The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-09-12

Oillt (dct lidt Ids Dttl VitStiNNo VI
that / can find. in which the question now
presented is decided is the Heinrich case.
Ii is my duty to give to the decisions or
the federal courts I'm other circuits the
weight and consideration to which they are
entitled in view of the ability and learning
of the judges who decided them; but they
are not binding in this circuit as authorf-
ties and precedents, and finally are en-
titled to only such consideration as the
reasoning of the case justifes. In the
Heinrich case / do not find any considera-
ton given to some features of the treaty
and statute that are controlling with ne
at this hearing, and, therefore, as a mat
self compelled to be actuated solely by my
own Judgment as to the scope of the treat
les and statute.
TREATY OF 1912.
''In Article " of the treaty of 1872 it
was provided that the United States and
the King OF Great Britain upon mutual
acquisitions, should deliver up to justice all
persons who. being charged with certain
specified crimes. should seek al asylum or
should be found within the territories of
the other. provided that this shall be done
only upon such evidence of criminality as
according 10 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 Of
Tense had there been committed. The pc
titioner in this case is charged with being
an escaped convict. So far as the issues
TO be tried before the examining magis-
trate that may arise upon the Sufflclency
OF the record of conviction to be presented
by the demanding government are con-
cerned. and so far as the determination OF
the issue made by the petitioners denial
that he is the person who was convicted is
concerned, IL is very clear TO me that those
issues would be controlled by Article y of
the treaty of 1872 i'm connection with Sec
ton 500 of the statutes relating to ex-
tradition.
''In the recent case of Wright VS.. Hen
ker, % S. c. Rep. 5S1, it is very clearly de-
termined that the representatives of the
two governments in making the treaties
of 1912 and 1889 had respect 10 the dual
form of the government of the United
States. OF course. the treaty making power
is with the national end of our duality
but 1t was competent for the national gov
eminent to make the test of. the existence
OF extrad1table crimes, and to make the
test of the definition of the crime depend
upon the state law; and in the treaty, as
the words of the treaty themselves clearly
Indicate, the test of the right of the British
government to demand the return of an ac-
cused person was made to rest upon the
law of the place where he was f~ound-that
place being determinable by the lines of
the states, districts and territories that
make up the United States, and / have no
doubt that such is the situation with re-
spect to the provinces and colonies OF
Great Britain, because the contracting par
ties referred to an accused person who
shall seek an asylum, or who shall be
found within the territories of the other
and that the return could only be had upon
evidence sufficient, according to the laws of
the place where the person shall be found.
TO justify his commitment If the offense had
been committed there. And In Section 500
R. s., enacted TO carry the provisions Of
extraditioD treaties into effect, the magis-
trates referred to may upon complaint made
under oath charging any person found with
In the limits of any state. district or terri
tory, with having committed within the
jurisdiction of the foreign government an
extraditable crime, issue his warrant, etc.
FACT THAT is RECOGNIZED.
$50 that it is absolutely clear to my
mind that the one nation was not dealing
with the other merely as national entities.
1t was in that capacity only that they
could execute the treaty, but each hac re-
gard to the situation of the other, and. on
the part of the British government, the
dual character of our institutions is very
clearly recognized. We have no common
law crimes in this country. The penal code
enacted by Congress is very limited. The
great bulk of the crimes that are defined
by the statutes are found in the penal codes
of the States alone; and so If an accused
person is found in Indiana and his return
TO Great Britain is demanded, the right of
extradition stands upon whether or not the
offense with which he is charged is an Of
Tense under the laws of Indiana. That is
the substance of it, for it is made a condi-
ton upon which the return may be had,
that the evidence of criminality shall be
determined according to the law of the
place where the person is found, and such
as would justify his commitment for trial
if the crime or offense had there been COM
mitted. Article Y. treaty of 1872.
IF an OffenSe is committed in Indiana, of
course IL is contemplated by the law of
Indiana that the preliminary hearing and
the commitment for trial shall be in In
diana. Neither of the treaties nor the stat
ute say in so many words that the hearing
shall be had in the place where the ac-
cused party is ound, but, inasmuch as the
law of the place where he is found not only
with respect to the substantial definition
of the crime, but also with respect to the
competency of witnesses and the admissi-
bility of evidence are made controlling. it
was also intended that the hearing should
be had at the place where he was found,
particularly in view of the reference to the
fact that the return is only justified under
these circumstances that would warrant his
commitment II the ofeDse was
in the jurisdiction where he was found
OF course If an offense Is committed there,
his preliminary hearing must be had i'm
that jurisdiction.
IN HEINRICH CASE.
Now, returning TO the Heinrich case, I
observe that the court thought it sufficient
ground upon which to decide that the war
rant was one that run throughout the
United States, to observe the fact that the
exradition is arranged for by treaty between
the two countries in their national capac-
ity. OF course, that is necessarily so. The
treaty making power is lodged in the ma
tional part Of our institutions. But because
the United States, as a national entity, alone
has authority to make the treaty, it does
not follow that the basis of returning peo-
pie who are demanded under an extradition
treaty is to be the national law, or under
the national definition of crime. No atten-
ton was paid i'm the Heinrich case to the
fact. which has been thoroughly established
by the courts, that the operative basis of
extraditiOn treaties is the law of the place
where the accused person is found.
Now, while il is true that the court
in New York may decide the question ac-
cording to tine law Of I~ndiana-and. there
fore. the decision of Wright VS.. Henkel is
not conclusive upon the question now before
the court-yet, inasmuch as il would be
necessary to have a person committed in
Indiana for an offense committed in IN
diana, before a magistrate of Indiana, /
shall hold. until controlled by explicit leg!s-
lation or until the Supreme Court shall by
definite construction declare that the max
ers of the treaty intended that an accused
person. innocent, could be taken
from Alaska to New York for the purposes
of a preliminary hearing, or that an Amer
lean citizen, presumably innocent, could be
taken from Australia TO London for the pur-
pose of a hearing, that no such intention
was within the view of the makers of this
treaty and that they intended that when
the basis of the extraditability of the crime
was made the law of the place where he was
found. that the hearing would be had there,
similarly to the hearing where he would be
committed for trial il the offense had been
committed in the place where he was found.
SO L will sustain the exceptions of the