
    MATTER OF REINITZ.
    
      U. S. Circuit Court, Southern District of New York;
    
      June, 1889.
    1. Habeas Corpus in federal court.] Under U. S. Rev. Stat. §§ 752, 753, a federal court may issue a writ of habeas corpus, where a prisoner is held under the process of a State court in violation of a law or treaty of the United States.
    3. Arrest; immunity of extradited person.~\ A person brought here from a foreign country charged with a crime, upon a trial for which he is subsequently acquitted, must have a reasonable time to leave the country, and an arrest in a civil suit before the lapse of such reasonable time will be ineffective to hold the prisoner who must under such circumstances be discharged and allowed such reasonable time to leave the country.
    
      Habeas Corjms from the U. S. Circuit Court in the Southern district of New York.
    The facts appear sufficiently in the opinion.
    
      
      Benno Loewy, for relator
    
      Solomon, Dulon & Sutro, for respondent.
    
      
       These sections are as follows :
      ‘‘ § 752. The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.
      “ § 753. The writ of habeas corpus shall in no case extend ■ to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process or'decree of a court or judge thereof ; or is in custody in violation of the Constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an .act done or omitted under any alleged right, title, authority, privilege, protection or exemption claimed under the commission or order, or sanction of any foreign State, or under color thereof, the validity and -efiect whereof depend upon the law of nations ; or unless it is necessary to bring the prisoner into court to testify.”
    
   Brown, J.

The prisoner, upon the demand of this-Government, was extradited from Queenstown, Ireland, in April, 1889, under the treaty of 1842, upon a charge of forgery. He was tried upon that charge, in this city,, before a court and jury, and was acquitted on June 19. Within a few minutes thereafter, as he was leaving the court house he was arrested by the sheriff of this county upon an, order of arrest granted by the supreme court of the State on April 22, in a civil action for the recovery of $4,220.90, moneys of the plaintiff, alleged to have been wrongfully converted by the prisoner to his own use. Writs of habeas corpus and certiorari from this court were-thereupon obtained under section 752 of the Revised Statutes.

Upon the returns made to the writs by the sheriff,, including copies of all the papers in the civil action, there is no controversy as to the above facts ; and the only question is whether the prisoner after his acquittal was liable to-.arrest before the expiration of a reasonable time for his return to Ireland from whence he was extradited.

A preliminary objection is made that this court has no-jurisdiction to issue a writ of habeas corpus in such a case. But sections 752 and 753 of the U. S. Rev. Stats, provide for writs of habeas corpus to inquire into the “cause of restraint of liberty ” where the prisoner is “ in custody in violation of the Constitution, or of a law or treaty of the United' States.” The petition. presents facts sufficient to raise an inquiry upon that subject; and if a case under that clause of section 753 is made out, habeas corpus from the federal courts is an appropriate remedy, though the prisoner beheld under -process of the State courts (Exp. Royall, 117 U. S. 241; U. S. v. Rauscher, 119 Id. 407, 431; Wilden-. bus’s Case, 120 Id. 1). The preliminary objection therefore presents no different question from that on the .merits of the application.

Until the decision in«the case of Eauscher {supra), in December, 1886, wide differences of opinion had prevailed in both the federal and State courts whether a prisoner extradited under a treaty for one offence could be tried for another. The supreme court in the case of Eauscher up on full consideration and a review of the leading authorities, has definitely settled that question, holding that an extradited prisoner cannot be arrested or tried for any offence except that for which he was extradited until the termination of the extradition proceedings and the lapse of a reasonable time thereafter to enable him to return to the country from which he was brought.

The case of Eauscher, however, like all the other reported cases on this subject, was a case of arrest and trial on a criminal charge. The only reported case to which I have been referred of a prisoner extradited from a foreign country and arrested in a civil suit is that of Adriauco v. Lagrave (1 Hun, 689 ; rev’d in 59 N. Y. 110), which arose in 1874, and does not essentially differ from the present case. The order of arrest was there set aside in the General Term, but was upheld in the court of appeals. The supreme court in the ease of Eauscher referred to the Lagrave case, and while alluding to the difference between an arrest on a criminal charge and an arrest in a civil suit incidental to the collection of a debt, withheld any expression of opinion as to the legality of an arrest in a civil suit under such circumstances.

The question to be now determined is whether there is any difference in the principles applicable that should lead to a different result.

The main difference of opinion has been as to the construction to be put upon extradition treaties ; and whether the surrender of the prisoner is to be deemed a surrender for a particular purpose only, with the implication that he is not to be restrained of his liberty for any other cause, or whether the surrender, when made upon compliance with the preliminary conditions of the treaty, becomes an absolute surrender and without any such implied limitation. The latter was the view of a majority of the court of appeals in the case of Lagrave, while the opposite view was maintained at the General Term.

The decision of the court of appeals, however, was not based upon any grounds peculiar to an arrest in a civil suit, but upon grounds applicable alike to a civil and criminal arrest, without distinction. As those grounds are disapproved by the supreme court in the case of Rauscher and the right of criminal arrest denied, the Lagrave case, as an ^authority for a civil arrest, fails also. The opinion of the supreme court, treating the subject in the broadest manner, upholds in its general scope the views of Daniels, J., at the General Term in the Lagrave case ; and it reinforces them by its construction of sections 5270, 5272 and 5275 of the Rev. Stats, which are declared to be supplementary to the extradition treaties, and to enforce their implied limitations. The right of asylum is a principle of public laxv, ) ecognized by all sovereignties. Ro concession by a surrender of a prisoner in abridgment of this right is made, except for grave offences under careful restrictions that exclude minor misdemeanors, most political offences, and much more mere claims for the collection of debts. Though the implied restrictions of the treaty are for the most part spoken of by the supreme court in reference to a criminal arrest, since that was the question before the court, yet there are many passages in the opinion that in principle embrace equally arrests in civil suits. At page 420 it is said : “It is- therefore very clear that ... it was not intended that the treaty should be used for any other purpose than to secure the trial of the person extradited for one of the offences enumerated in the treaty.”

Again at p. 422 : “ As the right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place all show that it is for a limited and ■defined purpose that the transfer is made, it is impossible to •conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is ■extradited, without an implication of fraud upon the rights •of the party extradited, and of bad faith to the country which permitted his extradition.”

A.civil arrest is clearly as incompatible with such limitations as an arrest on a criminal offence.

So just in principle are such limitations that the court of appeals in the Lagrave ease declared that the provisions for protection against lawless violence under section 5275 U. S. ¡Rev. Stat. “ ought (by legislation) to be extended to protection from other prosecutions or detentions.” But that section, as •construed by the supreme court, does extend to protection from other prosecutions. It declares that “ the President ■shall have power to take all necessary measures for the transportation and safe keeping of such accused person, and for security against lawless violence, until the final conclusion of his trial for the crimes or offences specified in the warrant of extradition, and until his final discharge from custody, or imprisonment for or on account of such crimes or ■offences, and for a, reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safekeeping and protection of the accused.” The language of the section includes not merely “ security against lawless violence,” but in addition thereto “ the safekeeping and protection ” of the accused until his acquittal, or, if convicted, until he has served out his sentence ; and for a reasonable time thereafter. Reasonable time for what? “ Obviously,” says the supreme court, “ until he shall have had a reasonable time to return unmolested to the country from which he was brought.”

¡M¡r. J ustice Gbay concurred in the judgment of the court solely upon that construction of the statute.

NTo reasons are perceived why the limitations of the treaty and the provisions of the statute, as thus construed, are not as applicable to a civil arrest as to a criminal one. The prisoner may, indeed, give bail in a civil action. But so might he in all those minor criminal offences for which he could not be extradited, and upon which no arrest is permitted. If he could not procure bail on the civil arrest, or pay the final judgment, he might, indeed, be discharged under the State practice after a certain term of imprisonment; buttliat term might be as long as the sentence allowed on conviction for many of the minor crimes.

It may be said that the implications of extradition treaties have reference to crimes only ; and that neither of the-contracting governments can be supposed to have concerned itself about the mode of collecting private debts, or about any arrest of a prisoner that might be incidental to civil suits. But this is hypothesis only ; and an examination of some of the more recent treaties shows the contrary. Thus the treaty of 1872, between England and Germany, (art. 11,)-provides that “ A person surrendered can in no case be kept in prison . . . for any other crime, or on accoimtofany other matters, than those for which the extradition shall have taken place {Olarlce Extradition, App. OV).

It is certain that no government surrenders a person for the purposes of arrest in a civil action, and such an arrest is-as much an infringement of personal liberty and a diversion from the object of the treaty, as an arrest for crime ; and there is less justification for the former, since the courts of all civilized countries are alike open for the prosecution of money demands, while crimes can be punished only within-the jurisdiction where committed.

The main question must be as to the presumed intention of the treaty itself, and of the Act of Congress supplementary to it. If these intend only the surrender of the prisoner for' the limited purpose of a trial for the extradition offence, and if, by express enactment and the implications of good faith, they guarantee him protection for a reasonable time thereaftér to enable him 1 ‘ to return unmolested ” to the country from which he was brought, as the supreme court declares,, a civil arrest must be as unlawful as a criminal one.

Section 5275, moreover, makes no distinction between a civil or a criminal arrest, against which the accused may require protection for a reasonable time to enable him to-return. The demands of public justice, on elementary principles, are superior to claims for the satisfaction of private-debts. If, therefore, the demands of the State must give-way to the prisoner’s right of return, much more it would seem must the right of private arrest.

There are numerous cases holding that a person brought within the jurisdiction by violence or fraud is amenable to-prosecution at the instance of persons not privy to the wrong (Ker v. Illinois, 119 U. S. 436 ; Mahon v. Justice, 127 Id, 700).

These cases all proceed upon the ground that the defendant is not himself clothed with any immunity or right of protection by the mere fact that third persons have done him violence or injury in bringing him within the jurisdiction. Helias his private remedy for that wrong. Hence, though the-person guilty of the wrong cannot profit by it, in any suit of his own, this furnished no defence against public justice or against private suitors, who are in no way responsible-therefor. But this principle c.annot apply where the prisoner is himself clothed with a legal right or immunity. And in the case of Kauscher, the supreme court declare that the-prisoner is clothed with such an immunity. At p. 422 it is said that it is impossible to conceive of the exercise of jurisdiction for any other purpose than that mentioned in the treaty without an implication of fraud upon the rights of the party extradited.” Again, as respects the prisoner’s-right of return, it is said (p. 424) that section 5275 “is conclusive upon the judiciary of the o'ighi conferred upon persons brought from a foreign country into this under such a-treaty.” At page 430 also, the court again speak of a reasonable time to return, as a “ right of the prisoner under such-circumstances.” In Ker v. Illinois (119 U. S. 443) also, the ■court say that the prisoner “ came to this country clothed with the protection which the nature of such proceedings and the true construction of the treaty gave him. One of the rights with which he was thus clothed was that he should be fried for no other offence,” etc.

If the opportunity to return is a “ right conferred upon ' the prisoner, and a duty owed to the extraditing Gfovernment, it is manifest they are infringed by a civil arrest as much as by a criminal one. The good faith of third persons who prosecute the prisoner becomes immaterial (See Lowell, J., on Winslow’s Case, 10 Am. Law Rev. 617,620).

Finally, the language used by the various publicists and text writers, referred to with approval by the supreme court in the Eanscher case, forbids an arrest in one form of proceeding as much as in the other. Mr. William Beach Lawrence says that the prisoner is entitled, unless found guilty •of the offence for which he is extradited, to be restored in .safety to the country of his asylum at the time of his extradition! Judge Cooley declares that “ the prisoner has a right to have the particular offence disposed of, and then to depart in peace.” And Mr. Spear considers it “ the duty •of courts .to secure to him, as against all attempts at legal interference therewith, a reasonable opportunity to exercise this right (Spear on Extradition, 2 ed., 557-131-145).

I must hold, therefore, upon the principles and authorities approved by the supreme court in the case of Eauscher, that the prisoner at the time of his arrest, not having liad a reasonable time to return to Ireland after his acquittal, was under the protection of the United States, and not subject to arrest in the State or Federal courts for any cause arising prior to his extradition, and that the State court, when the prisoner was arrested by the sheriff, did not have jurisdiction of the prisoner at that time, so as to subject him thereto ” (p. 433). When persons are in custody under process of the State courts, and the same remedies exist there, - although it may sometimes be more appropriate to refer the applicants for relief to the State tribunals (Exp. Royall, 117 U. S. 241; Exp. Coy, 32 Fed. Rep. 911), yet in a matter involving personal liberty, and considering the several successive appeals to which the petitioner might be subjected in the State courts, I think the prisoner is entitled to the-more expeditious remedy of the Federal tribunals.

The prisoner is accordingly discharged; and the court fixes a week after his release by the sheriff, as a reasonable-time under the statute during which he is entitled to exemption from arrest for the purpose of returning to Ireland. 
      
      In Woez v. Herrman, (N. Y. Supreme Court, First District; Special Term, at Chambers, June, 1889) it was held (1.) that the mere fact that a debtor was brought within the jurisdiction by extradition proceedings, not taken at the instance, nor in behalf of his creditor, is-not sufficient ground for vacating an order of arrest. (2.) That a plaintiff, having grounds both for attachment and for arrest of the defendant in the same action, should not be required to elect between them, when his attachment has not secured sufficient property to pay the amount due.
      Motion to vacate order of arrest or to compel election between arrest and attachment.
      Ingraham, J.—I do not think the defendant is entitled to his discharge on the ground that he was brought within the jurisdiction of the court by fraud or deceit. The warrant issued by the United States commissioner was granted at the request of the Austrian consul as representing the Austrian government. It was not brought on behalf of this plaintiff or for the purpose of aiding in the recovery of his money. In all cases where the process was set aside it was because it was issued in favor of the person participating in or perpetrating the fraud. A creditor not implicated in the wrong could proceed against the debtor within the jurisdiction of the courts of this State, and I can see no-reason why this defendant, being within the jurisdiction of this court, should not be arrested under an order of arrest because he had originally, some days before the order was issued, been brought within the State by the warrant issued by the United Stides commissioner at the request of the Austrian government.
      The defendant having interposed affidavits on which the motion to vacate this order of arrest was made, the question now is whether on all the papers before the court, facts appear that would justify the granting of the order. After considering all the affidavits, I am entirely satisfied that this defendant did embezzle the property of the plaintiff, and that he left the State to escape the consequences--of such embezzlement. The fact that he has sold the property •of the plaintiff and converted the proceeds thereof to his own use, .disposes with the necessity of a demand for the return of the property. The motion to vacate the order of arrest is, therefore, denied. ' The affidavits are sufficient to sustain the attachment, and the motion to vacate that is denied.
      As it does not appear that the plaintiff has attached property sufficient to pay the amount due to him, I do not think he should be compelled to elect between his attachment and order of arrest.
     