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JUDICIAL DECISIONS INVOLVING QUESTIONS OF

INTERNATIONAL LAW

PETTIT, UNITED STATES MARSHAL FOR THE DISTRICT OF INDIANA

V. WALSHE

194 U. S. Rep. Ed. 205; 8. c. 48 L. Ed. 938 This case involved the construction of the treaties of 1842 and 1889, for the extradition of criminals. Article 10 of the treaty of 1842 provides for the reciprocal surrender between the two governments of fugitives from justice, but only

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 been there committed.

Article 1 of the treaty of 1889 named certain other offenses, and participations therein, as extraditable,

provided such participation be punishable by the laws of both countries.

Thomas Walshe, alias James Lynchebaum, was charged with the commission of murder in Ireland. He was arrested by the United States marshal in the state of Indiana on a warrant issued by Commissioner Shields, appointed by a United States court to execute the laws relating to the extradition of fugitives from the justice of foreign countries. The warrant commanded any marshal of the United States to arrest the alleged fugitive from the justice of Great Britain, and to bring him forthwith before the commissioner at his office in the city of New York in order that the evidence of his criminality be heard, and, if the same should be found sufficient, that the charge and the proceedings thereunder be certified to the secretary of state in order that a warrant might be issued for his surrender pursuant to treaty between the United States and Great Britain.

He was arrested in the state of Indiana by the United States marshal for that district. He sued out a writ of habeas corpus before the United States court for that district. In his return to the writ, the marshal avowed his intention to carry the accused directly before Commissioner Shields at his office in New York City. On the hearing, the court discharged the prisoner. From this decision the marshal appealed to the United States Court. It decided:

1. That the treaties of 1842 and 1889 lay at the basis of the litigation, and that the construction of a treaty being drawn in question, the Supreme Court has jurisdiction; that:

The construction of the treaties was none the less drawn in question because it became necessary or appropriate for the court below also to construe the acts of Congress passed to carry their provisions into effect.

2. Walshe could not be extradited under the treaties in question except upon such evidence of criminality as, under the laws of the state of Indiana—the place in which he was found—would justify his apprehension and commitment for trial if the alleged crime had been there committed.

That inasmuch as there are no common law crimes of the United States," the stipulations of the treaty for the surrender of fugitives from justice for offenses punishable by the laws of both countries, meant that the required evidence of criminality must be such as would authorize the apprehension and commitment of the accused for trial in that state of the Union in which he was arrested.

3. That the evidence of the criminality of the charge must be heard and considered by some judge or magistrate authorized by the acts of Congress to act in extradition matters and sitting in the state where the accused was found and arrested. that by the proviso in the Sundry Civil act of August 18, 1894;

it is made the duty of a marshal arresting a person charged with any crime or offense to take him before the nearest circuit court commissioner or the nearest judicial officer, having jurisdiction, for a hearing, commitment or taking bail for trial in cases for extradition; that this commissioner or judicial officer is necessarily one acting as such within the state in which the accused was arrested and found; that it was competent for the marshal for Indiana to execute within his district the warrant issued, but that it w

his duty to take the accused before the nearest magistrate in that district, who was authorized to hear and consider the evidence of criminality. If such magistrate found that the evidence sustained the charge, then under 85270 of the Revised Statutes, it would be his duty to issue his warrant for the commitment of the accused to the proper jail, there to remain until he was surrendered under the direction of the national government, in accordance with the treaty.

The judgment of the court below was affirmed that the marshal had no authority

to take the prisoner at once from the state in which he was found, and deliver him in New York before Commissioner Shields.

WRIGHT V. HENKEL

190 U. S. Rep. Ed. 40; L. Ed. 948 This case raised the question of identity of statutes, or laws, of the high contracting parties, defining crimes made extraditable by treaty; also the question of the right of admission to bail in extradition cases.

Wright was arrested on a warrant issued by Extradition Commissioner Alexander, of New York, on a complaint made by the British Consul General, charging him with the commission of the crime of fraud, as a director of the London & Globe Finance Corporation. The complaint charged him with knowingly making, circulating and publishing certain reports and statements of accounts of the said corporation, which were false, with intent thereby to deceive and defraud the shareholders or members of the said corporation; and also with altering and falsifying books, papers and writings belonging to said corporation, and with making and concurring in the making of false entries, etc., in the books of the company, with the like fraudulent intent.

Wright applied to the United States district court for the southern district of New York for writs of habeas corpus and certiorari, which were dismissed. From this decision he appealed to the United States Supreme Court. The court decided:

Treaties must receive a fair interpretation, according to the intention of the contracting parties, and so as to carry out their manifest purpose. The ordinary technicalities of criminal proceedings are applicable to proceedings in extradition only to a limited extent. The general principle of international law is that in all cases of extradition the act done on account of which extradition is demanded must be considered a crime by both parties, and, as to the offense charged in this case, the treaty of 1889 embodies that principle in terms. The offense must be made criminal by the laws of both countries. We think it cannot be reasonably open to question that the offense under the British statute is also a crime under the third paragraph of section 611 of the penal code of New York. Fraud by a bailee, banker, agent, factor, trustee, or director, or member or officer of a company, is made the basis of surrender by the treaty. The British statute punishes the making, circulating or publishing with intent to deceive or defraud, of false statements or accounts of a body corporate, or public company, known to be false by a director, manager, or public officer thereof. The New York statute provides that if an officer or director of a corporation knowingly concurs in making or publishing any written report, exhibit, or statement of its affairs or pecuniary condition, containing any material statement which is false, he is guilty of a misdemeanor. The two statutes are substantially analogous.

Absolute identity is not required. The essential character of the transaction is the same, and made criminal by both statutes.

As the state of New York was the place where the accused was found and, in legal effect, the asylum to which he had fled, is the language of the treaty, "made criminal by the laws of both countries, to be interpreted as limiting its scope to acts of Con

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gress, and eliminating the operation of the laws of the states. That view would largely defeat the object of our extradition treaties by ignoring the fact that, for nearly all crimes and misdemeanors, the laws of the states, and not the enactments of Congress, must be looked to for the definition of the offense. There are no common law crimes of the United States; and, indeed, in most of the states the criminal law has been recast in statutes, the common law being resorted to in aid of definition.

The court held that:

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When by the law of the state in which the fugitive is found, the fraudulent acts charged to have been committed are made criminal, the case comes fairly within the treaty, which otherwise would manifestly be inadequate to accomplish its purposes.

* The commissioner had jurisdiction, and that brings us to consider whether the commissioner or the circuit court erred in denying the application to be let to bail.

We are unwilling to hold that the circuit courts possess no power in respect of admitting to bail other than as specifically vested by statute, or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not in any case, and whatever the special circumstances, extend that relief.

The court held that no error of record appeared in the refusal to admit to bail; and the order of the district court was affirmed.

STATE OF MISSOURI V. STATE OF NEBRASKA, AND STATE OF NEBRASKA

V. STATE OF MISSOURI

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196 U. S., 23, Rep. Ed.; 8. C.; Book 49, L. Ed. 372; 197 U. S., 577, Rep.

Ed.; 8. C.; Book 49, L. Ed. 881 In this case the states of Missouri and Nebraska, respectively, filed a bill and cross bill to settle the question of a boundary line between the two states which had become the subject of controversy through a sudden change in the bed of the Missouri river. After the admission of Nebraska into the Union the river cut a new channel across and through the narrow neck of land at the west end of Island Precinct, about half a mile wide, making for itself a new channel, and passing through what was admittedly, at that time, territory of Nebraska. After the new channel was thus made, the old channel dried up. This change in the bed of the river became permanent. The precise question raised w whether the sudden and permanent change in the course and channel of the river, occurring July 5, 1867, worked a change in the boundary line between the two states. The Supreme Court held:

That the person whose land is bounded by a stream of water, which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor

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whose land is thus bounded is subject to loss by the same means which may add to his territory; and as he is without remedy for his loss, in this way, he cannot be held accountable for his gain.

This rule is no less just when applied to public than to private rights. * Where a stream which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary. * * The original thread of the stream continues to mark the limits of the two estates.

The court held these principles applicable as well to boundaries of private property, touching on streams, as to boundaries between states or nations found in running water.

Avulsion has no effect on boundary but leaves it in the center of the old channel. Accordingly the court adjudged:

That the middle of the channel of the Missouri river, according to its course as it was prior to the avulsion of July 5, 1867, is the true boundary line between Missouri and Nebraska.

LOUISIANA V. MISSISSIPPI

202 U.S. Sup. Ct. Rep. 1

This case involved a boundary dispute and its decision depended principally on the construction of various acts of Congress. It grew out of the enforcement of legislation with respect to oyster fishing in the waters of Louisiana and of Mississippi. The court said:

The act of Congress admitting the state of Louisiana (into the Union) gave that state all islands within nine miles of her coast, and the subsequent act of Congress admitting the state of Mississippi purported to give that state all islands within eighteen miles of her shore. Some islands within nine miles of the Louisiana coast were also within eighteen miles of the Mississippi shore, thus furnishing the basis for a boundary controversy.

The islands claimed by Louisiana in this case were all within three leagues of her coast. The act admitting Mississippi was passed five years after the Louisiana act yet Mississippi claims thereunder the disputed territory, as being islands within eighteen miles of her shore. If this repugnancy between the two acts existed, it is enough to say that Congress, after the admission of Louisiana, could not take away any portion of that state and give it to the state of Mississippi. The rule qui prior est tempore, potior in jure, applied, and section 3 of article 4 of the Constitution does not permit the claims of any particular state to be prejudiced by the exercise of the power of Congress therein conferred.

If the doctrine of the thalweg is applicable, the correct boundary line separating Louisiana from Mississippi in these waters is the deep water channel.

The term "thalweg" is commonly used by writers on international law in definition of water boundaries between states, meaning the middle or

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