the prisoner to Ireland. But the court referred to the above cases, and remanded the prisoner; observing that the form of the commitment was proper, and that if the prisoner was not removed to Ireland in a reasonble time, application might be again made to the court for his discharge. To the same effect are the observations of the Court of Exchequer, in East India Company v. Campbell, (1 Ves. 246.) in which it was said, that '* a person may be sent abroad by government and tried, though not punishable in England ; like a case of one who was concerned in a rape in Ireland, and sent over there by the government, to be tried, though the K. B. refused to do it. Government may send persons to answer for a crime wherever committed, that he may not involve his country, and to prevent reprisals.”

In support of the same doctrine and practice, we may refer to the uncontradicted remark of Heath, J. in the late case of Mure v. Kaye, (4 Taunt. 34.) and which Mr. Chitiy, in the book cited by the counsel, seems to regard as law.

“ It has generally been understood,” he observes, “ that wheresoever a crime has been committed, the criminal is punishable according to the lex loci of the country, against the law of which the crime was committed; and by the comity of nations, the country in which the criminal has been found, has aided the police of the county ⁺ gainst which the crime was committed, in bringing the criminal to punishment. In Lord Loughborough's time, the crew of a Dutch ship mastered the vessel and ran away with her, and brought her into Heal, and it was held, we might seize them and send them to Holland. And the same has always been the law of all civilized countries.”

Though these observations come in the shape of a dictum of a single judge, yet it ought to be understood, that Heath was a judge of very great experience, having sat upon the bench of the C. P., for the long period of forty years, and he was right, says Ch. J. Gibbs, in most cases that ever came before him.

Lord Coke says, (3 Inst. 180.) that “ it is holden, and so it hath been resolved, that divided kingdoms under several kings, in league, one with another, are sanctuaries for servants or subjects, flying for safety from one kingdom to another, and upon demand made by them, are not, by the laws and liberties of kingdoms, to be delivered.” If, by the laws and liberties of kingdoms, he means the laws and usages of nations, the remark is unfounded in fact, and contradicted by history, and by the great work of Grotius, which was published in the lifetime of Lord Coke. With respect to the force and justness of this passage, we may refer to Wynne’s Treatise on the Law and Constitution of England. (Eunomus, Dialog. 3. s. 67.) He asks, how has Lord Coke supported his doctrine? He says, “ it is ' holden, and so it has been resolved-but he neither tells us when, nor where, it was resolved. Wynne goes on to observe, that the assertion seems directly against the law of nations, and that, “ if, from the very nature of society, subjects are answerable to their own nation for their criminal conduct, by the law of nations, they may be justly demanded of foreign states to which they fly, and the refusal of delivering them up is a just cause of war.” He observes, further, that to prevent protection of fugitives by clauses in a treaty, only operates as a recognition, not a creation of right.

The 27th article of the treaty of 1795, between the United States and Great Britain, provided for the delivery of criminals charged with murder or forgery; but that article was only declaratory of the law of nations, as were also a number of other articles in the same treaty. This was the . J case, for instance, with the provision in the 21st article, that it should not be lawful for foreign privateers, who have commissions from a prince or state in enmity with either nation, to arm their ships in the ports of either; and, also, with the provision in the 25th article, that neither party should permit the ships or goods of the other to be taken by foreign force, within the bays, ports, or rivers,, of their territories. These articles, to use the language of Wynne, were the recognition, not the creation of right, and are equally obligatory upon the two nations, under the sanction of public law, since the expiration of that treaty, as they were before.

There is nothing in the habeas corpus act which controls the application of this general law. The only provision in it which has any possible relation to the case, is that which declares, “ that no citizen of this state, being an inhabitant or resident within it, shall be sent prisoner to any place whatsoever out of this state, for any crime or offence committed within this state.” The prohibition is thus expressly confined to crimes committed within this state.

It has been suggested, that theft is not a felony of such an atrocious and mischievous nature, as to fall within the usage of nations on this point. But the crimes which be- . long to this ⁺ eognizance of the law of nations, are not specially defined ; and those which strike deeply at the rights of property, and are inconsistent with the safety and harmony of commercial intercourse, come within the mischief to be prevented, and within the necessity as well as the equity of the remedy. If larceny may be committed, and the fugitive protected, why not compound larceny, as burglary and robbery, and why not forgery and arson ? They are all equally invasions of the rights of property, and incompatible with the ends of civil society. Considering the great and constant intercourse between this state and the provinces of Canada, and the entire facility of passing from one dominion to the other, it would be impossible for the inhabitants on the respective frontiers to live in security, or to maintain a friendly intercourse with each other, • if thieves could escape with impunity, merely by crossing the territorial line. The policy of the nation, and the good sense of individuals, would equally condemn such a dangerous doctrine. During the existence of the treaty of 1795, it might well have been doubted, whether the two governments liad not, by that convention, restricted the application of the rule to the two specified cases of murder and forgery, for it is a maxim of interpretation, that enumeratio unius est exclusio alterius. But if it were so, yet upon the expiration of that treaty, the general and more extensive rule of the law of nations revived.

2. The difficulty, then, in this case, is not as to a want of jurisdiction, but the proof is insufficient to detain the prisoner. There is no evidence that the bills offered in exchange at the bank in Troy, were the same bills that were stolen at Kingston, and however suspicious the conduct of the prisoner, and his associate, may be, and however untrue his allegations as to Paries, yet, as we have no proof that the prisoner committed the theft, or that he or his associate were in possession of the stolen goods, he must, on that ground, and on that ground alone, be discharged.

The evidence to detain the party, for the purpose of surrender, must be sufficient to commit the party for trial, if the offence was committed here. The admonition in Groiius, is not to be forgotten — non dacet homines dedere causa non cognita.

Prisoner discharged.

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It is the law of nations to deliver up offenders charged with high crimes, and who have fled from the country where the crimes ' were committed. And the civil •magistrate may commit them for a reasonable time for that purlpose.

Lord Code’s (Opinion not correct.

Wynne's Eunomus.

The 27th artreaty of 1795, ü. S. and G. declaratory of the law of nations.