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the specified crimes has been committed, and the extradition of the person who has committed it is demanded, it is sufficient if such crime is subject to infamous punishment in the country where it was committed, without its being necessary that it should also be subject to infamous punishment in the country from which the extradition of such person is demanded. In re Farez, 7 Blatch., 345.
$ 327. November 25, 1850.— The treaty of November 25, 1850, between the United States and Switzerland (10 Stat. at L., 587), provided that “in case real estate situated within the territories of one of the contracting parties should fall to a citizen of the other party he shall be at liberty at all times to withdraw and export the proceeds thereof without difficulty and without payment to the government of any other charges than those which, in a similar case, would be paid by an inhabitant of the country in which the real estate may be situated.” Held, that the above provision entitled A., next of kin to B., who died intestate and without issue in Virginia, both A. and B. being citizens of Switzerland, to recover and sell the lands belonging to B.'s estate, and withdraw and export the proceeds thereof, such lands having been sold by the escheator of that district. Hauenstein v. Lynham, 10 Otto, 483.
§ 328. The first and third clauses of article 5 of the treaty of 1850 between the United States and Switzerland provide as follows, viz.: The citizens of each one of the contracting parties shall have power to dispose of their personal property within the jurisdiction of the other, by sale, testament, donation or in any other manner; and their heirs, whether by testament or ab intestate, or their successors, being citizens of the other party, shall succeed to the said property or inherit it, and they may take possession thereof, either by themselves or by others acting for them; they may dispose of the same as they may think proper, paying no other charges than those to which the inhabitants of the country wherein the said property is situated shall be liable to pay in a similar case. The foregoing provisions shall be applicable to real estate situated within the states of the American Union, or within the cantons of the Swiss confederation in which foreigners are entitled to bold or inherit real estate.” Held, that, under the above provisions, citizens of Switzerland could inherit of citizens of the United States the same as citizens of the United States. Jost v. Jost, * 1 Mackey, 487.
$ 329. November 25, 1860.- When by the laws of Switzerland a private citizen may maintain an action against the confederation in its federal tribunal, if the object of the litigation is of the value of at least three thousand france, and when by treaty of November 25, 1860 (11 Stat. at L., 587), citizens of the United States shall be at liberty to prosecute and defend their rights before courts of justice in the same manner as native citizens,” the government of Switzerland will be deemed to “accord to citizens of the United States the right to prosecute claims against such government in its courts" within the meaning of the act of July 27, 1868, chapter 276, section 2 (15 Stat. at L., 243). Hence a citizen of Switzerland may maintain an action for the proceeds of captured property in the court of claims. Lobsiger v. United States, * 5 Ct. Cl., 687.
$ 330. Turkey.— The provisions of the eighteenth section of the act of August 11, 1848, to carry into effect certain provisions in the treaties between the United States and China and the Ottoman Porte, do not apply to Turkey. Act of 1848 and Treaty with the Ottoman Porte,* 5 Op. Atty Gen'), 67.
$ 331. Whether the above act embraces Egypt and the Barbary states, which are under the dominion of the Ottoman Porte, is a political question, which cannot be solved without the aid of the department of state. Ibid.
$ 332. The act of August 11, 1848, to carry into effect certain provisions in the treaties between the United States and China and the Ottoman Porte, giving certain judicial powers to ministers and consuls of the United States in those countries, not having designated any particular place for the confinement of prisoners arrested for crime, the same is left for regulation under the fifth section, or, in the absence of any such regulation, to the discretion of the acting functionary. Ibid. $ 333.
May 7, 1830.— The treaty of May 7, 1930, between the United States and the Ottoman Porte provides that, “if litigations and disputes arise between the subjects of the Sublime Porte and citizens of the United States, the parties shall not be heard, nor shall judgment be pronounced, unless the American dragoman be present. Causes in which the sum may exceed five hundred piastres shall be submitted to the Sublime Porte, to be decided according to the laws of equity and justice. Citizens of the United States of America, quietly pursuing their commerce, and not being charged or convicted of any crime or offense, shall not be molested; and even when they may have committed some offense they shall not be arrested or put in prison by the local authorities, but they shall be tried by their minister or consul, and punished according to their offense, following in this respect the usage observed
towards other Frankis." “Commerce" in the above article means any subject or object of residence or intercourse whatever; and as to all civil affairs to which no subject of Turkey is a party, Americans are wholly exempt from the local jurisdiction, and in civil matters, as well as criminal, Americans in Turkey are entitled to the benefit of “ the usage observed towards other Franks." Americans in Turkey, * 7 Op. Att'y Gen'l, 565.
$ 334. Under the above treaty, citizens of the United States, in common with all other foreign christians, enjoy the privilege of exterritoriality in Turkey, including Egypt, the same in the Turkish regencies of Tripoli and Tunis, and also in the independent Arabic states of Moroco and Muscat. Ibid.
$ 335. The treaties of 1830 and 1862 with Turkey place our government on a footing with the most favored nations, giving the same rights and privileges to our people in that country that are conceded by the Sublime Porte to the subjects of other christian states, and among the rights thus secured is that of establishing consular courts with jurisdiction to hear and determine all classes of cases between American citizens to the exclusion of the local jurisdiction. Dainese v. Hale, * 1 MacArth., 86.
$ 336. 1862.- The treaty between the United States and Turkey made in 1862, which provided that “all rights, privileges or immunities which the Sublime Porte now grants, or may hereafter grant to or suffer to be enjoyed by, the subjects, ships, commerce or navigation of any foreign power, shall be equally granted to and exercised and enjoyed by the citizens, vessels, commerce and navigation of the United States of America,” guaranties to citizens the same right to have their civil controversies decided by their own minister and consuls as that enjoyed by subjects of other christian nations in Turkey. Dainese v. Hale, 1 Otto, 13; 8 Ch. Leg. N., 97.
$ 337. United States of Colombia.— The sixth article of the treaty with the republic of Colombia provides that “whenever the citizens of either of the contracting parties shall te forced to seek refuge in the rivers, bays, etc., of the other with their vessels, whether merchant or of war, public or private, through stress of weather, pursuit of pirates or enemies, they shall be received and treated with humavity, giving to them all favor and protection for repairing their ships, procuring provisions and placing themselves in a situation to continue their voyage without obstacle or hindrance of any kind," and further, that “nothing in this treaty contained shall be construed or operate contrary to former and existing public treaties with other sovereigns.” Under this treaty Colombian vessels are entitled to make repairs in our ports when forced into them by stress of weather, but they cannot enlist recruits there, either from among our citizens or foreigners, except such as may be transiently within the United States. Rights of Colombian Vessels, * 2 Op. Att'y Gen'l, 4. $ 338.
February 10, 1864.- In the convention of February 10, 1864, it is recited that “whereas the joint coinmission organized under the authority conferred by the first-named convention " (of September, 1857) “did fail ... to decide all the claims laid before them under its provisions within the time to which their proceedings were limited, .. the time originally fixed for the duration of the commission should be so extended as to admit of the examination and adjustment of such claims as were presented to but not settled by the joint commission aforesaid.” Held, that the new commission organized under the convention of 1864 bad power to decide all claims properly presented to the former commission which had been left undecided, and hence could determine what claims had and what claims had not been decided by such former commission. Convention with United States of Colombia, * 11 Op. Att’y Gen'l, 402.
$ 339. Wurtemburg.— The treaty with Wurtemburg, providing that “citizens or subjects of each of the contracting parties shall have power to dispose of their personal property within the states of the other, by testament, donation, or otherwise, and their heirs, legatees and donees, being citizens or subjects of the other contracting party, shall succeed to their said personal property, and may take possession thereof, and dispose of the same at their pleasure, paying such duties as the inhabitants of the country where the property lies shall be liable to pay in like cases," does not regulate the testamentary dispositions of citizens or subjects of the contracting powers in reference to property within the country of their origin or citizenship; and hence has no application to the case of a former citizen of Wurtemburg dying in Louisiana, who before his death bad become a naturalized citizen of the United States. Frederickson v. The State of Louisiana, * 23 How., 445.
TRESPASS TO TRY TITLE.
TRIAL BY COURT.
TRIAL BY JURY.
TRUSTS AND TRUSTEES.
See USES AND TRUSTS.
See MARITIME LAW.
TWICE IN JEOPARDY.
See CONTRACTS; CONVEYANCES; EQUITY.
$ 1. Powers, generally.- A United States commissioner is inade a magistrate of the government, exercising functions of the highest importance. He is an examining magistrate, bound to hear all complaints of the commission of any public offense against the laws of the United States in his district, to cause the offender to be arrested, to examine into the matters charged, to summon witnesses for the government and for the accused, and to commit for trial or to discharge from arrest according as the evidence tends or fails to support the accusation. For the faithful discharge of his duty in these particulars he alone is accountable. He has no divided responsibility with any other officer of the government; nor is he subject to any other's control. United States v. Schumann, 2 Abb., 523; 7 Saw., 439.
S 2. The thirtieth section of the judiciary act of 1789, chapter 20, gives a commissioner of the circuit court no power to issue a writ of habeas corpus to take from jail a person committed by authority of the United States, and bring him before the commissioner for the purpose of giving his deposition before such commissioner, to be used in a cause pending in the district court. Ex parte Barnes, 1 Spr., 133.
$ 3. Commissioners can only exercise powers expressly conferred, and for that reason have no power to issue writs of attachment returnable to circuit courts of the United States. Chittenden v. Darden, 2 Woods, 437.
& 4. United States commissioners are officers of the court. In all that they do they are not separate and independent tribunals, but the arms of the court to execute the preliminary work of securing the presence of offenders at the time appointed for arraignment and trial. They have no judicial power to hear and determine any matter whatsoever. Their duties as examining magistrates are ministerial and not judicial, and for that reason a writ of prohibition to control the conduct of a commissioner cannot be issued. United States v. Berry, 2 McC., 58; 26 Int. Rev. Rec., 405.
$ 5. Under sections 914, 990, Revised Statutes United States, a commissioner of the United States may, acting under the state law, take verifications of all necessary papers to procure the arrest of defendants on mesne process. Fulton v. Gilmore, 2 Flip., 260.
$ 6. United States commissioners are not conservators of the peace, and have no control of police regulations in their districts, except where express powers are conferred by a statute of the United States. Their powers and duties in criminal matters are not therefore as extensive as those of justices of the peace, but are confined to those which they must necessarily exercise as examining and committing magistrates in enforcing the criminal laws of the United States, and within this limit of jurisdiction they must conform, as near as may be, to the forms and modes of procedure required by law of justices of the peace. They are not prosecuting officers, but exercise important judicial functions in passing upon questions involving the rights of the government and the liberty of the citizen. United States v. Harden, 10 Fed. R., 802; 4 Hughes, 455,
$ 7. A commissioner empowered to issue a warrant under the statute of the United States of September 18, 1850 (9 Stat. at L., 462), must be such a commissioner as is particularly described in that act, and consequently an averment in an indictment for resisting such a war. rant, that it was issued by a commissioner of the circuit court of the United States, is not sufficient, United States v. Stowell, 2 Curt., 153.
$ 8. Taking bail, committing, etc.— A United States commissioner, as respects the taking of bail, has the same power as a state magistrate, and no greater. Hence, where the state statute provided that a magistrate might adjourn an examination of a prisoner for a period not exceeding ten days at one time, and a commissioner, at the request of the prisoner, adjourned the examination for nineteen days, and took bail for his appearance at that time, and
the bail was forfeited, held, on suit against the sureties, that the commissioner's order for the appearance of the accused after such an interval was contrary to law, and the recognizance in valid, and that the consent of the accused could not confer jurisdiction or power to make the order. United States v. Horton,* 18 Int. Rev. Rec., 31; id., 63.
$ 9. A recognizance taken by a commissioner of the circuit court, conditioned for the appearance of the principal “ to answer the charge of a wilful and corrupt conspiracy to burn the steamboat Martha Washington on the Mississippi river," is void as not describing an offense made punishable by any act of congress, and cognizable by the circuit court. United States v. Stratton, 6 McL., 274.
§ 10. The authority of a commissioner in arresting, holding to bail, or committing to jail, is expressly limited to complaints or charges importing an offense against the laws of the United States. Ibid.
$ 11. Up to the time of the issuing of a removal warrant the commissioner under whose commitment the prisoner is held has jurisdiction to entertain an application for his release on bail, and, by necessary consequence, jurisdiction to administer an oath to one tendering himself for justification as bail for such prisoner. United States v. Volz, 14 Blatch., 15.
$ 12. A United States commissioner has no power to commit a defendant to prison, or take him out of prison, without issuing a written mittimus for that purpose. United States v. Harden, 4 Hughes, 455; 10 Fed. R., 802.
$ 13. By the act of August 23, 1842, a United States commissioner appointed to take affidavits, etc., bas power to let to bail one brought before him on a criminal complaint, pending the proceedings, in those states where justices of the peace have a similar power, and a recognizance to appear before him to have the proceedings completed is valid. United States v. Rundlett, 2 Curt., 41.
$ 14. The powers of a United States commissioner in the matter of taking bail are the same as those of a justice of the peace in the state where the proceedings were had. United States v. Horton, 2 Dill., 94.
$ 15. United States commissioners have power to commit defendants to county jails where there is a state statute permitting the commitment of prisoners by the authority of the United States. United States v. Harden, 10 Fed. R., 802; 4 Hughes, 455.
$ 16. Review or reversal of decision.— The court has no authority by way of habeas corpus to reverse the decision of a commissioner for error or irregularity, nor to determine the credit or weight of the evidence on which he acted. In re Kaine,* 10 N. Y. Leg. Obs., 257.
$ 17. A commissioner acting under the act of September 18, 1850, is in no legal sense a magistrate inferior to the circuit court, and the court in appointing the commissioners under the act acquires no supervisory authority over the proceedings of such commissioners, who are not even officers of the court. In re Van Orden, * 12 N. Y. Leg. Obs., 161.
$ 18. A commissioner appointed by a circuit court under the fugitive slave act of September 18, 1859 (9 Stat. at L., 462), is not a judicial officer of inferior jurisdiction in such a sense that the court can issue a writ of certiorari to such commissioner to call before it and rectify any error in his proceedings under that act. Ex parte Van Orden, 3 Blatch., 166.
& 19. The commissioner's report of damages in an admiralty case, when parties have been fully heard before him with their proofs, and no question of law is involved in his decision, will be adopted by the court, unless palpable errors or inadvertencies have been committed by bim. The Steamboat Narragansett, Olc., 388.
$ 20. The orders of a commissioner in discharging or committing a party brought before him are not in the nature of a final judgment of a court of record, but are subject to the revision of the court. In re Martin, 5 Blatch., 303.
$ 21. On preliminary examinations of persons charged with having committed offenses against the United States, the commissioner has only the authority of a committing magistrate, and his proceeding must be “agreeably to the usual mode of process against offenses” in the state where the examination is had. And if by such state practice a committing magistrate has no authority to find a fact, but only to determine whether there is probable cause to put the defendant on trial, this must be the extent of the commissioner's power; and he has no power to determine the probable or improbable credibility of the testimony of the prosecution from extrinsic evidence. United States v. Walker,* 6 Pittsb. L. J., 37.
$ 22. Where a party charged with a criminal offense against the United States is brought before a commissioner for examination, such commissioner should proceed without unreasonable delay to the investigation of the matter charged. He has no authority to take bail for the appearance of the accused for examination before him at a future day unless a justice of the peace would have such power under the laws of the state, and a recognizance for appearance at a subsequent day taken without such authority is absolutely void. United States 2. Case, 8 Blatch., 250. S 23. Wbere, in an examination proceeding before a United States commissioner, the evi