Commonwealth v. Hawes.

THE opinion states the facts.

Thos. E. Moss, attorney-general, and W. W. Cleary, Commonwealth's attorney, for appellant. 1. The claim of exemption in this case, from trial for crimes other than those named in the treaty of 1842, or in the warrant of extradition, is not sustained by any provision of the treaty, or by the practice of the governments of Great Britain or the United States under that treaty, nor by any adjudication of the British or Canadian courts, or of the courts of the United States or of any of the States.

In discussing the foregoing propositions the following authorities are referred to, to-wit: The case of Bouvier, 12 Cox's Crim. Law Cases, p. 304, the case of Richard B. Caldwell, 8 Blatchf. 131; the recent cases of Winslow, Brent and Gray; Lawrence's case, 13 Blatchf. 211; the Burleigh Case; Van Aerman's case in Upper Canada, 4 Canada, 288; the Praxton case, vol. 10 Lower Canada Jurist, 312, 352; Rosenbaum's case; the case of Charles Worms; the case of Heilbron; Adriance v. Lagrave, 59 N. Y. 110; The State v. Brewster, 7 Vt. 118.

2. In inter-State extraditions, under the United States Constitution (art. 4, § 2, sub-§ 2) there is no immunity from prosecutions for other offenses than those named in said section of the Constitution. Adriance v. Lagrave, 59 N. Y., and the case in 10 Wend.

John G. Carlisle and John W. Stevenson, for appellee.

LINDSAY, C. J. Smith N. Hawes stood indicted in the Kenton Criminal Court for uttering forged paper, for embezzlement, and also upon four separate and distinct charges of forgery. He was found to be a resident of the town of London, in the dominion of Canada, and in February, 1877, was demanded by the President of the United States, and surrendered by the Canadian authorities, to answer three of said charges of forgery. As to the fourth charge, the evidence of his criminality was not deemed sufficient, and that alleged offense was omitted from the warrant of extradition. The demand and surrender were made in virtue of and pursuant to the 10th article of the treaty concluded August 9, 1842, between the kingdom of Great Britain and the United States of America.

The attorney for the Commonwealth caused two of the indictments for forgery to be dismissed. Hawes was regularly tried

Commonwealth v. Hawes.

under each of the remaining two, and in each case a judgment of acquittal was rendered in his favor upon verdicts of not guilty.

After all this, however, the officers of Kenton county continued to hold him in custody; and finally, on motion of the attorney for the Commonwealth, one of the indictments for embezzlement was set down to be tried on the 6th day of July, 1877. Further action was postpened from time. from time to time until the 21st of August, 1877, when Hawes presented his affidavit, setting out all the facts attending his surrender, and the purposes for which it was made, and moved the court to continue all the indictments then pending against him, and to surrender him to the authorities of the United States, to be by them returned, or permitted to return, to his domicile and asylum in the dominion of Canada. This motion was subsequently modified to the extent that the court was asked to set aside the returns of the sheriff on the various bench-warrants under which he had been arrested, and to release him from custody. The court, in effect, sustained this modified motion, and ordered "that the cases of the Commonwealth of Kentucky v. Smith N. Hawes, for embezzlement and for uttering forged instruments with intent, etc., be continued, and be not again placed on the docket for trial, and that said Hawes be not held in custody until the further order of this court.

From said order the Commonwealth has prosecuted this appeal. It is not final in its nature, but under the provisions of sections 335 and 337 of the Criminal Code of Practice it may, nevertheless, be reviewed by this court.

It was the opinion of the learned judge (JACKSON) who presided · in the court below, that the 10th article of the treaty of 1842 impliedly prohibited the government of the United States and the Commonwealth of Kentucky from proceeding to try Hawes for any other offense than one of those for which he had been extradited, without first affording him an opportunity to return to Canada; and that he could not be lawfully held in custody to answer a charge for which he could not be put upon trial.

The correctness of this opinion depends on the true construction of the 10th article of the treaty, and also on the solution of the question as to how far the judicial tribunals of the Federal and State governments are required to take cognizance of, and in proper cases to give effect to treaty stipulations between our own and foreign governments.

Commonwealth v. Hawes.

Section 2, article 6, of the Federal Constitution, declares that "this Constitution, and the laws of the United States made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges of every State shall be bound thereby, any thing in the Constitution and laws of any State to the contrary notwithstanding." It will thus be seen that with us a public treaty is not merely a compact or bargain to be carried out by the executive and legislative departments of the general government, but a living law, operating upon and binding the judicial tribunals, State and Federal, and these tribunals are under the same obligations to notice and give it effect as they are to notice and enforce the Constitution and the laws of Congress made in pursuance thereof.

"A treaty is, in its nature, a compact between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially so far as its object is infra-territorial, but is carried into execution by the sovereign powers of the respective parties to the instrument. In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in the courts of justice as equivalent to an act of the legislature whenever it operates of itself, without the aid of any legislative provision." Foster v. Neilson, 2 Peters, 253, per Chief Justice MAR

SHALL.

When it is provided by treaty that certain acts shall not be done, or that certain limitations or restrictions shall not be disregarded or exceeded by the contracting parties, the compact does not need to be supplemented by legislative or executive action, to authorize the courts of justice to decline to override those limitations or to exceed the prescribed restrictions, for the palpable and all-sufficient reason that to do so would be not only to violate the public faith, but to transgress the "supreme law of the land."

A different rule seems to have been intimated in the case of Caldwell, 8 Blatchf. C. C. 131; but the real decision rendered in that, as in the subsequent case of Lawrence, 13 id. 295, decided by the same judge, was, that extradition proceedings had pursuant to the treaty under consideration do not, by their nature, secure to the person surrendered immunity from prosecution for an offense other than the one upon which the surrender is made;

Commonwealth v. Hawes.

and the intimation in Caldwell's case, that the judiciary may leave it to the executive department to interfere to preserve and protect the good faith of the government in a case like this, is at the most bnt a dictum.

The 10th article of the treaty of 1842 is 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 criminality 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."

It will be seen that the trial and punishment of the surrendered fugitive for crimes other than those mentioned in the treaty is not prohibited in terms, and that fact is regarded as of controlling importance by those who hold to the view that Hawes was not entitled to the immunity awarded him by the court below. But if the prohibition can be fairly implied from the language and general scope of the treaty, considered in connection with the purposes the contracting parties had in view, and the nature of the subject about which they were treating, it is entitled to like respect, and will be as sacredly observed as though it was expressed in clear and unambiguous terms.

Public treaties are to be fairly interpreted, and the intention of the contracting parties to be ascertained by the application of the

Commonwealth v. Hawes.

same rules of construction and the same course of reasoning which we apply to the interpretation of private contracts.

By the enumeration of seven well-defined crimes for which extradition may be had, the parties plainly excluded the idea that demand might be made as matter of right for the surrender of a fugitive charged with an offense not named in the enumeration, no matter how revolting or wicked it may be.

By providing the terms and conditions upon which a warrant for the arrest of the alleged fugitive may be issued, and confining the duty of making the surrender to cases in which the evidence of criminality is sufficient, according to the laws of the place where such fugitive is found, to justify his commitment for trial, the right of the demanding government to decide finally as to the propriety of the demand and as to the evidences of guilt, is as plainly excluded as if that right had been denied by express language.

It would scarcely be regarded an abuse ofthe rules of construction, from these manifest restrictions, unaided by extraneous considerations, to deduce the conclusion that it was not contemplated by the contracting parties that an extradited prisoner should under any circumstances be compelled to defend himself against a charge other than one upon which he is surrendered, much less against one for which his extradition could not be demanded. The consequences to which the opposite view may lead, though by no means conclusive against it, are nevertheless to receive due and proper weight.

It would present a remarkable state of case to have one government saying, in substance, to the other: "You cannot demand the surrender of a person charged with embezzlement; my judges or other magistrates have no right or authority upon such a demand, either to apprehend the person so accused or to inquire into the evidences of his criminality, and if they should assume to do so, and should find the evidence sufficient to sustain the charge, the proper executive authority could not lawfully issue the warrant for his surrender. But you may obviate this defect in the treaty by resting your demand upon the charge of forgery, and if you can make out a prima facie case against the fugitive, you may take him into custody, and then without a breach of faith, and without violating either the letter or spirit of our treaty, compel him to go to trial upon the indictment for the non-extraditable offense of embezzlement."