Valentine v. United States Neidecker 8212, s. 6

CourtUnited States Supreme Court
Writing for the CourtHUGHES
Citation299 U.S. 5,81 L.Ed. 5,57 S.Ct. 100
PartiesVALENTINE, Police Com'r, et al. v. UNITED STATES ex rel. NEIDECKER (three cases). —8
Docket NumberNos. 6,s. 6
Decision Date09 November 1936

Mr. Porter R. Chandler, of New York City, for petitioners.

Mr. Frederic R. Coudert, Jr., of New York City, for respondents.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

Respondents sued out writs of habeas corpus to prevent their extradition to France under the Treaty of 1939 (37 Stat. 1526). They are native-born citizens of the United States and are charged with the commission of crimes in France which are among the extraditable offenses specified in the treaty. Having fled to the United States, they were arrested in New York City, on the request of the French authorities, under a preliminary warrant issued by a United States Commissioner and were held for extradition proceedings. By the writs of habeas corpus the jurisdiction of the Commissioner was challenged upon the ground that because the treaty excepted citizens of the United States, the President had no constitutional authority to surrender the respondents to the French Republic.

The controlling provisions of the treaty are as follows:

'Article I. The Government of the United States and the Government of France mutually agree to deliver up persons who, having been charged with or convicted of any of the crimes or offenses specified in the following article, committed within the jurisdiction of one of the contracting Parties, shall seek an asylum or 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 or her apprehension and commitment for trial if the crime or offense had been there committed. * * *

'Article V. Neither of the contracting Parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention.'

The Circuit Court of Appeals, reversing the orders of the District Judge, sustained the contention of the respondents and directed their discharge. 81 F.(2d) 32. This Court granted certiorari. 298 U.S. 647, 56 S.Ct. 680, 80 L.Ed. 1377.

First. The question is not one of policy, but of legal authority. The United States has favored the extradition of nationals of the asylum state and has sought—frequently without success—to negotiate treaties of extradition including them.1 Several of our treaties have made no exception of nationals.2 This is true of the treaties with Great Britain from the beginning, of the treaty with France of 1843, and of that with Italy of 1868. Charlton v. Kelly, 229 U.S. 447, 467, 33 S.Ct. 945, 57 L.Ed. 1274, 46 L.R.A. (N.S.) 397. Where treaties have provided for the extradition of persons without exception, the United States has always construed its obligation as embracing its citizens. Id., 229 U.S. 447, at page 468, 33 S.Ct. 945, 951, 57 L.Ed. 1274, 46 L.R.A.(N.S.) 397. In the opinion in Charlton v. Kelly we alluded to the fact that it had 'come to be the practice with a preponderant number of nations to refuse to deliver its citizens' and it was observed that this exception was of modern origin. The beginning of the exemption was traced to the practice between France and the Low Countries in the eighteenth century. And we found that owing 'to the existence in the municipal law of many nations of provisions prohibition the extradition of citizens, the United States has in several of its extradition treaties clauses exempting citizens from their obligation.' Accordingly we divided the treaties in force into two classes, 'those which expressly exempt citizens, and those which do not.' Id., 229 U.S. 447, at pages 466, 467, 33 S.Ct. 945, 952, 57 L.Ed. 1274, 46 L.R.A.(N.S.) 397.

The effect of the exception of citizens in the treaty with France of 1909—now under consideration—must be determined in the light of the principles which inhere in our constitutional system. The desirability—frequently asserted by the representatives of our government and demonstrated by their arguments and the discussions of juries—of providing for the extradition of nationals of the asylum state is not a substitute for constitutional authority. The surrender of its citizens by the government of the United States must find its sanction in our law.

It cannot be doubted that the power to provide for extradition is a national power; it pertains to the national government and not to the states. United States v. Rauscher, 119 U.S. 407, 412—414, 7 S.Ct. 234, 30 L.Ed. 425. But, albeit a national power, it is not confided to the Executive in the absence of treaty or legislative provision. At the very beginning, Mr. Jefferson, as Secretary of State, advised the President: 'The laws of the United States, like those of England, receive every fugitive, and no authority has been given to their Executives to deliver them up.'3 As stated by John Bassett Moore in his treaties on Extradition—summarizing the precedents—'the general opinion has been, and practice has been in accordance with it, that in the absence of a conventional or legislative provision, there is no authority vested in any department of the government to seize a fugitive criminal and surrender him to a foreign power.'4 Counsel for the petitioners do not challenge the soundness of this general opinion and practice. It rests upon the fundamental consideration that the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law. It necessarily follows that as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power.

Second. Whatever may be the power of the Congress to provide for extradition independent of treaty, that power has not been exercised save in relation to a foreign country or territory 'occupied by or under the control of the United States.' Act June 6, 1900, c. 793, 31 Stat. 656 (18 U.S.C. § 652, 18 U.S.C.A. § 652). See Neely v. Henkel, 180 U.S. 109, 122, 21 S.Ct. 302, 45 L.Ed. 448. Aside from that limited provision, the Act of Congress relating to extradition simply defines the procedure to carry out an existing extradition treaty or convention.5

The provision is that—'Whenever there is a treaty or convention for extradition between the Government of the United States and any foreign government'—a proceeding may be instituted to procure the surrender of a person charged with the commission of a crime specified in the treaty or convention. Upon the apprehension of the accused, he is entitled to a hearing and, upon evidence deemed to be sufficient to sustain the charge 'under the provisions of the proper treaty or convention,' the charge with the evidence is to be certified to the Secretary of State to the end that a warrant may issue upon the requisition of the proper authorities of such foreign government, 'for the surrender of such person, according to the stipulations of the treaty or convention.' R.S. § 5270 (18 U.S.C. § 651, 18 U.S.C.A. § 651).

It is manifest that the act does not attempt to confer power upon the Executive to surrender any person, much less a citizen of the United States, to a foreign government where an extradition treaty or convention does not provide for such surrender. The question then, is the narrow one whether the power to surrender the respondents in this instance is conferred by the treaty itself.

Third. It is a familiar rule that the obligations of treaties should be liberally construed so as to give effect to the apparent intention of the parties. Tucker v. Alexandroff, 183 U.S. 424, 437, 22 S.Ct. 195, 46 L.Ed. 264; Jordan v. Tashiro, 278 U.S. 123, 127, 49 S.Ct. 47, 48, 73 L.Ed. 214; Factor v. Laubenheimer, 290 U.S. 276, 293, 294, 54 S.Ct. 191, 195, 196, 78 L.Ed. 315. But, in this instance, there is no question for construction so far as the obligations of the treaty are concerned. The treaty is explicit in the denial of any obligation to surrender citizens of the asylum state—'Neither of the contracting Parties shall be bound to deliver up its own citizens.'

Does the treaty, while denying an obligation in such case, contain a grant of power to surrender a citizen of the United States in the discretion of the Executive? The Constitution (article 6, cl. 2) declares a treaty to be the law of the land. It is consequently, as Chief Justice Marshall said in Foster v. Neilson, 2 Pet. 253, 314, 7 L.Ed. 415, 'to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.' See, also, Head Money Cases, 112 U.S. 580, 598, 5 S.Ct. 247, 28 L.Ed. 798; United States v. Rauscher, supra, 119 U.S. 407, at page 418, 7 S.Ct. 234, 30 L.Ed. 425. Examining the treaty in that aspect, it is our duty to interpret it according to its terms. These must be fairly construed, but we cannot add to or detract from them.

Obviously the treaty contains no express grant of the power now invoked. Petitioners point to article 1, which states that the two governments 'mutually agree to deliver up persons' who are charged with any of the specified offenses. Petitioners urge that the word 'persons' includes citizens of the asylum state as well as all others. But article 1 is the agreement to deliver. It imposes the obligation of that agreement. Article 1 does not purport to grant any power to surrender save as the power is related to and derived from that obligation. The word 'persons' in article 1 describes those who fall within the agreement and with respect to whom the obligation is assumed. As article 5...

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