whether he exceeded his jurisdiction; and whether he had any legal or competent evidence of facts before him, on which to exercise a judgment as to the criminality of the accused. But, such Court is not to inquire whether the legal evidence of facts before the Commissioner was sufficient or insufficient to warrant his conclusion. Nor, if there was legal and competent evidence of facts before the Commissioner, for him to consider in making up his decision as to the criminality of the accused, is the Court, on habeas corpus, to hold the proceedings illegal and to discharge the prisoner because some other evidence was introduced which was not legal or competent, but was held to be so by the Commissioner and was considered by him on the question of fact, or because the Court, on a consideration of all the evidence which the Commissioner considered, would have come to a different conclusion, or because the Court, on an exclusion of such of the evidence as it may think was not legal or competent, would come, on the rest of the evidence, to a different conclusion of fact from that at which the Commissioner arrived. In other words, the proper inquiry is to be limited to ascertaining whether the Commissioner had jurisdiction, and did not exceed his jurisdiction, and had before him legal and competent evidence of facts whereon to pass judgment as to the fact of criminality, and did not arbitrarily commit the accused for surrender, without any legal evidence.1

As the documentary evidence of the demanding government when authenticated according to the requirement of the Act of Congress is thereby made admissible, no question can be raised as to its competence.2 Thus the objection that certain testimony contained in the depositions is not under oath and hence not admissible would be without force.3 As to the oral testimony of the demanding government, the question respecting competence cannot easily arise for the reason that the rules which have been developed for the purpose of preventing certain classes of testimony from being presented to a jury, have no application to a situation where there is no jury, and the judicial proceedings are in the nature of a preliminary examination rather than a trial.

The committing magistrate must have before him some legal as well as competent evidence on which to pass judgment - evi

1 12 Blatchf. 501, 519.

2 "Where the certificate is sufficient it is conclusive as to the admissibility of the evidence." Moore, Extradition, I, § 330. See, also, Elias v. Ramirez, 215 U. S. 398, 409; Bingham v. Bradley, 241 U. S. 511, 517; Ex parte Schorer, 197 Fed. 67, 72; earlier cases cited in Moore, Extradition, I, 501, note 3; In re Lincoln, 228 Fed. 70.

3 Elias v. Ramirez, 215 U. S. 398, 409.

HABEAS CORPUS PROCEEDINGS

[§ 338 dence both of the "criminality" of the accused, and of the fact that the offense charged against him is rendered extraditable by the treaty invoked. It thus becomes important in habeas corpus proceedings to observe whether the objection to the decision of the committing magistrate in holding the accused to await extradition, rests upon the contention that there was an entire absence of legal evidence, or upon the contention that the legal evidence received was in fact insufficient.

Every treaty of extradition establishes certain tests of the legality of the evidence to be furnished by the demanding government. These refer to the nature of the offense charged, and to the sufficiency of evidence to be submitted. For example, a treaty rendering extraditable the embezzlement of "public monies" by "public officers", would appear to assert, as one test of the legality of evidence essential to commitment and surrender, evidence of the fact that the funds embezzled were "public" and that the accused was a "public" official. In the absence of proof of those facts the magistrate would have before him no legal evidence on which to act.1

§ 338. The Same.

It has been seen that the treaties almost always make the duty to surrender the accused dependent upon the production of evidence of criminality sufficient to justify his commitment for trial according to the law of the place where he is found. If, therefore, the testimony of the demanding government should be exclusively of a kind which, according to the law of the place where accused was found, was rendered insufficient to commit a person for trial, there would be no legal evidence before the magistrate. If he should commit the accused on such testimony, the objection on habeas corpus proceedings would not be directed primarily against the sufficiency of evidence but rather against the nature of what was rendered illegal by the treaty.2

1 Art. II of convention with Italy of March 23, 1868, Malloy's Treaties, I, 967; also Ex parte Ronchi, 164 Fed. 288. See, also, in this connection, Ex parte La Page, 216 Fed. 256.

2 An exact application of this principle is found in Ex parte Fudera, 162 Fed. 591, where the only testimony of the demanding government relative to a murder charged against the accused was certain hearsay testimony contained in the depositions. The court issuing the writ of habeas corpus held that by the law of the place where the accused was found, such testimony would not suffice to commit a person to await trial, that the treaty requirement was, therefore, not complied with, and that hence the accused was entitled to be discharged. It is believed, however, that while the learned judge may have correctly stated the law of the place where the accused was found

Not until there is legal evidence before the committing magistrate can a question as to its sufficiency arise. If the order of commitment should be based upon an amount of legal evidence so slight that the decision would appear incomprehensible in the matter of reasoning, or necessarily attributable to passion or partiality, it is believed that the court issuing the writ of habeas corpus would be justified in discharging the prisoner. In such case the committing magistrate would not have had before him sufficient evidence on which he could justify any judgment other than one favorable to the accused. Hence, the case would resemble one where no legal evidence whatever was offered. Thus the principle frequently announced by the Supreme Court of the United States that the sufficiency of the legal and competent evidence before the committing magistrate cannot be reviewed on habeas corpus proceedings is believed to signify that the impropriety of review depends upon the existence of any evidence such as would warrant the commitment of the prisoner without subjecting the magistrate to the charge of partiality or mental weakness.1

in the case before him, such is not universally the law in the United States. Sometimes the local law does permit the commitment of a person for trial on hearsay testimony. See, for example, the case of McKinney v. United States, 199 Fed. 25, where there was nothing but hearsay testimony before the grand jury to support the charge of the indictment, and where a motion to quash the indictment was overruled, and the judgment of conviction affirmed by the United States Circuit Court of Appeals for the Eighth Circuit. Where such is the law, hearsay testimony in the depositions becomes legal testimony so far as the treaty is concerned. Compare In re Ezeta, 62 Fed. 972, 988, respecting the case against General Bolanos.

It is not believed that the Supreme Court of the United States has announced a different rule. In the case of Benson v. McMahon, 127 U. S. 457, 463, the Court declared that the inquiry was whether there was legal evidence before the commissioner "to justify him in exercising his power to commit the person accused to custody." After reviewing the testimony the court expressed the opinion that the commissioner "was justified." The decision was quoted with approval by Mr. Justice Blatchford in the case of In re Luis Oteiza y Cortes, 136 U. S. 330. In announcing the opinion of a unanimous court he stated that the decision of the commissioner could not be reviewed when he had before him "competent legal evidence on which to exercise his judgment." Id., 334. The same language was employed by Chief Justice Fuller in the opinion of the Court in Ornelas v. Ruiz, 161 U. S. 502, 508, and the foregoing decisions were cited as authority. In Bryant v. United States, 167 U. S. 104, the opinion was delivered by Mr. Justice Brown, who declared that "the question before us is . . . whether there was any legal evidence at all upon which the commissioner could decide that there was evidence sufficient to justify his commitment for extradition." To explain his meaning the learned Justice quoted the language of Chief Justice Fuller in Ornelas v. Ruiz. In the case of Terlinden v. Ames, 184 U. S. 270, 278, Chief Justice Fuller cited Ornelas v. Ruiz, and Bryant v. United States, and quoted as declaratory of the principle involved, the statement of the court in the case of In re Stupp, 12 Blatchf. 501, 519, which is quoted in the text above. In Elias v. Ramirez, 215 U. S. 398, 409, the Court was of opinion that the evidence was such as to "justify" the order of the commissioner, and for that reason reversed the decision of the Supreme Court of Arizona which

AN EXECUTIVE FUNCTION

[§ 339

(5) Surrender

(a)

§ 339. An Executive Function.

According to Section 5272 of the Revised Statutes, the Secretary of State is empowered to order, under his hand and seal of office, the person committed to be delivered to the duly authorized agent of the demanding government; and such agent is authorized to hold the prisoner in custody and to take him to the territory of the demanding government pursuant to the treaty.1

An Act of Congress of February 6, 1905, extending Sections 5270-5278 of the Revised Statutes so far as applicable, to the Philippine Islands, provided that when a person is committed therein for extradition, the order for delivery "shall be issued by the Governor of the Philippine Islands under his hand and seal of office and not by the Secretary of State." 2

had declared that there was no competent legal evidence of the crime charged upon which the commissioner might have exercised his judgment. Likewise in McNamara v. Henkel, 226 U. S. 520, 524, the Supreme Court expressed the opinion that there was evidence before the Commissioner upon which he "was entitled to exercise his judgment." In Bingham v. Bradley, 241 U. S. 511, 516-517, Mr. Justice Pitney declared in the opinion of the Court, that the decision of the Commissioner, deeming the evidence sufficient to sustain the charge against the accused, could not be reversed on habeas corpus "if he acted on competent and legal evidence." McNamara v. Henkel, 226 U. S. 520, was cited. He added that the evidence was "abundantly sufficient" to furnish reasonable ground for belief that the accused had committed an extraditable offense within the terms of the treaty.

1 See, also, statement in Moore, Extradition, I, § 359; Moore, Dig., IV, 397. Concerning the nature of the power to surrender, see Terlinden v. Ames, 184 U. S. 270, 289, where it was declared by Chief Justice Fuller: "The warrant of surrender is issued by the Secretary of State as the representative of the President in Foreign Affairs."

§ 5272 R. S. makes provision also for the recapture of the accused in case of his escape. See case of G. D. Reed where, following an exceptional procedure, the accused was, at the request of the Mexican Government, delivered to its agents, not at the place of detention in New Jersey, but in Texas, to which State he was transferred by American authorities. For. Rel. 1908, 597-601.

233 Stat. 698, U. S. Comp. Stat. 1918, § 10124.

According to the terms of a convention between the United States and the Netherlands of January 18, 1904, the provisions of the existing extradition treaty of June 2, 1887, were made applicable to the island possessions of the United States and to the colonies of the Netherlands. Art. III declared that: "Application for the surrender of a criminal may be made directly to the governor or chief magistrate of the island possession or colony in which the criminal has sought refuge, by the governor or chief magistrate of an island possession or colony of the other contracting party, Provided, That both island possessions or colonies are situated in Asia or both in America (including the West India Islands); in making such application, the intervention of a consular officer in such a possession or colony may be used, although no

A naval commander cannot execute an extradition treaty under the laws of the United States or in conformity with its express stipulations.1

(b)

§ 340. Executive Discretion. Obstacles to Surrender. The Secretary of State exercises a revisory power in cases where accused has been duly committed by a magistrate, and evenwhere an order of commitment has been sustained on habeas corpus.2 The sufficiency of the evidence is a question for the courts, without whose certificate of criminality the President cannot order the extradition of the accused.3 It is believed, therefore, that the Executive has no power to surrender a fugitive upon any charge other than one which has been heard before a magistrate and certified by him to be sustained by the evidence offered. On the other hand, the Secretary of State is unwilling to consider evidence which was not produced before the committing magistrate, in behalf either of the accused or of the demanding govern

ment.5

modification shall thereby be made in his capacity as a commercial agent. The aforesaid governors or chief magistrates shall have authority either to grant the extradition or to refer the matter for decision to the mother country. In all other cases, application for extradition shall be made through the diplomatic channel." Malloy's Treaties, II, 1272.

Attention is called to Art. IX of the extradition treaty with Mexico of February 22, 1899, which permits, under certain circumstances, requisitions to be made by specified authorities of "frontier States or Territories." This Article is believed to contemplate the surrender also by such authorities. Malloy's Treaties, I, 1188. Respecting the operation of the treaty, see Mr. Adee, Acting Secy. of State to Mr. Foster, October 24, 1900, 248 MS. Dom. Let. 453, Moore, Dig., IV, 244. Also Art. XIII treaty with France, Jan. 6, 1909, Charles' Treaties, 37.

1 Such was the language of Mr. Blaine, Secy. of State, in a communication to Mr. Denby, Minister to China, No. 680, Dec. 7, 1891, For. Rel. 1892, 74 75, Moore, Dig., IV, 283, where it was also said: "No order of his, for instance, would legally take the place of the warrant of surrender, which can only be issued by the Secretary of State after due fulfilment of the precedent judicial requirements. The same course of reasoning applies to the powers of the United States minister to grant extradition in such a case. He has no such power, by statute or treaty. Neither has a consul."

2 Statement in Moore, Dig., IV, 399, citing Moore, Extradition, I 551-556, In re Stupo, 11 Blatchf. 124; 14 Op. 281, In re Stupp, 12 Blatchf. 501. See, also, Mr. Bayard, Secy. of State, to Mr. West, April 15, 1886, MS. Notes to Great Britain, XX, 233, Moore, Dig., IV, 403.

3 Mr. Cushing, Atty.-Gen., 6 Ops. Attys.-Gen., 217, cited in Moore, Dig., IV, 400. The language of Mr. Moore is employed in the text.

The language in the text is taken from a statement in Moore, Dig., IV, 400, based upon a communication of Mr. Blaine, Secy. of State, to Sir J. Pauncefote, British Minister, May 17, 1892, MS. Notes to Great Britain, XXI, 664.

Mr. Hay, Secy. of State, to Messrs. Kingsford and Son, Feb. 25, 1899, 235 MS. Dom. Let. 152, Moore, Dig., IV. 400; J. R. Clark, Jr., in Proceedings