United States ex rel. Neidecker v. Valentine

L. HAND, Circuit Judge.

These are appeals from the denials of writs of habeas corpus to review the legality of the relators’ detention in the following circumstances. Citizens of the United States, they were taken into custody by the respondent, Valentine, police commissioner of New York, upon cable request from the proper French authorities; the charge against them concerned financial dealings in Paris, whence they had fled to New York to escape arrest. Upon the request of the “acting” French consul, a United States Commissioner for the Southern District of New York issued warrants for their arrest in pursuance of section 651 of title 18, U.S. Code (18 U.S.C.A. § 651); the writs were allowed at this point in the proceedings. The relators agree that they cannot succeed, unless the commissioner had no power to hold them awaiting the outcome of the proceedings, and that he had that power unless our treaty with France does not authorize the Secretary of State under any circumstances to surrender Americans who have committed extraditable crimes in France and sought asylum here. The judge thought that it did so authorize him; for this reason he dismissed the writs and the relators appealed.

The controversy is very narrow; it is limited to the meaning of article 5 of our extradition “convention” with France (37 Stat. 1530), which is in these words: “Neither of the contracting Parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention.” The first French extradition treaty was negotiated in 1843 (8 Stat. 580), and remained unchanged until 1909 (37 Stat. 1526); it required both parties to surrender all “persons” without condition, and under our interpretation of such clauses, it covered nationals of the contracting parties. Charlton v. Kellv, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274, 46 L.R.A.(N.S.) 397. But France, following a tradition more than a century old in 1843, did not so understand the words, and we had never been able to secure the delivery of a Frenchman for trial. She regarded it as an equivalent that, unlike ourselves, she will prosecute her nationals for crimes committed abroad. The language of article 5 appears for the first time in our extradition treaty with Prussia of 1852 (10 Stat. 964, art. 3); it is in contrast with article 24 of the almost contemporaneous treaty with the two Sicilies of 1855 (11 Stat. 639), which explicitly exempted “citizens and subjects of each of the high contracting parties.” So it might be plausibly argued that throughout the fifties and sixties the Prussian clause meant that, although the parties were not obliged to surrender their own nationals, they reserved a discretionary power to do so; while internationally this would indeed be brutum fulmen, it might have its uses domestically. The Prussian clause appeared in substantially the same form in eight treaties between 1852 and 1874 without apparently raising any question;1 but in that year the point was mooted under the Mexican treaty of the surrender of a Mexican, who having committed a crime in Texas, fled to Mexico. Secretary Fish refused to request the Mexican authorities to surrender him, and although his reasons are apparently not now accessible, the ruling itself was inconsistent with the belief that the clause reserved to both parties a discretionary power of surrender. If it did, it certainly was his duty to ask for the exercise of that discretion. In 1884 the converse situation arose; an American, having committed an extraditable crime in Mexico, sought asylum here. Secretary Freylinghuysen refused to deliver him upon demand by Mexico, following the precedent of 1874. This ruling does not as such deny the existence of a discretionary power, but the reasons given at the time did deny it, for the treaty was construed as absolutely exempting nationals. The same sort of case arose again in 1888 and Secretary Bayard also refused to surrender the fugitive, accepting the ruling of Secretary Freylinghuysen and giving the same reasons more explicitly. Finally in 1891 as in 1874 a Mexican who had committed an extraditable crime here fled to Mexico. Secretary Blaine following the earlier precedents, refused to demand his surrender, declaring that the clause had been “held to preclude the surrender of a citizen of the United States”; and that for this reason “the government is precluded from demanding the extradition of fugitives in the present instance.” Tn the same year a writ of habeas corpus came on before Judge Maxey in the Western District of Texas, to discharge from arrest an American woman charged with having killed a man in Mexico. Ex parte McCabe (D.C.) 46 F. 363. He sustained the writ, particularly relying upon the four precedents we have just cited. We are not immediately concerned with the correctness of that decision when rendered, though it was never appealed; but the fact that the treaty had been judicially as well as diplomatically construed is of importance.

Five years before, in 1886, when Secretary Fish’s ruling was already twelve years old, and Secretary Freylinghuysen’s was two, we negotiated an extradition treaty with Japan in which a variant for the first time appeared: “Neither of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention, but they shall have the power to deliver them up if in their discretion it be deemed proper to do so.” (Article 7, 24 Stat. 1017.) It will be at once observed that this did explicitly confer „ a discretion, which, as we have suggested, the Prussian clause might perhaps have originally borne. With these alternatives before us, we negotiated seventeen extradition treaties between 1891 and 1909, and three more in 1909, including that at bar. Of these, fourteen adopted the Prussian clause,2 and six, the Japanese.3 Since 1909 the first has been repeatedly used, but the second apparently disappeared in 1905.

The Supreme Court in 1913 had before it an extradition treaty with Italy, which, like the French treaty of 1843, required the surrender of all “persons” unconditionally.4 This the court held to include an American fugitive from Italy, though Italy, like France, refused to reciprocate, insisting that her power to prosecute her own nationals for crimes committed abroad was an equivalent. The decision is not therefore in point here, but the opinion (229 U.S. 447, pages 467, 468, 33 S.Ct. 945, 57 L.Ed. 1274, 46 L.R.A.(N.S.) 397), classified our treaties into two classes, those which require the surrender of nationals, and those in which the Prussian clause “exempts” them. Significantly the court speaks of the Japanese clause as a “qualification” of only the first. We cannot entirely disregard this language, as the respondent would have us do, though it is true that it is not as authoritative as though the case had turned upon it. A ruling of an English court (In re Galwey (1896) 1 Q.B. 230), merely goes to show how completely the clause should be interpreted by its history. Before 1887 the extradition treaty between Belgium and Great Britain had forbidden any surrender of nationals at all. Regina v. Wilson, 3 Q.B. 42. In that year it was amended and what we have called the Prussian clause was substituted. Obviously the amendment meant to make a change; it would make none at all, if the court continued to treat it as an exemption. The situation was just the reverse of that before us now; that is, an amendment to modify a treaty which had compelled the surrender of all nationals. Nothing relevant for us can therefore be inferred, because In re Galwey held that a discretionary power had been conferred.

It appears to us that the language of article 5 is not so uncompromising as to be immune from interpretation; few statutes are. A treaty is a contract, and a contract does not .prescribe that the parties shall retain their freedom of action, unless it means to exempt them from other stipulations it may contain. An extradition treaty “binds” the parties, and as to matters which it was not meant to bind them, it was natural to say that they should not be “bound”; from that it is not to be assumed that they meant in addition gratuitously to assert that they reserved the’power to surrender their own nationals if they chose. They could do so without any such reservation. Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421; Greene v. U. S., 154 F. 401, 410 (C.C.A.5); U. S. ex rel. Donnelly v. Mulligan, 76 F.(2d) 511 (C.C.A.2). True, we did just that in the Japanese clause, and it was unnecessary internationally ; but, as we have already suggested, it may have been adopted to give the Secretary power under our implementing statute, section 651, title . 18, U.S. Code (18 U.S.C.A. § 651), which requires that there shall be some “treaty or convention for extradition.” That means not only that a treaty exists, but that it assumes to cover the situation. If it be once conceded that the words do not speak so clearly that usage and practical construction are irrelevant, the relators’ construction is surely right, for it would be hard to imagine a setting more convincing. The uniform rulings of .four secretaries of state, backed by that of a court, were surely not disregarded when the words so construed were used later. This conclusion is confirmed by the parallel use on a number of occasions of the Japanese alternative, in which exactly that provision is explicitly adopted which the precedents declined to find implicit in the original. Finally, it is not likely that in dealing with France, a country whose position had been declared for over a hundred and fifty years, and which we knew would under no circumstances surrender her nationals, we should have reserved to her a discretion to do what she had consistently refused to do' in the face of more peremptory words; or to ourselves a discretion to accept a unilateral burden. It is indeed unfortunate that there should be no way by which the relators can be punished, if they are guilty; and we should feel free to act more drastically if we had before us only customary law which had persisted beyond the period which had created it, and yet had not called forth enough opposition for its repeal. But we are dealing with a clause chosen by the President and Senate out of the diplomatic locker, and encrusted with its proper traditions, which in such matters count for much. Nielsen v. Johnson, 279 U.S. 47, 52, 49 S.Ct. 223, 73 L.Ed. 607; Factor v. Laubenheimer, 290 U.S. 276, 295, 54 S.Ct. 191, 78 L.Ed. 315. Even though we thought we could infer how they would act in this specific case, a decent reserve and a justified doubt should restrain the substitution of our own judgment for the words they selected. But it is by no means self-evident that they would consider the prosecution of Frenchmen in French courts an equivalent of their surrender; and even if they did, other considerations might block a bargain, for into diplomatic negotiations much enters which does not see the light. Though we were not ourselves disposed to higgle, we should have no right to impose our disposition upon the result of their negotiations. The arguments by which the exemption is defended may not indeed be persuasive; “les juges naturels” may be no more than an euphemism for friendly bias; but nationalism is not dead, and most nations have shown a persistent repugnance to submit their citizens to foreign courts. We have indeed an honorable record; but it is uncertain how far our diplomacy is yet prepared to give where it does not receive.

Orders reversed; relators discharged.

1 Bavaria, 1853; Hanover, 1855; Austria, 1858; Baden, 1857; Norway and Sweden, 1860; Mexico, 1861; Peru, 1870; Belgium, 1874.

2 Sweden, 1893; Norway, 1893; Peru, 1899; Chile, 1900; Bolivia, 1900; Belgium, 1901; Servia, 1901; Denmark, 1902; Cuba, 1904; Spain, 1904; Panama, 1904; Honduras, 1909; Dominican ReDublie. 1909; France, 1909.

3 Argentina, 1896; Orange Free State, 1896; Mexico, 1899; Guatemala, 1903; Nicaragua, 1905; Uruguay, 1905.

4 Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274, 46 L.R.A.(N.S.) 397.