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January 18, 1932

FETTERS, Marshal

The opinion of the court was delivered by: DICKINSON

A preliminary statement of what we understand to be the record status of this case may clear the decks for action and directly present the rulings to be made. The proceeding concerns one Harry Geen or Green.

The pre-lis situation, so far as concerns us, is that a scheme is averred to have been devised in London, England, to defraud unwitting investors in stocks, and was so far successful as that a large number of people were so defrauded out of sums of money which in the aggregate sound almost fabulous. The money of which these confiding persons were so defrauded was turned over by the guilty parties to the custody of Geen and others, who received it knowing it to have been fraudulently obtained. In the vernacular Geen was thus the "fence." Geen and some others came to this country. Geen came to Philadelphia, and Pennsylvania thus became the state of asylum. In the viewpoint of those defrauded, Geen is thus a "fugitive from justice"; from his own viewpoint he is a visitor lawfully here with the right to the protection of our laws. Those who are averred to have fraudulently obtained the moneys received by Geen and who remained in England were there prosecuted, indicted, and convicted, but the conviction has been since reversed and set aside by the judgment of the Appellate Court on appeal regularly taken. Out of this situation arose the present proceedings. Pending the prosecution in England, the British Consul here applied for a warrant for the arrest of Geen under the provision of the treaties between the United States and Great Britain and the acts of Congress passed to enforce and carry out the provisions of treaties for the extradition of persons who are in this country charged with violations of the laws of another. The application was made to a judge of this court sitting in the capacity of a committing magistrate. The warrant issued and Geen was arrested.

 We do not have present access to the record, but as we understand Geen being thus in the custody of the marshal has taken two steps towards regaining his liberty:

 1. He has entered a motion addressed to the court sitting as a committing magistrate for his discharge on the ground that no just cause for his detention has been shown.

 2. He has applied to this court for the allowance of a writ of habeas corpus on the ground that he is unlawfully deprived of his liberty.

 The same question underlies each of these moves, making each dependent upon the other. If he is discharged after a hearing upon the warrant of arrest, he will have no need for a writ of habeas corpus because he will then be at liberty. If he is what we will call held for extradition, the petition for a writ of habeas corpus must be denied because he is in lawful custody. The real question in consequence is: Should Geen be held for extradition? For convenience we will call him the relator.

 It is helpful to have in mind as a starting point that the relator is charged with no offense against our laws, state or national. Secondly, he is here under and with the full right to receive the prtection of our laws, nor can he be taken from under this protection otherwise than in accordance with law. It is thus clear that we cannot adjudge him to be guilty of any offense, nor can we find that there is evidence of his guilt or "probable cause" in the sense of legal justification to hold him for trial for any offense. The cause in this aspect of it is coram non judice. Any state or sovereignty may, however, limit what is called the right of asylum by providing by law that one in the state, although under the protection of its laws, and guilty of no offense against them, may nevertheless be taken into custody to be removed into the jurisdiction of another state or sovereign to be there tried for an offense against its laws. Many practices have made us familiar with this. In Pennsylvania, for instance, a warrant may be issued by a magistrate of one county. It cannot of itself be served in another, but under the provisions of the law it can be there served if a magistrate of that county shall indorse upon it authority to so serve it. This is familiar to all Pennsylvania lawyers as "backing warrants."

 We have another instance of the practice in the provisions of the Constitution of the United States for the return of fugitives from the justice of one state who are found in another. Const. art. 4, § 2, cl. 2. Another instance of the practice is that in the proceeding now before us under which, through what are called extradition proceedings, one who has sought asylum in one country may be turned over to the authorities of another to be tried for offenses there committed.

 We have indulged in this long preamble to bring out the point that the question before us is primarily not a question of law but of diplomacy.

 The United States under its treaty-making powers may make such agreements with a foreign government as may be satisfactory to both on the subject of the surrender by one to the other of those charged with crime. Such treaties, however, are not ordinarily self-enforcing, but each party to a treaty is bound, in the exercise of good faith, to provide by law for the machinery of enforcement.

 This brings us to the treaties between the United States and Great Britain on the subject and the acts of Congress to carry them into effect. A system might have been provided which did not call for the intervention of the courts. If so, the courts would have been concerned only when one who had been taken into custody and was thus deprived of his liberty appealed to the courts for a writ of habeas corpus or otherwise. The question would then be whether he was lawfully deprived of his liberty. The treaty and the law making power might, however, authorize and call upon the courts to use their process to arrest the person sought to be extradited and to certify whether, in the opinion of the court, such person was the proper subject of extradition proceedings. The latter is what has been done, and the sole function of the court is to issue arrest process and with the party before it determine and certify whether he is the proper subject of extradition. It is in this sense only that the question before us is a judicial one. What it thereafter done rests with the Executive acting through the Department of State. It is, because of this, that we have said that extradition is a question of diplomacy rather than of law. The treaty which thus underlies this proceeding is that of 1842 (8 Stat. 572), as supplemented in 1889 (26 Stat. 1508). It would be expected that there might be acts committed which had been denounced as crimes under the laws of one country which nevertheless would not be thought to be extraditable offenses by the other country. Because of this any extradition treaty would define the offenses which were within the treaty. This treaty defines as extraditable the offense of receiving moneys knowing them to have been fraudulently obtained. This is the very offense with which this relator is charged. It may be here interpolated that the offense known as conspiracy is not made an extraditable offense.

 We may likewise pause here to discuss a point made in opposition to this extradition. All are agreed that the offense charged must have been made extraditable by the treaty, but it is confidently asserted on behalf of the relator that in addition to this the offense must be one not only under the laws of the demanding country and be made extraditable by the treaty, but must also have been made a crime by the laws both of the demanding country and of the asylum country. Beyond doubt there is support of this thought to be found in judicial expressions. Indeed, in many of the opinions accompanying rulings made this seems to have been taken for granted, and in some perhaps the treaty so provided as that of 1889 does in some instances provide. There is no clear-cut statement upon what the proposition is based. Whether there be such a provision in some of the earlier treaties we have not taken the time to inquire, but it is argued that it cannot be found (as to this offense) in the Treaty of 1889. That treaty makes the offense here charged extraditable without qualification. It is true that some other one or more offenses are so qualified. This instead of extending the provision to the offenses in connection with which it is not mentioned, it is further argued, would negative the thought of any such intention. It is likewise true that the treaty requires in all cases that the "evidence of criminality" be such as under the laws of the asylum state would justify the holding of the accused for trial for offenses there charged. This, however, it is asserted goes wholly to the question of the evidence of guilt of the offense charged and its weight, and regulates the burden of proof upon the question of "probable cause." It is not a definition of an extraditable offense. As the question presented is in no sense one of guilt but merely aside from that of identity, (1) whether the offense charged is extraditable, and (2) whether the evidence justifies the preliminary finding that the accused should be put upon trial, it is urged that the other question of whether the act charged to have been committed has been made an offense under the laws of the country of asylum, does not arise. Of course, if it be made by treaty an element of the extraditable offense, or if the act of Congress passed to carry the treaty into effect required it as a condition of extradition, it must be present, but otherwise it need not be. The Treaty of 1889, it is said, does not call for it. The treaty, however, does not of itself effectuate all its purposes. The law of the asylum country must provide the machinery for carrying it into effect, and if by inadvertence or otherwise before a warrant of arrest could issue something more than the treaty required was called for, the warrant could not lawfully issue without a compliance with the statute. If the purposes of the treaty were thus defeated, the injured country might denounce the treaty unless the law was changed, but the magistrate or court empowered by that law to issue a warrant must follow its provisions. It is said that the act of Congress (R.S. § 5270 [ 18 USCA § 651]) under which this warrant issued expressly limits our inquiries to the two mentioned. It is silent on the subject of the one now under discussion.

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