State v. Brewster , 7 Vt. 118 ( 1835 )

The opinion of the court was delivered by

Phelps, J.

Whether the matter on which the prisoner relies is more properly the ground of a motion to dismiss, or the subject of a plea in bar, is a question of form merely, not important to our present purpose.

It is observable, that the case does not state, that the respondent was brought out of Canada, without the assent of the constituted authorities of that province. If such assent be presumed the case becomes one of ordinary and common occurrence, and one in which, I believe, the practice of all civilized nations is the same. Whether there be any principle of international law, which requires of an independent sovereignty to surrender an offender fleeing from justice to its dominions, and if any, to what cases it applies, is a question not necessary to be discussed. -The practice is general, (whether from comity, or otherwise, it is unnecessary to inquire,) to surrender such offenders, in aggravated cases ; and when thus surrendered to the jurisdiction of that nation whose laws have been violated, it is, we believe, the universal practice to try, convict and punish. Such has been our practice, with respect to offenders reclaimed from other states, and from the province of Canada. This universal practice sufficiently shows, that immunity from .punishment is not a legal 'consequence of having takern refuge in a foreign jurisdiction, to be claimed as a matter of right'by the offender. If it were so, the act of such foreign government, in surrendering the offender, would be in itself improper, and could have no legal tendency to deprive him of this right. It is impossible to conceive any sound principle upon which such an immunity can be conceded to the offender. The idea that it could exist at all, probably originated in the difficulty with which offenders are reclaimed, and the extreme jealousy with which every nation guards its own dignity in this particular — a jealousy equally due to its own dignity and to the citizen under its protection.

It is a well settled rule of-, international law, that a foreigner is bound to regard the criminal laws of the country in which he may sojourn, and for any offence there committed, he is amenable to those laws. In this case, the offence, if committed at all, was committed within our jurisdiction, and is punishable by our laws. The respondent, although a foreigner, is, if guilty, equally subject to our jurisdiction with our own citizens. His-esciipe into Canada did not purge the offence, nor- oust our jurisdiction. Being retaken and brought in fact- within our jurisdiction, it is not for us to inquire by what means, or in what precise manner, he may have been brought within the reach of justice.

It becomes then immaterial, whether the prisoner was brought out of Canada with the assent of the authorities of that country or not. If there were any thing improper in the transaction, it was not that the prisoner was entitled to protection on his own account. The illegality, if any, consists in a violation of the sovereignty of an independent nation. If that nation complain, it is a matter which concerns the political relations of the two countries, and in that aspect, is a subject not within the constitutional powers of this court.

Whether the authorities of Canada would have surrendered the prisoner, upon due application, is a question of national comity, resting in discretion. Their power to do so will not be questioned. If they have the power to surrender him, they may permit him to be taken. If they waive the invasion of their sovereignty, it is not for the respondent to object, inasmuch, as for this offence, he is, by the law of nations, amenable to our laws.

Were this an. attempt to subject the prisoner to the exercise of our jurisdiction, in a case not cenfessedly within it, the case would be different. Had the act been committed in Canada, however injurious to our citizens it might have been, the law of nations would have afforded a protection which this court would be bound to respect.

We,are also of opinion, that the charge was correct. If stolen goods were found in possession of the prisoner, it is prima facie evidence of guilt. Whether they were to be considered as in his possession, and under what circumstances, was a question of fact; and how far those circumstances sustained'or rebutted the presumption of guilt, was surely a question for the jury; and if they were satisfied that the presumption was equally strong, as if the goods had been found upon his person, or in his house, the consequence would be the same, and the proof of guilt equally satisfactory.

Judgment that the prisoner take nothing by his exception.