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13 July 1866.
September 24th 1789, the defendant, if charged with an offence bailable by the laws of such state, shall not be released from custody until a final judgment upon such writ, or until a bond, with sufficient sureties in a reasonable sum, as ordered and approved by the state court, shall be given; and if the offence is not so bailable, until a final judgment upon the writ of error. Writs of error in criminal cases shall have pre- Precedence of cedence upon the docket of the supreme court of all cases to which the government of the United States is not a party, excepting only such cases as the court, at their discretion, may decide to be of public importance.
14 Stat. 386.
4. A final judgment or decree in any suit in the highest court of a state in which a 5 Feb. 1867 22. decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is Error to the state against their validity, or where is drawn in question the validity of a statute of or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such their validity, or where any title, (a) right, privilege or immunity is claimed under the constitution, or any treaty or statute of or commission held, or authority exercised under the United States, and the decision is against the title, right, privilege or immunity specially set up or claimed by either party under such constitution, treaty, statute, commission or authority, may be re-examined and reversed or affirmed in the supreme court of the United States, upon a writ of error, the citation being signed by the chief Citation. justice, or judge or chancellor of the court, rendering or passing the judgment or decree complained of, or by a justice of the supreme court of the United States,(b) in the same manner, and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States; and the proceeding upon the reversal shall also be the same, except that Judgment and the supreme court may, at their discretion, proceed to a final decision of the same, and execution. award execution or remand the same to an inferior court. (c) This act shall not apply Exceptions. to the case of any person who is or may be held in the custody of the military authorities of the United States, charged with any military offence, or with having aided or abetted rebellion against the government of the United States prior to the passage of this act.
14 Stat. 545.
and writs of error
5. Where any appeal or writ of error has been brought to the supreme court from 2 March 1867 8 1. any final judgment or decree of an inferior court of the United States for any judicial district in which, subsequently to the rendition of such judgment or decree, the regular Certain appeals sessions of such court have been suspended or interrupted by insurrection or rebellion, to be valid. such appeal or writ of error shall be valid and effectual, notwithstanding the time limited by law for bringing the same may have previously expired; and in cases where no appeal or writ of error has been brought from any such judgment or decree, such appeal or writ of error may be brought within one year from the passage of this act. The provisions of this act shall not apply to any case in which the right to bring an appeal or writ of error had expired before such suspension or interruption of the regular sessions of the court.
6. Where an appeal has been or may be taken from any final judgment, decree or order of the district court of the United States for any district, to a circuit court, the When the district cause appealed, by consent of parties, may be heard and disposed of by the circuit court judge may disheld by the district judge, at any time after the appeal, in case of the absence at such in the circuit term of the chief justice of the United States or the associate justice allotted to those court. circuit courts for such district.
pose of appeals
15 Stat. 44.
7. Final judgments in any circuit court of the United States, in any civil action 27 Mar. 1868 § 1. against a collector or other officer of the revenue, for any act done by him in the performance of his official duty, or for the recovery of and money exacted by or paid to him, (d) Error in revenue which shall have been paid into the treasury of the United States, may, at the instance cases. of either party, be re-examined and reversed or affirmed in the supreme court of the United States, upon writ of error, without regard to the sum or value in controversy in such action.
15 Stat. 226.
8. That the provisions of the act entitled "An act to allow the United States to pro- 27 July 1868 1. secute appeals and writs of error without giving security," approved February 21, 1863,(e) be and the same hereby are extended to writs of error, appeals or other process in law, admiralty or equity, issuing from or brought up to a circuit court of the United States.
(a) Where the decision of a state court is against the validity of an entry of land which has been allowed by the proper officers of the United States, the supreme court has jurisdiction to revise the judgment, whether the invalidity were decreed upon a question of fact or of law. Lytle r. Arkansas, 22 How. 193. The supreme court has no jurisdiction to review the judgment of a state court, where the question involved merely related to the proper boundary between two tracts of land, although both
United States may appeal to
circuit court, without security.
owners had valid grants from the United States. Moreland v. Page, 20 How. 522.
(b) A district judge has no authority to sign a citation. Palmer v. Donner, 7 Wall. 541.
(c) This applies to criminal as well as civil cases. Twitchell v. Commonwealth, 7 Wall. 321.
(d) See Mason v. Gamble, 21 How. 390.
1. State laws as to competency of witnesses to be rules of decision in the federal courts.
2. How depositions may be taken to be used in foreign courts. 3. Penalty for refusing to testify.
4. Fees of witnesses.
5. How commissions to foreign countries to be returned when the United States is a party.
6. Witnesses not to be excluded on the ground of color or of
6 July 1862 3 1. 12 Stat. 588.
1. The laws of the state in which the court shall be held, shall be the rules of decision, as to the competency of witnesses, in the courts of the United States, in trials at common law, in equity and admiralty.
2. The testimony of any witness residing within the United States, to be used in any suit for the recovery of money or property depending in any court in any foreign How depositions country with which the United States are at peace, and in which the government of be used in foreign such foreign country shall be a party or shall have an interest, may be obtained, to be
may be taken to
used in such suit. If a commission or letters rogatory to take such testimony shall
3. If any person shall refuse or neglect to appear at the time and place mentioned
3 March 1863 1. 12 Stat. 769.
Ibid. 2. Penalty for refusing to testify.
[See DISTRICT OF COLUMBIA, III., IV.]
7. In actions by or against executors, &c., neither party to testify, unless called by his opponent.
8. Testimony or answer of a party not to be used against him, in a criminal prosecution.
How commissions to foreign countries to be returned when
2 July 1864 23. 13 Stat. 351.
5. Whenever any commission or letters rogatory, issued to take the testimony of any witness in a foreign country, in any suit in which the United States are parties or have an interest, shall have been executed by the court, or the commissioner to whom the same shall have been directed, the same shall be returned by such court or commisthe United States sioner to the minister or consul of the United States nearest the place where said letters
is a party.
or commission shall have been executed, who, on receiving the same, shall endorse
3 March 1865 2 1. 13 Stat. 533. Witnesses in suits by execu. tors, &c.
25 Feb. 1868 21. 15 Stat. 37.
9. Copies of post-office accounts to be evidence.
10. And of statements mailed to delinquent postmasters.
11. Copies of consular records to be evidence.
4. Every witness who shall appear and testify, in manner aforesaid, shall be allowed and shall receive from the party, at whose instance he shall have been summoned, the same fees and mileage as are allowed to witnesses in suits depending in the district courts of the United States.
6. In the courts of the United States there shall be no exclusion of any witness on account of color; nor, in civil actions, because he is a party to or interested in the issue tried. (b)
7. In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. (c)
8. No answer or other pleading of any party, and no discovery, or evidence obtained by means of any judicial proceeding, from any party or witness in this or any foreign country, shall be given in evidence, or in any manner used against such party or wit
(a) The courts have no power to issue process for the attendance of witnesses before a commissioner appointed by a foreign tribunal. Spanish Consul's Petition, 1 Ben. 225. See tit. "District of Columbia," 46-9.
(b) By act 2 March 1867, 32, this is to be construed to embrace all suits, to which the United States shall be a party, in the court of claims, either plaintiff or defendant. 14 Stat. 457.
(c) The court ought not to make an order that the plaintiff be required to testify as a witness in his own behalf, where the effect of it would be to adopt a rule of decision in the federal courts of the district, different from that which the state legislature has prescribed for the government of the state courts in similar cases. Robinson v. Mandell, 3 Am. L. Rev. 377.
ness, or his property or estate, in any court of the United States, or in any proceeding 25 February 18€3. by or before any officer of the United States, in respect to any crime, or for the enforce- Testimony or ment of any penalty or forfeiture by reason of any act or omission of such party or answer of a party witness: Provided, That nothing in this act shall be construed to exempt any party against him, in a or witness from prosecution and punishment for perjury committed by him in discovering or testifying as aforesaid. (a)
not to be
criminal prosecu tion.
15 Stat. 197.
office accounts to
9. Copies of the quarterly returns of postmasters, and of any papers pertaining to 27 July 1868 18. the accounts in the office of the auditor of the treasury for the post office department, certified by him under his seal of office, shall be admitted as evidence in the courts of Copies of post the United States, in criminal prosecutions, in the same manner as the same are now be evidence. admitted in civil cases, as provided in section fifteen of an act entitled "An act to change the organization of the post office department, and to provide more effectually for the settlement of the accounts thereof," approved July 2d 1836.(b)
10. In all suits for the recovery of balances due from postmasters, a copy, duly cer- Ibid. 19. tified under the seal of the auditor of the treasury for the post office department, of the And of statestatement of any postmaster, special agent, or other person employed by the post-ments mailed to master-general or the said auditor for that purpose, that he has mailed a letter to such masters. delinquent postmaster at the post office where the indebtedness accrued, or at his last and usual place of abode, and that a sufficient time has elapsed in the ordinary course of mail to have reached its destination, and has not received payment of such balance within the time designated in his instructions, shall be received as sufficient evidence in the courts of the United States, or other courts, that a demand has been made on such delinquent postmaster: Provided, nevertheless, That when the account of a late postmaster has been once adjusted and settled, and a demand made for the balance appearing to be due, and afterwards allowances shall be made or credits entered on the account, it shall not be necessary to make a further demand for the new balance found to be due.
15 Stat. 266.
11. Copies of all official papers and documents belonging to and filed or remaining 8 Jan. 1869 3 1. in the office of any consul, vice-consul, or commercial agent of the United States, and of all official entries in the books or records of any such office, shall, when certified Copies of consular under the hand and official seal of the proper consul, vice-consul, or commercial agent, dence. be admissible in evidence in all the courts of the United States.
records to be evi
I. GENERAL PROVISIONS.
IV. TREATY WITH BADEN.
1. How papers to be authenticated.
12. Criminals to be delivered up. For what offences. Evidence.
2. Persons brought into the United States under extradition Jurisdiction. Expenses. Not to extend to political offenders. treaties to be protected from lawless violence.
13. Not to deliver up their own citizens.
14. Nor until after trial for offences in the country where found.
3. Agents to have the powers of marshals.
4. Penalty for obstructing agent, or rescuing prisoner.
V. TREATY WITH SWEDEN.
15. Criminals to be delivered up. Evidence.
16. For what offences.
(a) By the 2d section this is to apply to pending proceedings.
15 Stat. 37. See Ex parte Phillips, 1 Chicago Leg. News 449.
I. GENERAL PROVISIONS.
12 Stat. 84.
1. In all cases where any depositions, warrants or other papers, or copies thereof, 22 June 1860 1. shall be offered in evidence upon the hearing of an extradition case under the second section of the act entitled "An act for giving effect to certain treaty stipulations How papers to be between this and foreign governments for the apprehension and delivery up of certain offenders," approved August 12th 1848, (c) such depositions, warrants and other papers, or copies thereof, shall be admitted and received for the purposes mentioned in the said section, if they shall be properly and legally authenticated, so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped; and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country, shall be proof that
(b) 1 vol. 764, pl. 38.
(e) 1 vol. 270, pl. 2.
any paper or other document so offered is authenticated in the manner required by this act.(a)
2. Whenever any person who shall have been delivered by any foreign government to an agent or agents of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the president shall have power to take all necessary measures for the transportation and safe-keeping of accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offences specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offences, and for a reasonable time thereafter. And it shall be lawful for the president, or such person as he may empower for that purpose, to employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe-keeping and protection of the accused as aforesaid.
3. Any person duly appointed as agent to receive in behalf of the United States the Agents to have delivery by a foreign government of any person accused of crime committed within the
the powers of marshals.
jurisdiction of the United States, and to convey him to the place of his trial, shall be and hereby is vested with all the powers of a marshal of the United States, in the several districts through which it may be necessary for him to pass with such prisoner, so far as such power is requisite for his safe-keeping.
Ibid. 3. Penalty for obor rescuing pri
4. If any person or persons shall knowingly and wilfully obstruct, resist or oppose such agent in the execution of his duties, or shall rescue, or attempt to rescue, such structing agent, prisoner, whether in the custody of the agent aforesaid, or of any marshal, sheriff,
jailer or other officer or person to whom his custody may have lawfully been committed, every person so knowingly and wilfully offending in the premises shall, on conviction thereof before the district or circuit court of the United States for the district in which the offence was committed, be fined not exceeding one thousand dollars, and imprisoned not exceeding one year.
22 June 1860.
3 March 1869 ? 1. 15 Stat. 337.
tected from law
10 February 1858. 11 Stat. 741.
Extended to cases of forgery, counterfeiting and embezzlement.
23 Mar.1868 art.1. 15 Stat. 129. Fugitives to be delivered up. Evidence.
Ibid. art. 2.
For what offences.
II. TREATY WITH FRANCE.
5. It is agreed between the high contracting parties that the provisions of the treaties for the mutual extradition of criminals between the United States of America and France, of November 9th 1843, and February 24th 1845, and now in force between the two governments, shall extend not only to persons charged with the crimes therein mentioned, but also to persons charged with the following crimes, whether as principals, accessories or accomplices, namely: forging or knowingly passing or putting in, circulation counterfeit coin or bank notes or other paper current as money, with intent to defraud any person or persons; embezzlement by any person or persons hired or salaried, to the detriment of their employers, when these crimes are subject to infamous punishment.
III. TREATY WITH ITALY.
6. 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. 7. Persons shall be delivered up who shall have been convicted of, or be charged, according to the provisions of this convention, with any of the following crimes :
I. Murder, comprehending the crimes designated in the Italian penal code, by the terms of parricide, assassination, poisoning and infanticide:
II. The attempt to commit murder:
III. The crimes of rape, arson, piracy and mutiny on board a ship, whenever the crew, or part thereof, by fraud or violence against the commander, have taken possession of the vessel:
IV. The crime of burglary, defined to be the action of breaking and entering by night into the house of another with the intent to commit felony; and the crime of robbery, defined to be the action of feloniously and forcibly taking from the person of another, goods or money, by violence or putting him in fear:
V. The crime of forgery, by which is understood the utterance of forged papers, the counterfeiting of public, sovereign or government acts:
VI. The fabrication or circulation of counterfeit money, either coin or paper, of
(a) A certificate, under this act, should show upon its face that the officer who made it is the principal diplomatic or consular officer of the United States, resident in the country making the demand of extradition; and should declare that the documents
to which it is attached are legally authenticated, according to the laws of the country from which the fugitive escaped, so as to entitle them to be received as evidence for similar purposes by the tribunals of that country. 10 Opin. 501.
public bonds, bank notes and obligations, and in general of any title and instrument 23 March 1868. of credit whatsoever, the counterfeiting of seals, dies, stamps and marks of state and public administrations, and the utterance thereof:
VII. The embezzlement of public moneys, committed within the jurisdiction of either party, by public officers or depositors:
VIII. Embezzlement by any person or persons hired or salaried, to the detriment of their employers, when these crimes are subject to infamous punishment.
Ibid. art. 3.
8. The provisions of this treaty shall not apply to any crime or offence of a political character, and the person or persons delivered up for the crimes enumerated in the pre- Not to apply to ceding article shall in no case be tried for any ordinary crime, committed previously to political offendthat for which his or their surrender is asked.
9. If the person whose surrender may be claimed, pursuant to the stipulations of Ibid. art. 4. the present treaty, shall have been arrested for the commission of offences in the To be first tried country where he has sought an asylum, or shall have been convicted thereof, his ex- for offences com tradition may be deferred until he shall have been acquitted, or have served the term country of refuge. of imprisonment to which he may have been sentenced.
mitted in the
Ibid. art. 5.
10. Requisitions for the surrender of fugitives from justice shall be made by the respective diplomatic agents of the contracting parties, or in the event of the absence Proceedings on of these from the country, or its seat of government, they may be made by superior requisition. consular officers. If the person whose extradition may be asked for shall have been convicted of a crime, a copy of the sentence of the court in which he may have been convicted, authenticated under its seal, and an attestation of the official character of the judge by the proper executive authority, and of the latter by the minister or consul of the United States or of Italy, respectively, shall accompany the requisition. When, however, the fugitive shall have been merely 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.
11. The expenses of the arrest, detention and transportation of the persons claimed shall be paid by the government in whose name the requisition shall have been made. IV. TREATY WITH BADEN.
Ibid. art. 6.
(a) If the offence charged be punishable as a crime by the laws of the state in which the fugitive is found, at the time of its commission, he may be surrendered up, though such act were
12. It is agreed that the United States and Baden shall, upon mutual requisitions by them, or their ministers, officers or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to Criminals to be commit murder, or piracy, or arson, or robbery, or forgery, 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: Provided, That this shall only be For what of 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 apprehension and com- Evidence. mitment for trial, if the crime or offence had there been committed; (a) and the respective judges and other magistrates of the two governments shall have power, jurisdiction Jurisdiction. and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate, to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed Expenses. by the party who makes the requisition and receives the fugitive. Nothing in this article contained shall be construed to extend to crimes of a political character.
Not to extend to
13. Neither of the contracting parties shall be bound to deliver up its own citizens or subjects, under the stipulations of this convention.
14. Whenever any person accused of any of the crimes enumerated in this convention shall have committed a new crime in the territories of the state where he has sought an asylum, or shall be found, such person shall not be delivered up under the stipulations in the country
Ibid. art. 3. Nor until after trial for offences
where found. not a criminal offence at the date of the treaty. A prior discharge, by another judge, not upon the merits, is not a bar to the application. Müller's Case, 5 Phila. 289. s. c. 10 Opin. 501.
30 Jan. 1857 art.1.
11 Stat. 714.
Ibid. art. 2.