Sivut kuvina

A criminal sentence pronounced under the municipal § 14. Exlaw in one State can have no direct legal effect in an- traterritorial operaother. If it is a sentence of conviction, it cannot be tion of a executed without the limits of the State in which it is sentence.


delivered till he has been tried and punished or acquitted. There is, also, a provision that the stipulations of the convention shall be applied to any other State of the Germanic Confederation, which may thereafter declare its accession thereto. The crimes enumerated in the convention, and on account of which fugitives are to be delivered up on mutual requisitions, by their governments, or their ministers, officers, or authorities, respectively made, are murder, 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. Treaties of the United States, 1854, p. 98.

An act of Congress for giving effect to these treaty stipulations with foreign governments was approved on the 12th of August, 1848. It vests the judges of the Supreme Court of the United States, the district judges, and the commissioners appointed for the purpose by any of the United States courts, and also the judges of the several State courts, upon complaint made on oath or affirmation, with power to arrest persons charged with offences falling within the provisions of any of the treaty stipulations; and if, on hearing the testimony, it be deemed sufficient to sustain the charge under the provisions of the treaty, it shall be the duty of the judge or commissioner to certify the same to the Secretary of State with all the testimony taken before him, that a warrant may issue on the requisition of the proper authorities of the foreign government, and the judge or commissioner shall issue his warrant for the commitment of the person charged to a proper jail till the surrender is made. The Secretary of State is authorized, under his hand and seal of office, to order such offenders to be delivered to such persons as the

foreign government may authorize to receive them. U. S. Stat. at Large, vol. ix. p. 302. In a case under the British treaty the question came before the Supreme Court of the United States, whether a judge or commissioner could proceed without the previous authorization of his own government, and whether the agents of a foreign government have a right to call on our judicial officers to act, in advance of authority from the President. There was a diversity of views on this point among the members of the court, though a majority were, on other grounds, against entertaining an appeal from the decision of the commissioner, or granting an original writ of habeas corpus. By the judges, who sustained the action of the commissioner, independently of any initiatory proceeding on the part of the Executive, it was maintained:

"That an executive order of surrender to a foreign government is purely a national act, is not open to controversy; nor can it be doubted that the executive act must be performed through the Secretary of State by order of our Chief Magistrate, representing this nation. But it does not follow that Congress is excluded from vesting authority in judicial magistrates to arrest and commit, preparatory to a surrender.

pronounced, upon the person or property of the offender; and if he is convicted of an infamous crime, attended with civil dis

"The treaty with Great Britain is equally binding on us as the act of Congress, and it likewise confers jurisdiction and authority on the judges and magistrates of the respective governments, to issue warrants for the apprehension of fugitives, and for hearing and considering the evidence produced against them and also provides, that the committing magistrate shall certify as to the sufficiency of the evidence, to the executive authority, so that a warrant of surrender may issue. Congress was scrupulously careful, neither to limit or extend the treaty stipulations. According to the terms of the statute no doubt is entertained that the judicial magistrates of the United States, designated by the act, are required to issue warrants and cause arrests to be made, at the instance of the foreign government, on proof of criminality, as in ordinary cases when crimes are committed within our own jurisdiction, and are punishable by the laws of the United States."

On the other hand, it was said:

"No demand was made upon this government, by the government of Great Britain claiming the surrender. This government was passed by, and the requisition made by the consul, directly upon the magistrate, on the ground, as contended for, namely, that the consent or authority of the Executive is unnecessary to warrant the institution of the proceedings; and, in support of their propriety and regularity, the position is broadly taken, and without which the proceedings cannot be upheld, that according to the true interpretation of the treaty, any officer of Great Britain, however inferior, properly represents the sovereign of that country, who may choose to prosecute the alleged fugitive in making the requisition, and is entitled to the obedience of the judicial tribunals for that purpose, and if sufficient evidence is produced before them to arrest and commit, that a surrender may be made; and that in this respect, such officer is put on the footing of any of the prosecuting officers of this government, who are authorized to institute criminal proceedings for a violation of its laws; that the country is open to him, throughout the limits of the Union, and the judicial tribunals bound to obedience on his requisition and proofs, to make the arrest and commitment. This is the argument. Now, upon recurring to the terms of the treaty, it will be seen, that no such stipulations were entered into, or intended to be entered into, by either government, or any authority conferred to justify such a proceeding. The two nations agree that upon 'mutual requisition by them, or their officers or authorities respectively made,' — that is on a requisition made by the one government, or by its ministers or officers properly authorized upon the other- the government, upon whom the demand is thus made, shall deliver up to justice all persons charged with the crimes, as provided in the treaty, who shall have sought an asylum within her territories. In other words, on a demand, made by the authority of Great Britain upon this government, it shall deliver up the fugitive; and so in respect to a demand by the authority of this government upon her. This is the exact stipulation entered into when plainly interpreted. It is a compact between the two nations in respect to a matter of national concern

qualifications in his own country, such a sentence can have no legal effect in another independent State.1

But a valid sentence, whether of conviction or acquittal, pro

the punishment of criminal offenders against their laws-and where the guilty party could be tried and punished only within the jurisdiction whose laws have been violated. The duty or obligation entered into, is the duty or obligation of the respective nations, and each is bound to see that it is fulfilled, and each is responsible to the other in case of a violation. When the casus fœderis occurs, the requisition or demand must be made by the one nation upon the other. And under our system of government, a demand upon the nation must be made upon the President, who has charge of all its foreign relations, and with whom only foreign governments are authorized or even permitted to hold any communication of a national concern. He alone is authorized by the Constitution to negotiate with foreign governments, and enter into treaty obligations binding on the nation; and, in respect to all questions arising out of these obligations, or relating to our foreign relations, in which other governments are interested, application must be made to him. A requisition or demand, therefore, upon this government must, under any treaty stipulation, be made upon the Executive, and cannot be made through any other department, or in any other way." Howard's Reports, vol. xiv. p. 103. In Re Kane.

The general result of this case is, that under the British treaty the proceeding may either commence with a mandate from the President or by a warrant direct from the officer authorized to enforce it. Foreign governments may apply to ours, in the first instance. That course, under the decision of the Supreme Court, is the safest, though it may not be a necessary one; but in either event the subsequent proceedings are under the direction of the examining magistrate, and cannot be controlled by the President. See opinion of Attorney-General, (Mr. Cushing,) August 31, 1853. Washington Union. It had been previously decided that the Supreme Court had no jurisdiction to issue a habeas corpus for the purpose of reversing a decision under the treaty of 1843, with France. Howard's Rep. vol. v. p. 176. In the Matter of Metzger. In England the requisition must always be made through the Executive government, and in treaties of this description the preliminary action of the legislature is there necessary. At the time of the signature of the treaty of 1842, the British Minister stated that the rendition treaty could have no effect in the British dominions in Europe till Parliament acted on it. In Canada it could have an immediate effect. Lord Ashburton to Mr. Webster, August 9, 1842. An act of Parliament, 6 & 7 Vict. c. 76, passed July, 1843, empowers one of the principal Secretaries of State, or the Secretary for Ireland, to issue his warrant, signifying that a requisition had been made, in pursuance of this treaty, and requiring all justices, &c., to aid in apprehending the person charged with the crime, and the same functionaries are the officers to order the delivery of the party to the persons authorized to receive them.] 1 Martens, Précis, &c., liv. iii. ch. 3, § 86. de l'Europe, pt. ii. tit. 1, ch. 2, §§ 64, 65. § 565.

Klüber, Droit des Gens moderne Fælix, Droit International Privé,

nounced in one State, may have certain indirect and collateral effects in other States. If pronounced under the municipal law in the State where the supposed crime was committed, or to which the supposed offender owed allegiance, the sentence, either of conviction or acquittal, would, of course, be an effectual bar (exceptio rei judicata) to a prosecution in any other State. If pronounced in any other foreign State than that where the offence is alleged to have been committed, or to which the party owed allegiance, the sentence would be a nullity, and of no avail to protect him against a prosecution in any other State having jurisdiction of the offence.

15. Piracy under the law of


The judicial power of every State extends to the punishment of certain offences against the law of nations, among which is piracy.

Piracy is defined by the text writers to be the offence of depredating on the seas, without being authorized by any sovereign State, or with commissions from different sovereigns at war with each other.1

The officers and crew of an armed vessel, commissioned against one nation, and depredating upon another, are not liable to be treated as pirates in thus exceeding their authority. The State by whom the commission is granted, being responsible to other nations for what is done by its commissioned cruisers, has the exclusive jurisdiction to try and punish all offences committed under color of its authority.2

The offence of depredating under commissions from different sovereigns, at war with each other, is clearly piratical, since the authority conferred by one is repugnant to the other; but it has been doubted how far it may be lawful to cruise under commissions from different sovereigns allied against a common enemy. The better opinion, however, seems to be, that although it might not amount to the crime of piracy, still it would be irregular and illegal, because the two co-belligerents may have adopted dif

1 See authorities cited in Note to the case of United States v. Smith, Wheaton's Rep. vol. v. 157.

2 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 17. Rutherforth's Ins. vol. ii. p. 595.

ferent rules of conduct respecting neutrals, or may be separately bound by engagements unknown to the party.'

Pirates being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on the high seas by the armed vessels of any particular State, and brought within its territorial jurisdiction, for trial in its tribunals.2

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This proposition, however, must be confined to piracy Distincas defined by the law of nations, and cannot be extended to offences which are made piracy by municipal legislation. Piracy, under the law of nations, may be tried and punished in the courts of justice of any nation, der the muby whomsoever and wheresoever committed; but piracy tutes. created by municipal statute can only be tried by that State within whose territorial jurisdiction, and on board of whose vessels, the offence thus created was committed. There are certain acts which are considered piracy by the internal laws of a State, to which the law of nations does not attach the same signification. It is not by force of the international law that those who commit these acts are tried and punished, but in consequence of special laws which assimilate them to pirates, and which can only be applied by the State which has enacted them, and then with reference to its own subjects, and in places within its own jurisdiction. The crimes of murder and robbery, committed by foreigners on board of a foreign vessel, on the high seas, are not justiciable in the tribunals of another country than that to which the vessel belongs; but if committed on board of a vessel not at the time belonging, in fact as well as right, to any foreign power or its subjects, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no flag whatsoever, these crimes may be punished as piracy under

1 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 17, p. 130, Duponceau's Transl. Valin Commentaire sur l'Ord. de la Marine, tom. ii. p. 236. "The law," says Sir L. Jenkins, "distinguishes between a pirate who is a highwayman, and sets up for robbing, either having no commission at all or else hath two or three, and a lawful man-of-war that exceeds his commission." Works, vol. ii. p. 714.

2" Every man, by the usage of our European nations, is justiciable in the place where the crime is committed; so are pirates, being reputed out of the protection of all laws and privileges, and to be tried in what ports soever they may be taken." Sir L. Jenkins's Works, ib.

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