
    [Philadeiphia,
    August, 1823]
    The Commonwealth, at the instance of EDWARD SHORT against DEACON, keeper of the prison of the City and County of Philadelphia.
    HABEAS CORPUS
    A fugitive from a foreign country cannot be arrested in Pennsylvania by a magistrate on a charge by a private person, of having committed murder in such foreign country, in order to afford an opportunity to the executive of the United States to deliver him up to the government of that country.
    Query whether-the executive of the United States or of Pennsylvania has a right to apply to a magistrate to arresta fugitive criminal for such purpose?
    This case was very fully argued by Keating and P. Jt. Browne, for Short, and C. S. Coxe and C. J. Ingersoll, for the defendant.
   Tilghman, C. J.

It appears by the return to the habeas corpus in this case,- that Edward Short is detained, by virtue of a warrant of commitment issued by Joshua Raybold, a justice of the peace, founded on the oath of John Wallace, by which Short is charged with the murder of James Trimble, in the county of Tyrone, in Ireland, and afterwards flying from justice.- The murder is alleged to have been committed on or about the 26th July, 1821. John Wallace and other witnesses have been examined before me, and the cause has been well argued by counsel both for and against the prosecution. Two questions are to be considered. 1. Whether the evidence is such, as would warrant a commitment for trial for murder, if the offence had been committed in Pennsylvania. 2. Supposing the evidence sufficient, whether the warrant of commitment Was legal.

1. I am by no means satisfied with the evidence. It proves, that about the 26th July, 1S21, there was an affray at the town of Clog-her, in the county of Tyrone, in Ireland, in which James Tremble received one or more blows on the head, by which his skull was fractured, and in consequence of which he died in a short time. An inquest was held on his body, but no copy of it having been produced, we are ignorant of the finding of the jury. A reward was offered by private persons, for the apprehension of Short, who fled and could not be taken. . Since his arrival in this country, he has confessed, that he was in the affray, but denied that he was guilty of murder. Now supposing that a homicide of some kind was committed, we are quite ignorant of its nature. And I think it might have been expected, that a copy of the coroner’s inquest should have been produced. I certainly should have called for it, had the offence been committed in Pennsylvania. On the whole then, I should have inclined against the commitment for murder, had the case rested solely on the evidence. But a much more important question remains. Ought the prisoner to have been committed, even if the evidence had been sufficient? He was arrested at the request of a private person, without the interference either of the British government, or that of the United States. It is a question in which the peace of many persons is deeply concerned; persons who have fled from Europe, and sought an asylum in this country, where they thought themselves sure of protection.

The counsel for the prosecution have rested their case upon the law of nations, by which, as they contend, the government within whose territory any offence has been committed, has an absolute and perfect right to demand the person of the criminal, to' be delivered up, by the government in whose dominions he shall be found. In support of this proposition, they rely on the opinion of respectable authors, the practice of nations, and judicial decisions. It is proper therefore, that each of these grounds should be examined.

Grotius is of opinion, that when a criminal has fled from justice, the government to which he flies, is bound either to punish him according to his crime, or force him to leave the country, or deliver him up. This he lays down in broad terms, without distinction as to the magnitude of the crime. Yet he confesses, that for some ages past, the right of demanding fugitive delinquents, has not been insisted on, in most parts of Europe, “ except in crimes against the state, or those of a very heinous nature. As for lesser faults they are connived at, on both sides, unless it is otherwise agreed on by some particular treaty.” Grot. Book 2, ch. 20,sect. 3,4, 5, 6. Burlamaqui, follows the opinion of Grotius, verbatim. He adds however, that Puffendorff is of different sentiments, ££ who pretends, that if we are obliged to deliver up a criminal, who takes shelter among us, it is rather in virtue of some treaty, than in consequence of a common and indispensable obligation.” 2 Bur. part 4, sect. 23, 24, 25, 26, 27, 28. The opinion of Grotius, is adopted also by Ileineccius, in his prselect in Grot. Vattel seems to have directed his attention principally to the case of sovereigns whose subjects have committed crimes within the dominions of others. And he is of opinion, that the offenders should either be punished at home, or delivered up. He does say however, in general, “ that the practice of delivering up, is pretty generally .observed, with respect to great crimes, which are equally contrary to the laws and safety of all nations,” and that “ assassins, incendiaries, and robbers, are seized every where, at the desire of the sovereign in whose territories the crimes was committed, and delivered up to justice. Vatt. Book 2, Ch 6. sect. 71 to 77. These are the opinions in support of the absolute suá positive duty to deliver up the offender, upon the demand of the sovereign in whose territory the crime was committed. But we shall find, that it is a point on which all nations have not agreed. There are great names on both sides. We have seen that Puffendorff, as quoted by Burlamaqui, founds the right of demanding a delivery of the offender, on treaty. Martens is of opinion, that a sovereign may punish foreigners, whether they commit a crime in his dominions, or fly to them, having committed a crime in the dominions of another; “ but in neither case is he perfectly obliged to send them for punishment to their own country, nor to the place where the crime was committed, mot even supposing them to have "been condemned before their escape.” He adds, however, that the general good seems to require, that those who attack im- ■ mediately the safety of the state, should not go unpunished; and accordingly, in case of requisition, no sovereign refuses directly, to take cognizance of such a crime.” Martens Book 2, ch. 3, sect. 22, pa. 107, Philadelphia Ed. Lord Coke in his 3 Inst. pa. 180, is strong and positive against delivering up. “ It is holden, (says he,) and so it hath been rendered, that divided kingdoms under several kings, in league one with another, are sanctuaries fpr servants, or subjects, flying for safety from one kingdom to another, and upon demand made by them, are not, by the laws ami liberties of kingdoms, to be delivered; and this, (some hold,) is grounded upon tbe law in Deuteronomy, non trades set'vuni domino suo, qui ad te confugerit. ” Coke cites no case in which the point, had been adjudged, but he mentions three memorable instances which show the opinions and practice of the sovereigns of that day. Queen Elizabeth, in the. 34th year of her reign, demanded of the French King, (the great Henry 4th,) Morgan, and others, of her subjects, who had committed treason against her. The answer of the King was, that'if these persons had machinated any thing against the Queen, in France, he could lawfully proceed against them; but, if the offence was committed in England, he had no right to take cognizance of it. That all kingdoms were free to fugitives, and it was the duty of Kings, to defend, every one the liberties of his own kingdom, and tbat Elizabeth herself, had, not long before, received into her kingdom, Montgomery, the Prince of Conde, and other Frenchmen, &c. &c.” And so, says Lord Coke, the matter rested. The second instance, was the demand made by Henry 8th of England, of the King of France, to deliver up to him the Cardinal Pool, being his subject and attainted of treason. This demand was not complied with, though it must have been well considered, since Henry had a treatise written in support of his claim. The third was the case of the Earl of Suffolk, attainted of high treason by parliament, and demanded by Henry 7th of England, of Ferdinand, King of Spain. Ferdinand refused to deliver him, but was afterwards induced to do so, in consequence of the promise of Henry, not to put the Earl of Suffolk to death. This promise was basely violated by- Henry, who affecting to consider it as only personal, commanded his son Henry 8th, to execute the Earl after his decease, who as basely carried this command into effect in the 5th year of his reign. These are the cases mentioned by Lord Coke, to which he might have added that of Perkin Warbeck, an impostor, who contended with Henry the 7th for the throne of England, and having fled lo Scotland, was protected by the King of that country, against Henry, who deznanded him. In opposition to the opinion of Lord Coke, has been cited a treatise by Mr. Wynne, entitled “ Eunomus,” Dialogue 3, sect. 67, page 317. In this treatise, the author makes very free with the judge’s opinion, he remarks, that Coke says, it is holden, and so it hath been resolved,” but neither tells us when nor where it was resolved, and that bis examples from history are far from proving the point. Although Lord Coke was as great a common lawyer as England ever produced, yet certainly he was not equally profound in his knowledge of equity, or of the law of nations. Perhaps, indeed, his attachment to the common law, gave him a prejudice against all others. Yet, when he says, a matter has been resolved, I should think he might be relied on; for he certainly was not apt to speak without book. It may be remarked, by the by, that Mr. Wynne does not seem to have been in all respects master of the law of nations. For, in his argument against Lord Coke’s opinion, we find the following passage: If a criminal flies from his own to another state, for refuge, his own cannot seize him there, by violence. The case, in this respect, is much the same, though stronger than that of pursuing an enemy’s ship, under the protection of a neutral port. In both cases you are to apply to the justice of the country, if that is refused, you may resort to war, at your optionThis would be reckoned strange doctrine, at tbe present day. The Marquis of Beccaria gives no direct opinion as to the right of a sovereign to demand the delivery of a fugitive, but from the whole scope and spirit of his thoughts it is plainly to be seen that he was against it, Beccaria, ch. 35, pa. 134, Ward, in his treatise on the law of nations seems to rest the matter on treaties or conventions.

I will now take notice of what may be called adjudged oases, and they are but few. Col. Lundy’s Case, in the 1st year of William & Mary, is in 2 Vent, 314. Col. Bundy committed a capital offence in Ireland, and fled to Scotland, where he waa arrested and sept to England. The judges were consulted, and all agreed, that he mighj; be sent to Ireland for trial. The King v. Kimberley, is reported in 2 Sir. 848, l Barnard. K. B. 225, and Fitzg. 111. Kimberley committed a capital felony in Ireland, and having fled to England, was arrested on a warrant of a justice of the peace, and an a. habeas corpus, the Court of King’s Bench refused to bail him. He was sent to Ireland by virtue of a warrant from the secretaiy of state. In the case of the East India Company v. Campbell, 6 Vez. 246, it was said by the Court of Exchequer, that one may be sent from England to Calcutta, to be tried for an offence committed there. The principle of these cases is plain,"and undeniable. The territories where the crime was committed, and to which the criminal fled, were parts of the same empire, and under one common sovereign. The King of England could have no privilege against the King of Ireland; being one and the same person. Calcutta is part of the British empire. The common good of the whole, forbids an asylum, in one part, for crimes committed in another. So, prior to the American revolution, a criminal who fled fyom one colony, found no protection in another. He was arrested wherever found, and sent for trial to the place where the of-fence was committed. On this principal the Court, of Cassation, in Paris, decided O‘Done’s Case, in the year ISOS. 2 Hall’s Law' Journ. 112. O'Done was convicted of robbery in Genoa, and sentenced to seven years labour in irons, while Genoa was an independent government. He fled to France, enlisted in the army, and there did meritorious service. Afterwards, Genoa became united to the French empire, and it was made a question whether O'Done was entitled to protection in France. It was held that he was not, that the right of asylum was founded, not on the privilege, of the fugitive, but of the sovereign to whom he fled, and therefore ceased on the union of Genoa with France. But there are two other judicial cases in England, in winch it is supposed, that the right of demanding a fugitive from a foreign country, is recognised as the law of nations. The case of the King v. Hutchinson, is very shortly reported in 3 Keble, 785, 29th year of Charles 2d. The following is. the whole of the report. “ On a habeas corpus, it appeared, that the defendant was committed to New Gate,- on suspicion of murder in Portugal, which, by Mr. Jlttorny, being a fact out of the King’s dominions, is not triable by commission upon 35 Hen. 8. ch. 2, sect. 1, but by a constable and marshal; and tb& court refused to bail him. Now there is nothing here, like an intent to send the man to Portugal. But Sergeant Corbet, speaking of this case in the King V. Kimberly, cited before, said that Hutchinson was sent to Portugal for trial. What was his authority for this assertion we know not; so that the matter is at least doubtful. But the authority most relied on, is the dictum of Justice Heath, in Mure v. Kay, 4 Taunton, 34, 43, on which Chitty forms his opinion in his treatise on criminal law, 1 Chitty, 16. The Court of Common Pleas gave no opinion on the point in question, in Mure v. Kay, but Heath, J. said, it has generally been understood, that by the comity of nations, the country in which a criminal has been found, has aided the police of the country against whom the crime was committed-, in bringing the criminal to punishment. In Lord Loughborough’s- time, the crew of a Dutch ship mastered the vessel and brought, her into Deal; and it was a question, whether we could seize them, and send them to Holland. And it was held that we might, and the«same has been the law of all civilized nations.”

Having now gone through all the European opinions, and authorities, I will make a few observations on them, before I consider what is far more important, the opinions and authorities in our own country.

That no crime should go unpunished, and that the govérnment which protects a fugitive from justice, becomes the abettor and in some measure the partner of his crime, is a beautiful thing, but attended in practice with many difficulties. If all nations had the same idea of crimes, and of punishments, and if all were equally upright and impartial in the administration of justice, there could be no cause of complaint, if the accused were always sent for trial to the place of his offence, indeed that would be the most proper place, because in general, there the evidence is to be sought. But it is not so. What some consider $s a slight offence, is by others deemed worthy of death. In some, an impartial trial may be expected. In othérs, trial is but a cruel mockery. For these and other reasons, the theory of Grotius has not been adhered to, in practice. He says himself, that for ages, it has- not been the custom to demand the delivery of a fugitive, except in case of crimes against the state, and other heinous offences. And all who haye adopted his opinion, mention crmies against the state, as peculiarly those in which an offender should find no protection. Now it must be confessed, that in a mild, paternal government, treason is the greatest of crimes. But when government becomes oppressive, the best citizens, with the best intentions, may be implicated in treason; and therefore it is, that the very crime which Gro-Hus denounces as that which should be cut off from all asylum, is precisely the one, to which, at the present day, an asylum is always granted by liberal and enlightened nations.

There are at this moment, both in England and America, fugitives from France, Spain, Portugal, Savoy and Naples, all guilty of treason by the law of their respective countries; yet all living in undisturbed quiet, all trusting with undoubting confidence to the protection of the government to which they have fled. To say nothing of ourselves, would England give one of these people up ? Or rather, would it not be deemed almost an insult, to demand a delivery ? The most heinous crime, next to treason, is murder. Yet there, the degrees of guilt are so widely different, that the nature of each case should be well considered, before a fugitive is given up. Murder in a duel, is undoubtedly a great crime; but is it such, in the general estimation of nations, as would preclude the guilty fugitive from protection ? The same remark is applicable to murder in a tumult, where political and party dissensions run high. Such unfortunate cases partake much of the nature of civil war, and cannot be compared to murder of an individual for the bare purpose of robbing. In short, a crime can scarcely be conceived, in which the degrees of guilt are not so various, that the sovereign on whom a demand is made, ought to exercise his own judgment, and determine, according to the circumstances df the case, whether or not the fugitive should be surrendered. He has a right to consider also, whether the offence be such as falls within Grotius’s' rule of heinous. This is a matter on which there may he great difference of opinion. Nations, not much engaged in commerce, may not think forgery an offence deserving death. Not so the English. It is what the)7 never pardon. They pursue it with unrelenting severity. In their treaty with the United States, murder and forgery, were the only crimes, in which a delivery of fugitives was stipulated. In their treaty with France, (at Amiens,) fraudulent bankruptcy was added to murder and forgery. Now, though England may be excusable for proscribing an offence which touches her vital interests, can it be said, that another government, differently circumstanced, and wishing to act fairly, and conscientiously, towards all mankind, might not refuse to give up a forger, or fraudulent bankrupt, to certain death ? The more deeply the subject is considered, the more sensibly shall we feel its difficulties; so that upon the whole,.the safest principle seems to be, that no state' has an absolute and perfect right, to demand of another, the delivery of a fugitive •criminal, though it has what is called an imperfect right, that is, a right to ask it, as-a matter of curtesy, good will, and mutual convenience. But a refusal to grant such request, is no just cause of war. No nation has a right to ask the delivery of a fugitive, for the purpose of wreaking its vengeance on him.- All that can be said, is, that unless he be given up, otherá may be encouraged to transgress, by a hope of escaping punishment by flight, and then an injury may be sustained. And, indeed, in case of neighbouring, nations, the ar“gument is so strong, as to be almost irresistible, except in cases attended with particular circumstances. It will probably be found, therefore,' that between neighbours, this matter has generally been put on some convenient footing, .either by convention or long usage. But, the more remote two nations are from each other, and the more difficult the passage from one to the other, the less forcible will be the reason for the demand, and the more doubtful the duty of delivery. It is manifest, that between nations separated by the Atlantic Ocean, the inconveniencies arising from an asylum to fugitives will be much less than between those who inhabit the same continent. It will not be matter of wonder, therefore, - if between the European and transatlantic nations, a different practice on this delicate .subject should prevail, from that which may be found necessary among the European nations themselves. Let us see then, what has been the practice, so far as concerns the United States of America. We are now in the 48th year of our independence, and yet it is not known, that in any one instance, a fugitive from Europe has been surrendered, except Jonathan Robbins, whose case turned upon our treaty with Great Britain. And it is worthy of remark, that in the celebrated speech of Chief Justice Marshall, on the floor of the House of Representatives, in defence of the conduct of President Adams, át whose request Robbins was delivered up by Judge Bee to the British government, there is not a suggestion, or intimation, that the President possessed any power independently of the treaty. Indeed, I know of but two instances where a demand, except under the treaty, has been made, and in both, the delivery was refused. One was the case of the Chevalier de Longchamps, a subject of the king of France, who, in the year 1784, was demanded of the executive council of the state of Pennsylvania, by the French minister, to be sent to France, and there tried, and punished, for an insult offered in the city of Philadelphia, to Mr. De Marbois, Secretary of Legation to the French Embassy, and Consul General of France. The Council consulted the Judges of the Supreme Court, and by their advise, refused to deliver De Longchamps, who was punished, however, on an indictment in Philadelphia, for breach of the law of nations. 1 Dall. 111. This was before the existence of the present federal constitution. But the other case which I am about to mention, was since the adoption of this constitution. In the year 1793, Mr., Gened, Minister of the French Republic, requested of Mr. Jefferson, Secretary of StaJe, a warrant for the arrest of several persons, citizens of France', who had escaped from the French ship of war Jupiter, after committing crimes against the Republic. The answer of Mr. Jefferson in the following words, will be found, in the 1st Vol. of American Slate Papers, pa. 175. The laws of this country take no notice of crimes committed out of their jurisdiction. The most atrocious offender, coming within their pale, is received by them as an innocent man, and they have authorized no one to seize or deliver him. The evil of protecting malefactors of every dye, is sensibly felt here, as in other countries; but until a reformation of the criminal codes of most nations, to deliver fugitives from them, would be, to become their accomplices. The former is viewed, therefore, as the lesser evil. When the consular .convention with France Was under consideration, this subject was attended to; but we would agree to go no further than is done in the '9th article of that instrument, where we agree mutually to deliver up, captains, officers, marines, sailors, and all other persons being part of the crew of vessels, &c. Unless, therefore, the persons before named, be part of the crew of some vessel of the French nation, no person in this country is authorized to deliver them'up, but on the are under the of the laws.*5

.In the conclusion of Mr. Jefferson’s letter, he says, “I have not yet laid this matter before the President, who is absent from the ■seat of government, but to save delay, which might be injurious, I have taken the liberty, as the Case is plain, to give you this provisory answer. I shall immediately communicate it to the President, and if he shall direct any thing in addition, or alteration, it shall be the subject of another letter. In the meantime, I may venture to let this be considered as a ground for your proceeding.” When this answer was given, Gen. Washington was President of the United States, and Gen. Flamilton Secretary of the Treasury. It was at the time of a memorable crisis, when our government took its stand upon neutral ground, and it was necessary to reflect maturely on our duties towards foreign nations. And I believe that no government ever considered' that important subject with more candour, or formed its resolutions with more integrity, good faith, and sound judgment, than did our’s on that occasion. It may be presumed, that no Change has taken place in the sentiments of the executive, with respect to the delivering up of fugitives from Murope, because in the instructions from Mr. Monroe, Secretary of State, to our Plenipotentiaries, charged with negotiating a peace with Great Britain, (which terminated in the treaty of Ghent,) is the following passage: “offenders, even conspirators, cannot be pursued by one power, into the territory of another, not-are they delivered up by the latter, except in compliance with treaties,or by favour.” Mr. Madison was President, at the date of these instructions; so that we have the opinion of every President, since the formation of the government, except Mr. Jtdams, and it is not known, or believed, that he even dissented. But, it is necessary that I should now advert, to a decision of the late Chancellor of New-York, much, and deservedly relied on by the counsel for the prosecution. It is the case of Daniel Washburn, 4 Johns. Ch. Rep. 106, who was brought before the Chancellor on a habeas corpus, and charged with a larceny of bank notes in upper Canada. He was discharged for wont of sufficient evidence, but the Chancellor was of opinion, that if the evidence had been sufficient, the prisoner might have been committed, “ to the end, that a reasonable time might be afforded for the govermhent here to deliver him up, or for the foreign government to make the requisite application to the proper authorities here, for his surrender.” But, who were the proper authorities, whether the executive of the state of New-York, or of the United States, the Chancellor thought it not necessary to discuss. I am sensible of the weight of an opinion delivered by Chancellor Kent, for whose character, both as a private citizen, and an eminent Judge, I entertain the very highest respect. No doubt he was strongly impressed with the convenience of that comity between New-York and Canada, which is the basis of the practice of the nations of Europe, and the very great inconvenience which would result from the want of it. Whether the state of New-York, has tacitly consented to a mutual delivering up of criminals by her officers and those of Canada, I know not, nor is it my business to decide, whether she has a right to enter into such an arrangement. But if the principles laid down in Washburn’s case, are to be applied to persons who fly from Europe, and take shelter in the United States, I cannot assent to them. The American government has never recognized the principle of delivering up fugitives, except when bound by treaty. By our consular convention with France, we agreed to give up seamen, &c. who deserted from French vessels, and by our treaty with England, (Jay’s treaty,) we agreed to give up persons charged with murder or forgery Both these treaties have expired, and in our subsequent treaties with England, the article respecting delivering up. has been omitted. I do not consider the treat3r with England as merely declaratory, and, of course, I cannot agree, that on the expiration of that treaty, we were open to a demand of all-fugitives from the British dominions, whatever might be their crimes. On the contrary, I suppose that the treaty was intended to give to each nation a right that did not before exist, and that on its expiration, that right ceased, on both sides. That such was the understanding of our government, it is impossible to doubt, when it is considered that this treaty was made about a year after Mr. Jefferson’s letter to Mr. Genet. The Jtmerican government has never demanded the delivery of any criminal who has fled from the United States to a foreign country. We all remember the case of Bradford, the leader of the insurrection in this state, in 1793, who fled to the Spanish Territory, and remained there in security. It is certain that this matter of delivering up, is an affair of state, in which the judges and inferior magistrates cannot act, hut as auxiliary to the executive power. The demand of the foreign court is addressed to none but the executive, and no othca- power than the executive has a right to corn-ply with that demand. I grant, that when the executive has been in the habit of delivering up fugitives, or is obliged by treaty, the magistrates may issue warrants of arrest, of their own accord, (on proper evidence,) in order the more effectually to accomplish the intent of the government, by preventing the escape of the criminal. On this principle, we arrest offenders,, who have fled from one of the United States to another, even before a demand has been made by the executive of the state from which they fled. But what right is there to arrest, in cases where the government has declared that it will not deliver up? For what purpose is such an arrest ? Can any judgment be given, by which the executive can be compelled to surrender a fugitive ? Most certainly not. If the President of the United States should cause a person to be imprisoned for the purpose of delivering him to a foreign power, the Judges might issue a habeas corpus, and inquire into the legality of the proceeding. But they have no authority whatever, to make such delivery themselves, or to command the executive to make it. If these principles be just,, it follows, that under existing.circumstances, no magistrate in Pennsylvania has a right to cause a person to be arrested, in order to afford an opportunity to the President of the United States to deliver him to a foreign government. But what if the executive should hereafter be of opinion, in the case of some enormous offender, that it had a right, and was bound in duty to surrender him, and should make application to a magistrate for a warrant of arrest? That would be a case quite different from the one before me, and I should think it imprudent, at the present moment, to give an opinion on it. Every nation has an undoubted right, to surrender fugitives from other states; No man has a right to say, I will force myself into your territory, and you shall protect me. In the case supposed, the question would be, whether under the existing constitution and laws, the President has a right to act for the nation, or whether he must wait, until congress think proper to legislate on the subject. The opinion of the executive hitherto has been, that it has no power to act. Should it ever depart from that opinion, it will be for the judges to decide on the case as it shall then stand. Neither do I give any opinion, whether the executive of the state 'of Pennsylvania has power to cause a fugitive criminal to be arrested, for the purpose of delivering him up. But confining myself to the case before me, in which the arrest was made, at tlje request of a private person, I am of opinion, that there is no law to support it,, and therefore, the prisoner is entitled to his discharge.

Prisoner discharged.

IN THE SUPREME COURT OF PENNSYLVANIA, ÍWNBURY DXSTRIC1WUNE TERM, 1833.  