United States v. Rauscher

• Citation: 119 U.S. 407,7 S.Ct. 234,30 L.Ed. 425
• Parties: UNITED STATES v. RAUSCHER
• Decision Date: 06 December 1886
• Court: U.S. Supreme Court

119 U.S. 407

7 S.Ct. 234

30 L.Ed. 425

UNITED STATES v. RAUSCHER.

December 6, 1886.

(Syllabus by the Court.)

On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Southern District of New York.

Sol. Gen. Goode, for the United States.

A. J. Wittenhoefer, for defendant.

MILLER, J.

This case comes before us on a certificate of division of opinion between the judges holding the circuit court of the United States for the Southern district of New York, arising after verdict of guilty, and before judgment, on a motion in arrest of judgment. The prisoner, William Rauscher, was indicted by a grand jury for that, on the ninth day of October, 1884, on the high seas, out of the jurisdiction of any particular state of the United States, and within the admiralty and maritime jurisdiction thereof, he, the said William Rauscher, being then and there second mate of the ship J. F. Chapman, unlawfully made an assault upon Janssen, one of the crew of the vessel of which he was an officer, and unlawfully inflicted upon said Janssen cruel and unusual punishment. This indictment was found under section 5347 of the Revised Statutes of the United States.

The statement of the division of opinion between the judges is in the following language:

'This cause coming on to be heard at this term, before judgment upon the verdict, on a motion in arrest of judgment, and also on a motion for a new trial before the two judges above mentioned, at such hearing the following questions occurred:

'First. The prisoner having been extradited upon a charge of murder, on the high seas, of one Janssen, under section 5339, Rev. St. U. S., had the circuit court of the Southern district of New York jurisdiction to put him to trial upon an indictment, under section 5347, Rev. St. U. S., charging him with cruel and unusual punishment of the same man; he being one of the crew of an American vessel of which the defendant was an officer, and such punishment consisting of the identical acts proved in the extradition proceedings?

'Second. Did or not the prisoner, under the extradition treaty with Great Britain, having been surrendered upon a charge of murder, acquire a right to be exempt from prosecution upon the charge set forth in the indictment, without being first afforded an opportunity to return to Great Britain?

'Third. Was it error on the part of the trial judge to overrule a plea to the jurisdiction of the court to try the indictment under section 5347 of the United States Revised Statutes, charging the accused with cruel and unusual punishment of one Janssen, one of the crew of a vessel of which accused was an officer; it having been established upon said plea that the accused was extradited under the extradition treaty with Great Britain, upon the charge of murder of the same Janssen, under section 5339 of the United States Revised Statutes?

'Fourth. Was it error on the part of the tria judge to refuse to direct a verdict of acquittal, after it had been proven that the accused was extradited under the extradition treaty with Great Britian upon the charge of murder; it also appearing that in the proceedings preliminary to the warrant of extradition the same act was investigated, and the same witnesses examined, as at the trial?

'In respect to each of which questions the judges aforesaid were divided in opinion.

'Wherefore, at the same term, at the request of the United States attorney, they have caused the points above stated to be certified under the seal of this court, together with a copy of the indictment and an abstract of the record, to the supreme court of the United States for final decision according to law.

'WM. J. WALLACE.

'CHAS. L. BENEDICT.'

The treaty with Great Britian, under which the defendant was surrendered by that government to ours upon a charge of murder, is that of August 9, 1842, styled 'A treaty to settle and define the boundaries between the territories of the United States and the possessions of her Britannic majesty in North America; for the final suppression of the African slave trade; and for the giving up of criminals, fugitive from justice, in certain cases.' 8 U. S. St. at Large, 576.

With the exception of this caption, the tenth article of the treaty contains all that relates to the subject of extradition of criminals. That article is here copied, as follows: 'It is agreed that the United States and her Britannic majesty 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 commit murder, or piracy or arson or robbery or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum or shall 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 apprehension and commitment for trial if the crime or offense had there been committed; and the respective judges and other magistrates of the two governments shall have power, 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 criminalty 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.'

Not only has the general subject of the extradition of persons charged with crime in one country, who have fled to and sought refuge in another, been matter of much consideration of late years by the executive departments and statesmen of the governments of the civilized portion of the world, by various publicists and writers on international law, and by specialists on that subject, as well as by the courts and judicial tribunals of different countries, but the precise questions arising under this treaty, as presented by the certificate of the judges in this case, have recently been very much discussed in this country and in Great Britain. 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 made by one independent government with another. Prior to these treaties, and apart from them it may be stated, as the general result of the writers upon international law, that there was no well-defined obligation on one country to deliver up such fugitives to an ther; and, though such delivery was often made, it was upon the principle of comity, and within the discretion of the government whose action was invoked; and it has never been recognized as among those obligations of one government towards another which rest upon estalished principles of international law.

Whether, in the United States, in the absence of any treaty on the subject with a foreign nation from whose justice a fugitive may be found in one of the states, and in the absence of any act of congress upon the subject, a state can, through its own judiciary or executive, surrender him for trial to such foreign nation, is a question which has been under consideration by the courts of this country without any very conclusive result.

In the Case of Daniel Washburn, 4 Johns. Ch. 106, who was arrested on a charge of theft committed in Canada, and brought before Chancellor KENT upon a wit of habeas corpus, that distinguished jurist held that, irrespective of all treaties, it was the duty of a state to surrender fugitive criminals. The doctrine of this obligation was presented with great ability by that learned jurist; but, shortly afterwards, Chief Justice TILGHMAN, in the case of Com. v. Deacon, 10 Serg. & R. 125, in the supreme court of Pennsylvania, held the contrary opinion,—that the delivery up of a fugitive was an affair of the executive branch of the national government, to which the demand of the foreign power must be addressed; that judges could not legally deliver up, nor could they command the executive to do so; and that no magistrate in Pennsylvania had the right to cause a person to be arrested in order to afford the president of the United States an opportunity to deliver him up, because the president had already declared he would not do so.

In the case of Holmes v. Jennison, 14 Pet. 540, on a writ of error to the supreme court of Vermont, it appears that application had been made to the president for the extradition of Holmes, a naturalized citizen of the United States, who was charged with having committed murder in Lower Canada. There being then no extradition treaty between the two governments, the president declined to act through an alleged want of power. Holmes, having been arrested under authority from Gov Jennison, of Vermont, obtained a writ of habeas corpus from the supreme court of that state, and the sheriff returned that he was detained under an order of the governor, which commanded the sheriff to deliver him up to the authorities of Lower Canada, and the supreme court of the state held the return sufficient. On the writ of error from the supreme court of the United States two questions were presented: First, whether a writ of error would lie in such case from that court to the supreme court of the state; and, second, whether the judgment of the latter court was right. The eight judges who heard the case in this court were equally divided in opinion on the first of these questions, and therefore no authoritative decision of the...