Commonwealth v. Hawes
| Decision Date | 17 April 1878 |
| Citation | 76 Ky. 697 |
| Parties | Commonwealth v. Hawes. |
| Court | Kentucky Court of Appeals |
APPEAL FROM KENTON CRIMINAL COURT.
The Hon. W. L. Jackson, Judge of the Ninth Judicial District presided in this case, in the Kenton Criminal Court, under an appointment by the Governor, pursuant to section 10, article 4, chapter 12, General Statutes.
THOS E. MOSS, ATTORNEY-GENERAL, AND W. W. CLEARY COMMONWEALTH'S ATTORNEY, FOR APPELLANT.
1. The claim of exemption in this case, from trial for crimes other than those named in the treaty of 1842, or in the warrant of extradition, is not sustained by any provision of the treaty or by the practice of the governments of Great Britain or the United States under that treaty, nor by any adjudication of the British or Canadian Courts or of the courts of the United States or of any of the states.
In discussing the foregoing propositions the following authorities are referred to, to-wit: The case of Bouvier, 12 Cox's Crim. Law Cases, p. 304; the case of Richard B. Caldwell, 8 Blatchford, 131; the recent cases of Winslow, Brent, and Gray; Lawrence's case, 13 Blatchford, 196; the Burleigh case; Van Arnim's case in Upper Canada, 4 Canada Rep. 288; the Praxton case, vol. 10 Lower Canada Jurist, 312, 352; Rosenbaum's case; the case of Charles Worms; the case of Heilbron; Adriance v. Lagrave (59 N. Y.); Brewster v. The State, 7 Vt. Rep.
2. In inter-state extraditions, under the United States constitution there is no immunity from prosecutions for other offenses than those named in said section of the constitution. (Adriance v. Lagrave, 59 N. Y., and the case in 10 Wend.)
JOHN G. CARLISLE AND JOHN W. STEVENSON FOR APPELLEE.
1. The right of our government to demand the surrender and extradition of fugitives from its justice, who have sought refuge within the territory or jurisdiction of another, is purely conventional, the creation of treaty stipulations only.
2. By article 10 of the treaty of 1842 providing for the surrender and extradition of persons charged with the crimes of murder, assault to commit murder, piracy, arson, robbery, forgery, and the utterance of forged paper, it was not intended that a person charged with any one of the crimes specified might be demanded, examined, and surrendered on that charge and afterward put upon trial for a totally different offense not named in the treaty.
The maxim expressio unius est exclusio alterius, applies with peculiar force to the construction of said section, and shows an intention to exclude the right to try for any other offenses than those named in the treaty and warrant of extradition.
A treaty is part of the law of the land, and must be construed by the courts as any other law. (Foster & Elam v. Neilson, 2 Peters, 253.) The act of congress of August 12, 1848, section 5272 of the Revised Statutes of the United States, provides, that persons demanded under the treaty shall be delivered " to be tried for the crime of which such person shall be so accused," etc. This means that he shall be tried for that crime and no other.
The British extradition act of 1870 (33 and 34 Vict., ch. 52) simply reaffirms the construction previously given to the treaty of 1842 by both governments.
In discussing the foregoing, counsel quoted from and cited the speech of Lord Cairnes in the British House of Lords, August 3, 1876; Heffter on International Law; 2 Fœ lix on Private International Law, 322-359; and Kluit.
Smith N. Hawes stood indicted in the Kenton Criminal Court for uttering forged paper, for embezzlement, and also upon four separate and distinct charges of forgery. He was found to be a resident of the town of London, in the dominion of Canada, and in February, 1877, was demanded by the President of the United States, and surrendered by the Canadian authorities, to answer three of said charges of forgery. As to the fourth charge, the evidence of his criminality was not deemed sufficient, and that alleged offense was omitted from the warrant of extradition. The demand and surrender were made in virtue of and pursuant to the 10th article of the treaty concluded August 9, 1842, between the kingdom of Great Britain and the United States of America.
The attorney for the Commonwealth caused two of the indictments for forgery to be dismissed. Hawes was regularly tried under each of the remaining two, and in each case a judgment of acquittal was rendered in his favor upon verdicts of not guilty.
After all this, however, the officers of Kenton County continued to hold him in custody; and finally, on motion of the attorney for the Commonwealth, one of the indictments for embezzlement was set down to be tried on the 6th day of July, 1877. Further action was postponed from time to time until the 21st of August, 1877, when Hawes presented his affidavit, setting out all the facts attending his surrender, and the purposes for which it was made, and moved the court to continue all the indictments then pending against him, and to surrender him to the authorities of the United States, to be by them returned, or permitted to return, to his domicil and asylum in the dominion of Canada. This motion was subsequently modified to the extent that the court was asked to set aside the returns of the sheriff on the various bench-warrants under which he had been arrested, and to release him from custody. The court, in effect, sustained this modified motion, and ordered " That the cases of the Commonwealth of Kentucky v. Smith N. Hawes, for embezzlement and for uttering forged instruments with intent, etc., be continued, and be not again placed on the docket for trial, and that said Hawes be not held in custody until the further order of this court."
From said order the Commonwealth has prosecuted this appeal. It is not final in its nature, but under the provisions of sections 335 and 337 of the Criminal Code of Practice it may, nevertheless, be reviewed by this court.
It was the opinion of the learned judge (Jackson) who presided in the court below, that the 10th article of the treaty of 1842 impliedly prohibited the government of the United States and the Commonwealth of Kentucky from proceeding to try Hawes for any other offense than one of those for which he had been extradited, without first affording him an opportunity to return to Canada; and that he could not be lawfully held in custody to answer a charge for which he could not be put upon trial.
The correctness of this opinion depends on the true construction of the 10th article of the treaty, and also on the solution of the question as to how far the judicial tribunals of the federal and state governments are required to take cognizance of, and in proper cases to give effect to treaty stipulations between our own and foreign governments.
Section 2, article 6 of the federal constitution declares, that " This constitution, and the laws of the United States made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges of every state shall be bound thereby, any thing in the constitution and laws of any state to the contrary notwithstanding." It will thus be seen that with us a public treaty is not merely a compact or bargain to be carried out by the executive and legislative departments of the general government, but a living law, operating upon and binding the judicial tribunals, state and federal, and these tribunals are under the same obligations to notice and give it effect as they are to notice and enforce the constitution and the laws of congress made in pursuance thereof.
(Foster v. Neilson, 2 Peters, 253, per Chief Justice Marshall.)
When it is provided by treaty that certain acts shall not be done, or that certain limitations or restrictions shall not be disregarded or exceeded by the contracting parties, the compact does not need to be supplemented by legislative or executive action, to authorize the courts of justice to decline to override those limitations or to exceed the prescribed restrictions, for the palpable and all-sufficient reason, that to do so would be not only to violate the public faith, but to transgress the " supreme law of the land."
A different rule seems to have been intimated in the case of Caldwell (8 Blatchford C. C. Reports, 131); but the real decision rendered in that, as in the subsequent case...
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