In re Herres

• Decision Date: 16 December 1887
• Parties: In re HERRES. [1]
• Court: U.S. District Court — District of Minnesota

33 F. 165

In re HERRES. ^[1]

United States Circuit Court, D. Minnesota.

December 16, 1887

BREWER J.

I regret to say I am unable to agree with the views taken by the learned judge of the district court; and I will state briefly the views that I entertain, and the reasons therefor.

The first question is whether a preliminary mandate from the executive is essential to extradition proceedings. That question has never been decided by the supreme court. In the Case of Kaine, 14 How. 129, the question was before that court, and, of the seven judges, four expressed an opinion one way, and three the other. But that case went off on some other question, and so there has been a decision. Of course it would be presuming for me to attempt to review the different opinions given by the judges of that court. I simply state that I hold that a preliminary mandate is unnecessary, and for these reasons: First. The act itself makes no express provision for such a mandate. Second. No extradition can be consummated without action by the executive in the last instance. It would seem, therefore superfluous to compel the executive both to initiate and consummate the proceedings. Third. The general trend, as I take it, of the decisions in the circuit courts, is against the necessity for such a mandate. Fourth. Insisting upon it will often-times defeat the very purposes of the extradition in that the fugitive is warned or notified of the proceeding and may escape to some other place. So, while it would be presumption on my part to say that there are not cogent reasons on both sides of this question, I think it is the safer and better course to hold that no such preliminary mandate is essential.

The second question is this: The complaint filed before the commissioner does not disclose the fact that the proceedings are initiated by the Canadian government, or that the party filing the affidavit is acting other than in his private capacity as an individual. I doubt not that the proceedings must be initiated and carried on by the foreign government; but it seems to me that, if it appear in the examination before the commissioner, or elsewhere in the proceedings than in the complaint, that it is in reality a proceeding initiated and carried on by the foreign government, that is sufficient. It is a matter of substance, rather than of form, and if it anywhere appear that this is officially undertaken by the foreign government, that ought to be sufficient. It fully appears from the testimony of the complaining witness before the commissioner that he was acting under direct authority from the officials of the Canadian government.

The third question is this: It is insisted that the depositions are not properly certified and authenticated. The old act in that respect as to certification and authentication was changed in 1882, and the new act is found in the twenty-second volume of the Statutes, upon page 216. That provides that depositions shall be received, if they be...