US SUPREME COURT DECISIONS

The rule that a writ of habeas corpus cannot be used as a writ of error applies to extradition proceedings, and if the committing magistrate had jurisdiction and there was competent evidence as to commission of the crime, his decision may not be reviewed on habeas corpus.

The accused in an extradition proceeding has not the right to introduce evidence simply because it would be admissible on the trial on plea of not guilty, nor is this right given by § 3 of the Act of August 3, 1882.

Section 3 of the Act of August 3, 1882, does not make evidence relevant, legal, or competent which would not theretofore have been competent on a proceeding in extradition.

The proceeding in extradition before the examining magistrate is not a trial, and the issue is not the actual guilt, but whether there is a prima facie case sufficient to hold the accused for trial.

There is not, nor can there be, a uniform rule as to admission of evidence for the accused in an extradition proceeding.

An examining magistrate may exclude evidence as to insanity of the accused; such evidence is in the nature of defense, and should be heard at the trial or on preliminary examination in the jurisdiction of the crime.

Construing the supplementary treaty of extradition with Italy of 1884 chanrobles.com-red

Page 229 U. S. 448

in the light of the original treaty of 1882 and of § 5270, Rev.Stat., it is not obligatory thereunder that the formal demand should be proven in preliminary proceedings within forty days after the arrest.

In this case, it appears that every requirement of the law, whether treaty or statute, was substantially complied with.

The word "persons," etymologically considered, includes citizens as well as those who are not, and while it is the practice of a preponderant number of nations to refuse to deliver its own citizens under a treaty of extradition silent on the point specifically, held, in view of the diplomatic history of the United States, there is no principle of international law by which citizens are excepted from the operation of a treaty to surrender persons where no such exception is made in the treaty itself. The United States has always so construed its treaties.

The construction of a treaty by the political department of the government, while not conclusive upon a court called upon to construe such a treaty in a matter involving personal rights, is of great weight.

While a violation of the extradition treaties with Italy of 1882 and 1884 by that power might render the treaty denounceable by the United States, it does not render it void and of no effect, and so held that the refusal of Italy to surrender its nationals has not had the effect of abrogating the treaty, but of merely placing the government in the position of having the right to denounce it.

A government can waive violations of a treaty by the other party, and it remains in force until formally abrogated.

Where, as in this case, the Executive has elected to waive any right to free itself from the obligation to deliver its own citizens under an existing extradition treaty, it is the duty of the court to recognize the obligation to surrender a citizen thereunder as one imposed by the treaty as the supreme law of the land.

185 F.8d 0 affirmed.

This is an appeal from a judgment dismissing a petition for a writ of habeas corpus and remanding the petitioner to custody under a warrant for his extradition as a fugitive from the justice of the Kingdom of Italy.

The proceedings for the extradition of the appellant were begun upon a complaint duly made by the Italian vice-consul, charging him with the commission of a murder in Italy. A warrant was duly issued by the Hon. John A. Blair, one of the judges of New Jersey chanrobles.com-red

Page 229 U. S. 449

qualified to sit as a committing magistrate in such a proceeding, under § 5270, Rev.Stat. At the hearing, evidence was produced which satisfied Judge Blair that the appellant was a fugitive from justice, and that he was the person whose return to Italy was desired, and that there was probable cause for holding him for trial upon the charge of murder committed there. He thereupon committed the appellant, to be held until surrendered under a warrant to be issued by the Secretary of State. A transcript of the evidence and of the findings was duly certified as required by § 5270, Revised Statutes, and a warrant in due form for his surrender was issued by the Secretary of State. Its execution has, up to this time been prevented by the habeas corpus proceedings in the court below and the pendency of this appeal.

The procedure in an extradition proceeding is that found in the treaty under which the extradition is demanded and the legislation by Congress in aid thereof. Thus, Article 1 of the treaty with Italy of 1868 (Vol. 1, Treaties, Conventions, etc., of the United States, 1910, p. 966), reads as follows:

"The government of the United States and the government of Italy mutually agree to deliver up persons who, having been convicted of or charged with the crimes specified in the following article, committed within the jurisdiction of one of the contracting parties, shall seek an asylum or be found within the territories of the other; Provided, that this shall only be done 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 or her apprehension and commitment for trial, if the crime had been there committed."

One of the crimes specified in the section following is murder.

By Article V, it is provided that:

"When, however, the fugitive shall have been merely

Page 229 U. S. 450

charged with crime, a duly authenticated copy of the warrant for his arrest in the country where the crime may have been committed, or of the depositions upon which such warrant may have been issued must accompany the requisition as aforesaid. The President of the United States, or the proper executive authority in Italy, may then issue a warrant for the apprehension of the fugitive in order that he may be brought before the proper judicial authority for examination. If it should then be decided that, according to law and the evidence, the extradition is due pursuant to the treaty, the fugitive may be given up according to the forms prescribed in such cases."

That article was amended by the additional treaty of 1884 (Vol. 1, Treaties and Conventions, p. 985) by a clause added in these words:

"Any competent judicial magistrate of either of the two countries shall be authorized, after the exhibition of a certificate signed by the Minister of Foreign Affairs [of Italy] or the Secretary of State [of the United States], attesting that a requisition has been made by the government of the other country to secure the preliminary arrest of a person condemned for or charged with having therein committed a crime for which, pursuant to this convention, extradition may be granted, and on complaint duly made under oath by a person cognizant of the fact, or by a diplomatic or consular officer of the demanding government, being duly authorized by the latter, and attesting that the aforesaid crime was thus perpetrated, to issue a warrant for the arrest of the person thus inculpated, to the end that he or she may be brought before the said magistrate, so that the evidence of his or her criminality may be heard and considered, and the person thus accused and imprisoned shall from time to time be remanded to prison until a formal demand for his or her extradition shall be made and supported by evidence, as above provided; if, however, the requisition, together with the documents

Page 229 U. S. 451

above provided for, shall not be made, as required, by the diplomatic representative of the demanding government, or, in his absence, by a consular officer thereof, within forty days from the date of the arrest of the accused, the prisoner shall be set at liberty. "

Page 229 U. S. 456