Fundamento destacado: (…) We do not intend to say that there -niay not be .proceedings previous to the trial, in regard to which the prisoner could invoke in some manner the provisions of this clause of the Constitution, but, for mere irregularities in the manner in which he may be brought into the custody of the law, we do not think he is entitled to say that he should not be tried at all for the crime with whic- ‘e is charged in a regular indictment. (…) The question of how far his forcible seizure in another country, and transfer by violence, force, or fraud, to this country, could be made available to resist trial in the State court, for the offence now charged upon him, is one which we do not feel called upon to decide, for in that transaction we do not see th’at the Constitntion, or laws, or treaties of the United States guarantee him any protection. There afe authorities of the highest reVpjectability which hold that sucb forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence,.and presents no valid bbjection .to his trial in such court. Among the authorities which support the proposition are the following: Ew parte Scptt, 9 B. & 0. 446 (1829); Lopez &b Satle’s Case, 1 Deaisly & Bell’s Crown Cases, 525; State v. Smith, 1 Bailey,’So. Car., Law, 283 (1829); S. C. 19 Am. Dec. 679; State v. Brewster, 7 Ft. 118 (1835); -Dow’s Case, 18 Penn. St. 37 (1851); State v. Ross and .Afanm, 21 Iowa, 467 (1866); BAip Richmond v. Urnited States, ([lte Richmond,) 9 Cranch, 102. However this may be, the decision of that question. is Vs» much within the province of the State court, as a question of common law, or of the law of nations, of which that court is bound to take notice, as it is of the coifrts of the United States.
Traducción LP:
(…) No pretendemos decir que no pueda haber actuaciones previas al juicio respecto de las cuales el acusado pudiera invocar de algún modo las disposiciones de esta cláusula de la Constitución; pero, en cuanto a meras irregularidades en la forma en que haya sido puesto bajo custodia de la ley, no creemos que tenga derecho a sostener que no deba ser juzgado en absoluto por el delito del que se le acusa en una acusación formal regular. (…)
La cuestión de hasta qué punto su aprehensión forzosa en otro país y su traslado a este país mediante violencia, fuerza o fraude podría hacerse valer para oponerse al juicio ante un tribunal estatal por el delito que ahora se le imputa, es una cuestión que no consideramos necesario decidir, pues en esa actuación no advertimos que la Constitución, ni las leyes, ni los tratados de los Estados Unidos le garanticen protección alguna. Existen autoridades de la más alta respetabilidad que sostienen que tal secuestro forzoso no es razón suficiente para que la persona no deba responder una vez puesta dentro de la jurisdicción del tribunal que tiene derecho a juzgarla por tal delito, y que no constituye una objeción válida a su enjuiciamiento ante dicho tribunal. Entre las autoridades que respaldan esta proposición se encuentran las siguientes: Ex parte Scott, 9 B. & C. 446 (1829); Lopez & Sattre’s Case, 1 Denison & Bell’s Crown Cases, 525; State v. Smith, 1 Bailey (Carolina del Sur), Law, 283 (1829); S. C. 19 Am. Dec. 679; State v. Brewster, 7 Vt. 118 (1835); Dow’s Case, 18 Penn. St. 37 (1851); State v. Ross and Mann, 21 Iowa, 467 (1866); Richmond v. United States (el caso Richmond), 9 Cranch, 102.
Sea como fuere, la decisión de esa cuestión corresponde tanto a la competencia del tribunal estatal, como cuestión de derecho consuetudinario o del derecho de gentes —de los cuales dicho tribunal está obligado a tomar conocimiento—, como lo está a la de los tribunales de los Estados Unidos.
OCTOBER TERM, 1886.
Syllabus.
pretence of trying him for an offence for which extradition could be claimed, so as to try him for one for which it could not, it might furnish just cause of complaint on the part of the country which had been deceived, but it would be a matter entirely for adjustment between the two countries, and which could in no way enure to the benefit of the accused except through the instrumentality of the government that had been induced to give him
up.
As to § 5275 of the Revised Statutes I have only to say that, in my opinion, it neither adds to the rights of the accused nor changes the effect of the treaty as a part of the law of the United States. The accused was surrendered by Great Britain to the United States, and the United States are alone responsible to that country for whatever may be done with him in consequence of his surrender. He was delivered into the possession of the United States, and, in my opinion, that possession may at any time be regained by the United States under this statute from the State, or its authorities, so long as the accused remains in custody, if it should be neces-sary in order to enable them to keep their faith with Great Britain in respect to the surrender.
I do not care to elaborate the argument on either of these questions. My only purpose is to state generally the grounds of my dissent.
KER v. ILLINOIS.
ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.
Argued April 27, 1885, Decided December 6, 1886,
A plea to an indictment in a State court, that the defendant has been brought from a foreign country to this country by proceedings which are a violation of a treaty between that country and the United States, and which are forbidden by that treaty, raises a question, if the right asserted by the plea is denied, on which this court can review, by writ of error, the judgment of the State court.
But where the prisoner has been kidnapped in the foreign country and brought by force against his will within the jurisdiction of the State
Opinion of the Court.
whose law he has violated, with no reference to an extradition treaty, though one existed, and no proceeding or attempt to proceed under the treaty, this court can give no relief, for these facts do not establish any right under the Constitution, or laws, or treaties of the United States.
The treaties of extradition to which the United States are parties do not guarantee a fugitive from the justice of one of the countries an asylum in the other. They do not give such person any greater or more sacred right of asylum than he had before. They only make provision that for certain crimes he shall be deprived of that asylum and surrendered to justice, and they prescribe the mode in which this shall be done.
The trespass of a kidnapper, unauthorized by either of the governments, and not professing to act under authority of either, is not a case pro-vided for in the treaty, and the remedy is by a proceeding against him by the government whose law he violates, or by the party injured.
How far such forcible transfer of the defendant, so as to bring him within the jurisdiction of the State where the offence was committed, may be set up against the right to try him, is the province of the State court to decide, and presents no question in which this court can review its decision.
The plaintiff in error, being convicted of embezzlement in a State court of Illinois, sued out this writ of error. The Fed-eral question, which makes the case, is stated in the opinion of the court.
Mr. C. Stuart Beattie for plaintiff in error. Mr. Robert Hervey was with him on the brief.
Mr. George Hunt, Attorney General of Illinois, and Mr. P. S. Grosscup for defendant in error.
Mr. Leonard Swett was with them on the brief.
This case is brought here by a writ of error to the Supreme Court of the State of Illinois. The plaintiff in error, Frederick M. Ker, was indicted, tried, and convicted in the Criminal Court of Cook County, in that State, for larceny. The indictment also included charges of embezzlemen-t. – During the proceedings connected with» the trial the defendant presenited.a plea in abatement, which, on demurrer, was overruled, and the defendant refusing to plead further, a plea of not guity was entered for him, according to the statute of that State, by order of the court, on which the trial and conviction took place.
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