United States v. Mulligan

• Decision Date: 03 December 1934
• Docket Number: No. 193.,193.
• Citation: 74 F.2d 220
• Parties: UNITED STATES ex rel. DONNELLY v. MULLIGAN, U. S. Marshal.
• Court: U.S. Court of Appeals — Second Circuit

74 F.2d 220 (1934)

UNITED STATES ex rel. DONNELLY v. MULLIGAN, U. S. Marshal.

No. 193.

Circuit Court of Appeals, Second Circuit.

December 3, 1934.

Samuel Hershenstein, of New York City (T. Bernard Eisenstein, of New York City, of counsel), for appellant.

Edward H. Lockwood, of New York City (R. D. Murray, of New York City, of counsel), for British Consul-General, etc.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

This appeal reviews a dismissal of a writ of habeas corpus sued out by the appellant when he was arrested on a warrant for his extradition from this country to Canada. Appellant was indicted by the New York county grand jury on December 16, 1930, and was arrested in France on July 18, 1933. He was there tried for a crime against that government and imprisoned. After the expiration of his sentence, in October, 1933, on application of the United States, he was extradited, under this government's treaty with the republic of France, to the United States. He was surrendered to the United States agents in April, 1934, and brought to New York on May 3, 1934. On May 21, 1934, upon the recommendation of the district attorney of New York county, the relator was discharged on his own recognizance. This became necessary because the complaining witness against him, in the New York county charge of crime, died, and the district attorney of the county could not proceed with the trial of that indictment. Within 30 days the United States marshal, at the request of the Canadian government, arrested him for extradition to Canada on a charge pending there, which arose prior to his extradition from France to the United States.

Appellant seeks to sustain the writ for the reason that his imprisonment was invalid in that he was held in violation of the Extradition Treaty between the United States and the republic of France (Jan. 6, 1909, 37 Stat. 1526). On this appeal there is submitted a copy of a communication addressed by the Ministry of Foreign Affairs of the French Republic to the Canadian Legation at Paris. This communication was in reply to a request for extradition of the appellant to the Canadian government. In part it reads:

"In case the Canadian Government has the intention at some future date to request the extradition of Donnelly from the Government of the United States, the Government of the Republic would be glad to support such a request."

This communication was not before the District Court, but was submitted to us at the argument.

Article 7 of the Extradition Treaty between France and the United States (37 Stat. 1531) reads as follows:

"No person surrendered by either of the High contracting Parties to the other shall be triable or tried or be punished for any crime or offence committed prior to his extradition, other than the offence for which he was delivered up, nor shall such person be arrested or detained on civil process for a cause accrued before extradition, unless he has been at liberty for one month after having been tried, to leave the country, or, in case of conviction, for one month after having suffered his punishment or having been pardoned."

The history of extradition reveals it to be a creature of modern progress. Through the ancient world and down the Middle Ages, the practice of giving up a person by one government to another for an offense committed in the other was known, but the practice seems to have served a different purpose than the extradition of today. Extradition was a means of preserving political security. Moore's Treatise on Extradition and Interstate Rendition, pp. 8-13. To-day, however, the end sought is to attain social security. The rapid advancement and progress in intercommunications amongst nations, and the ease with which a criminal can flee from the country of his crime and seek an asylum in another country, the lessening of national barriers, all tend to minimize the fact that crime has always been considered a local matter. It is true that punishment of crime remains a local matter, but the offense is against the moral sense of nations as reflected in their criminal codes.

The early writers on extradition held that it was a matter of "right," and that the nation harboring a criminal had the "duty" to deliver him to a requesting nation. Grotius, de Jure Belli ac Pacis, lib. 2, c. 11; Vattel, lib. II, c. 6; Burlemaqui, Tome II, part IV, c. 3. Grotius and Vattel considered extradition of a criminal to be obligatory on the harboring nation because the interests of society demand that crimes be punished. In the nineteenth century, Chancellor Kent, in the Matter of Daniel Washburn, 4 Johns. Ch. 106, citing Vattel, Martens, Grotius, Heinecius, and other Publicists, held it to be the duty, under the law of nations, for one nation to give up to another a criminal fleeing from the justice of that other nation. This position seems to have still some adherents, for, as Prof. Puente points out in speaking of Latin American Practice (Principles of International Extradition in Latin America, 28 Mich. Law Review 1929-30 665):

"The courts in Latin America have regarded nations as bound to one another not only by contractual ties, but by the stronger bonds of moral solidarity. They consider the treaty as adding nothing new to the substance and character of the moral obligation, but as giving it only a greater and more definite — a contractual — measure of certainty and clothing it with a legal sanction. * * * The treaty is not creative, but merely declaratory, of international law."

The more modern writers, however, are united in considering extradition not as a duty, but as a matter of favor or of comity. Oppenheim (International Law 3d Ed. § 327) says that:

"States have always upheld their competence to grant asylum to foreign individuals as an inference from their territorial supremacy."

See, also, 6 Webster's Works, 303, 311; Sir Edward Creacy, First Platform of International Law, 202; Martens, Droit des Gens, Liv. III, c. 3, § 101; Foelix, Traité de droit international privé (1843) § 569; Wheaton's International Law (6th Ed.) vol. 1, 212; Piggot, Extradition, 8.

The law has followed the modern trend. Lord Russell in Re Arton (1896) 1 Q. B. 108, said:

"The law of extradition is without doubt founded upon the broad principle that it is to the interest of the civilized communities, that crimes acknowledged to be such should not go unpunished, and it is part of the comity of nations that one state should afford to another every assistance towards bringing persons guilty of such crimes to justice."

In United States v. Rauscher, 119 U. S. 407, 411, 7 S. Ct. 234, 236, 30 L. Ed. 425, the court said:

"It is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties. * * * Prior to these treaties, and apart from them, * * * there was no well-defined obligation on one country to deliver up such fugitives to another; and, though such delivery was often made, it was upon the principle of comity; * * * and it has never been recognized as among those obligations of one government towards another which rest upon established principles of international law."

Thus it is now clear that apart from a treaty a state has no duty to deliver up a person who has sought asylum within its boundaries. If the state wishes, it can afford him a refuge and protection from the state which he has fled. Of course, a state is under no duty to afford asylum to a fugitive; it may expel him from its territories if it choose, and without complaint from the...