Factor v. Laubenheimer

• Citation: 290 U.S. 276,54 S.Ct. 191,78 L.Ed. 315
• Decision Date: 04 December 1933
• Docket Number: No. 2,2
• Parties: FACTOR v. LAUBENHEIMER, United States Marshal, et al. Re
• Court: United States Supreme Court

290 U.S. 276

54 S.Ct. 191

78 L.Ed. 315

FACTOR

v LAUBENHEIMER, United States Marshal, et al.

No. 2.

Reargued Oct. 9, 1933.

Decided Dec. 4, 1933.

[Syllabus from pages 276-278 intentionally omitted] Messrs. Newton D. Baker, of Cleveland, Ohio, and Rush C. Butler, of Chicago, Ill., for petitioner.

[Argument of Counsel from pages 278-283 intentionally omitted] Messrs. Wm. D. Mitchell, of New York City, and Franklin R. Overmyer, of Chicago, Ill., for respondent Godfrey Haggard, his Britannic Majesty's Consul General.

[Argument of Counsel from pages 283-285 intentionally omitted] Mr. Justice STONE delivered the opinion of the Court.

On complaint of the British Consul, a United States Commissioner for the Northern District of Illinois issued his warrant to hold petitioner in custody for extradition to England, under article 10 of the Webster-Ashburton Treaty of 1842 (1 Malloy's Treaties, pp. 650, 655, 8 Stat. 572, 576), as supplemented by the Blaine-Pauncefote Convention of 1889 (1 Malloy's Treaties, p. 740, 26 Stat. 1508) and certified the evidence in the proceeding before him to the Secretary of State under the provisions of section 651, title 18 USCA. The application for extradition was based on a charge that petitioner, at London, had 'received from Broadstreet Press Limited' certain sums of money, 'knowing the same to have been fraudulently obtained.' Upon application by the petitioner for writ of habeas corpus, and certiorari in its aid, the District Court for Northern Illinois ordered him released from custody on the ground that the act charged was not embraced within the applicable treaties because not an offense under the laws of Illinois, the state in which the was apprehended and held. On appeal the Court of Appeals for the Seventh Circuit reversed the judgment of the District Court, 61 F.(2d) 626, on the ground that the offense was a crime in Illinois, as had been declared in Kelly v. Griffin, 241 U.S. 6, 36 S.Ct. 487, 60 L.Ed. 861. This Court granted certiorari, 289 U.S. 713, 53 S.Ct. 523, 790, 77 L.Ed. 1467, on a petition which presented as ground for the reversal of the judgment below that under the Treaty of 1842 and Convention of 1889, extradition may not be had unless the offense charged is a crime under the law of the state where the fugitive is found, and that 'receiving money, knowing the same to have been fraudulently obtained,' the crime with which the petitioner was charged, is not an offense under the laws of Illinois.

In support of this contention, petitioner asserts that it is a general principle of international law that an offense for which extradition may be had must be a crime both in the demanding country and in the place where the fugitive is found, and that the applicable treaty provisions, interpreted in the light of that principle, exclude any right of either country to demand the extradition of a fugitive unless the offense with which he is charged is a crime in the particular place of asylum. See Wright v. Henkel, 190 U.S. 40, 61, 23 S.Ct. 781, 47 L.Ed. 948. But the principles of international law recognize no right to extradition apart from treaty. While a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he had fled, and it has been said that it is under a moral duty to do so (see 1 Moore, Extradition, § 14; Clarke, Extradition (4th Ed.) p. 14), the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty. See United States v. Rauscher, 119 U.S. 407, 411, 412, 7 S.Ct. 234, 30 L.Ed. 425; Holmes v. Jennison, 14 Pet. 540, 569, 582, 614, 10 L.Ed. 579, 618; United States v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932; Case of Jose Ferreira dos Santos, 2 Brock. 493, Fed. Cas. No. 4,016; Commonwealth ex rel. Short v. Deacon, 10 Serg. & R. (Pa.) 125; 1 Moore, Extradition, §§ 9—13. Cf. Matter of Washburn, 4 Johns. Ch. (N.Y.) 106, 107, 8 Am.Dec. 548; 1 Kent.Com. 37. To determine the nature and extent of the right we must look to the treaty which created it. The question presented here, therefore, is one of the construction of the provisions of the applicable treaties in accordance with the principles governing the interpretation of international agreement.

The extradition provisions of the treaty with Great Britain of 1842¹ are embodied in article 10, which pro- vides that each country 'shall * * * deliver up to justice all persons who, being charged with' any of seven named crimes 'committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other.' The crime charged here is not one of those specified in article 10 and is therefore not an offense with respect to which extradition may be demanded, unless made so by the provisions of the supplemental convention of 1889. That convention recites that it is desired by the high contracting parties that the provisions of article 10 of the earlier treaty should 'embrace certain crimes not therein specified,' and agrees by article 1² that the provisions of article 10 of the earlier treaty shall be made applicable to an added schedule of crimes specified in ten numbered classes of offenses and one unnumbered class. In the case of certain offenses, those enumerated in the classes numbered 4 and 10, and in the unnumbered class, article 10 applies only if they are, in the former case, 'made criminal' and, in the latter 'punishable,' 'by the laws of both countries.' No such limitation is expressed with respect to the crimes enumerated in the other eight classes, one of which, the third, includes the crime with which petitioner is charged. Thus, like article 10 of the earlier treaty, article 1 specifies by name those offenses upon accusation of which the fugitive is to be surrendered and it extends to them the obligation of the earlier treaty. But article 1, unlike article 10, singles out for exceptional treatment certain of the offenses named, which in terms are brought within the obligation of the treaty only if they are made criminal by the laws of both countries.

Notwithstanding this distinction, appearing on the face of the convention, petitioner insists that in no case does it require extradition of a fugitive who has sought asylum in the United States unless the criminal act with which he is charged abroad is similarly defined as a crime by the laws of the particular state, district or territory of the United States in which he is found. The only language in the two treaties said to support this contention is the proviso in article 10 of the Treaty of 1842, following the engagement to surrender fugitives charged with specified of fenses, which reads as follows: '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 apprehension and commitment for trial, if the crime or offense had there been committed. * * *'

It cannot be said that these words give any clear indication that a fugitive charged with acts constituting a crime named in the treaty is not to be subject to extradition unless those acts are also defined as criminal by the laws of the state in which he is apprehended. The proviso would appear more naturally to refer to the procedure to be followed in the country of the asylum in asserting and making effective the obligation of the treaty and particularly to the quantum of proof—the 'evidence'—which is to be required at the place of asylum to establish the fact that the fugitive has committed the treaty offense within the jurisdiction of the demanding country.

When the treaty was adopted there was no statutory provision of the United States regulating the procedure to be followed in securing extradition of the fugitive, and the necessary procedure was provided in the treaty itself. By the proviso, the observance of the laws of the place of refuge is exacted in apprehending and detaining the fugitive. See Benson v. McMshon, 127 U.S. 457, 8 S.Ct. 1240, 32 L.Ed. 234; In re Metzger, 17 Fed. Cas. p. 232, No. 9,511. It prescribes a method of procedure, in conformity with local law, by which compliance with the obligation of the treaty may be exacted at the place of refuge; and sets up a standard by which to measure the amount of the proof of the offense charged which the treaty requires as prerequisite to extradition. The standard thus adopted is that which under local law would determine the sufficiency of the evidence to justify the apprehension and commitment 'if the crime or offence had there been committed.'³ Were article 10 intended to have the added meaning insisted upon by petitioner, that there should be no extradition unless the act charged is one made criminal by the laws of the place of refuge, that meaning would naturally have been expressed in connection with the enumeration of the treaty offenses, rather than in the proviso which, in its whole scope, deals with procedure. That no such meaning can fairly be attributed to the proviso becomes evident when article 10 is read, as for present purposes it must be, with the supplementary provisions of the Convention of 1889.

The draftsmen of the latter document obviously treated the proviso as dealing with procedure alone, since they took care to provide in article 1 that fugitives should be subject to extradition for certain offenses, only if they were defined as criminal by the laws of both countries, but omitted any such provision with respect to all the others enumerated, including the crime of 'receiving,' with which petitioner is charged.⁴ This was an unnecessary precaution and one not consistently taken if the proviso already precluded extradition when the offense charged is not also criminal in the particular place of asylum. A less strained and entirely consistent construction is that urged...