According to Section 5270 of the Revised Statutes, if the committing magistrate deems the evidence sufficient to sustain the charge under the provisions of the treaty, he must certify the same; and by a common treaty provision, the amount of evidence necessary for commitment is to be tested by what the law of the place where the fugitive was found would justify for apprehension and commitment, if the crime were there committed. Thus, in

1 "The place by whose law the question is to be tested is, if the fugitive is apprehended in the United States, the State in which he is found." Moore, Dig., IV, 391, citing Pettit v. Walshe, 194 U. S. 205. See, also, Mr. Fish, Secy. of State to Mr. Westenberg, Dutch Minister, Nov. 12, 1873, For. Rel. 1874, 785, Moore, Extradition, I, § 337, p. 517, note 1.

AUTHENTICATION OF DOCUMENTARY EVIDENCE OF THE DEMANDING GovERNMENT. The documentary evidence of the demanding government is rendered admissible if authenticated according to the requirements of the existing law of the United States. §5 of the Act of August 3, 1882, 22 Stat. 216, U. S. Comp. Stat. 1918, § 10116, provides: "In all cases where any deposition, warrants, or other papers or copies thereof shall be offered in evidence upon the hearing of any extradition case under Title sixty-six of the Revised Statutes of the United States, such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant or other paper or copies therof, so offered, are authenticated in the manner required by this act."

To understand the purport of the foregoing provisions it is desirable to examine the full and careful discussion contained in Moore, Extradition,_I, chap. XIV, and also the documents cited in Moore, Dig., IV, 384-388. By such process it becomes possible to grasp the significance of the several Acts of Congress from 1848 until 1882 and of the decisions declaratory of them. With respect to what constitutes compliance with the Act of 1882, attention is called to the following cases: In re Behrendt, 22 Fed. 699; In re McPhun, 24 Blatchf. 254; In re Krojanker, 44 Fed. 482; In re Breen, 73 Fed. 458; In re Glaser, 176 Fed. 702; In re Luis Oteiza y Cortes, 136 U. S. 330; Grin v. Shine, 187 U. S. 181; Elias v. Ramirez, 215 U. S. 398; In re Lincoln, 228 Fed. 70.

Respecting the authentication of extradition papers by consular officers, see Mr. Knox, Secy. of State, to the Mexican Ambassador, April 13, 1910, For. Rel. 1910, 731, 732, where it was declared: "This department is of the opinion, however, that a consular officer of the United States, resident in a foreign country in which the United States maintains a diplomatic mission, is not authorized under this statute to authenticate extradition papers, and that were the question raised before the courts, the courts would so interpret it."

applying local requirements, it was held by Judge Morrow in the Ezeta Case, that the evidence of criminality

need not be such as would be required at the trial of the accused, but must be such evidence as ordinarily obtains at a preliminary examination, and amount to probable cause of his guilt; probable cause being such evidence of guilt as would furnish good reason to a cautious man, and warrant him in the belief that the person accused is guilty of the offense with which he is charged.'

This statement is believed to be declaratory of the principle involved, particularly in view of the nature of the proceedings before the committing magistrate.2

It may be observed that the furnishing of requisite proof that the person arrested is in fact the fugitive charged with crime and whose extradition is sought, may prove to be a difficult task.3 Frequently the demanding government finds it impossible to send to the United States persons capable of making proof of identification; and such individuals are not to be found at the place where the hearing is had. For that reason it is believed that there should be embraced within the depositions, whenever possible, some means of establishing the identity between the person arrested and him whose surrender is demanded. A photograph of the latter, or a specimen of his handwriting or of his finger-print, may suffice for such a purpose.

(b)

§ 336. Defensive Testimony.

Pursuant to the provision of Section Three of the Act of Congress of August 3, 1882,4 a fugitive is regarded as entitled to call witnesses in his own behalf, and to testify himself, if he so desires.5

1 In re Ezeta, 62 Fed. 972, 982, citing Aaron Burr's Case, 1 Burr's Trial, 11; Munns v. Dupont, 3 Wash. C. C. 31; In re Farez, 7 Blatchf. 345; In re Wadge, 15 Fed. 864; 16 Fed. 332; In re Macdonnell, 11 Blatchf. 170; In re Behrendt, 22 Fed. 699; Benson v. McMahon, 127 U. S. 457, 462. See, also, opinion of Mr. Nelson, Atty.-Gen., 4 Ops. Attys.-Gen., 201, Moore, Dig., IV, 388; Moore, Extradition, I, §§ 337-340; Mr. Olney, Secy. of State, to Mr. Townsend, Nov. 13, 1896, 213 MS. Dom. Let. 680, Moore, Dig., IV, 390; In re Piaza, 133 Fed. 998; In re Glaser, 176 Fed. 702, 704.

2 Benson v. McMahon, 127 U. S. 457, 462-463.

3 See, for example, Ex parte La Mantia, 206 Fed. 330, 332-333.

422 Stat. 215, U. S. Comp. Stat. 1918, § 10114.

5 In re Farez, 7 Blatchf. 345; In re Kelley, 25 Fed. 268. "The magistrate is not bound to adjourn proceedings to enable the accused to obtain evidence of an alibi." Moore, Dig., IV, 391, citing In re Wadge, 15 Fed. 864.

HABEAS CORPUS PROCEEDINGS

[§ 337 On the other hand, the Supreme Court of the United States has held that Section Five of the same Act of Congress respecting the admissibility of depositions when certified in the manner prescribed, is not applicable to depositions offered on the part of the accused, and that such documents when so authenticated are not admissible.1

In view of the nature and purpose of the inquiry before the committing magistrate, the evidence on the part of the accused should be directed to show that he did not in fact commit the acts charged against him, or that the acts so charged did not constitute any extraditable offense. Thus, for example, he might be able to offer convincing testimony that an act of robbery laid at his door was, by reason of the attending circumstances, of a political character, thus rendering the actor outside of the scope of the treaty.2 On the other hand, evidence to show justification or excuse for an act committed by the accused, being a matter of defense, should be reserved until the trial before the court of the demanding government, and hence excluded from the consideration of the committing magistrate.3

(c)

§ 337. Scope of Inquiry in Habeas Corpus Proceedings. None doubt that a writ of habeas corpus cannot perform the function of the office of a writ of error. The precise scope of the inquiry to be made by the court issuing the writ in extradition cases was well stated by Mr. Justice Blatchford, when, as a District Judge in 1875, he announced the decision of the court in the case of In re Stupp. He declared:

In full conformity with these views, the great purposes of the writ of habeas corpus can be maintained, as they must be. The Court issuing the writ must inquire and adjudge whether the Commissioner acquired jurisdiction of the matter, by conforming to the requirements of the treaty and the statute;

1 In re Luis Oteiza y Cortes, 136 U. S. 330, 336-337.

2 This was successfully shown, for example, in the Rudovitz Case. 3 In re Cienfuegos, 62 Fed. 972, 976. In Ex parte Charlton, 185 Fed. 880, 883-884, it was held that the question of the sanity of the accused at the time of the commission of the crime charged was a matter of defense and could only be interposed when he was put on trial; also that inquiry as to the question of his sanity subsequent to the commission of the offense could only be raised immediately before the trial, and then in the forum where the trial might be pending.

In re Luis Oteiza y Cortes, 136 U. S. 330; Ornelas v. Ruiz, 161 U. S. 502, 508.

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.

66

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.

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