Session No 2

25 Nissan 5721 (11 April 1961)

Presiding Judge: I declare the second session open.

Mr. Hausner, please continue with your argument.

Attorney General: With the Court's permission. I was dealing with the question of an American decision in regard to the relevancy of bringing a man to trial and the manner of so doing. In regard to the issue of competence, I shall quote a series of judgments of the Supreme Court of the United States and also of Federal Courts of the United States, and, as I have already said, their importance is great since these courts consider these matters according to the principles of public international law as part of the national law of the United States. At the outset I should like to quote not actually the first decision that was given in the series - I shall return to that in the course of my argument - but to a judgment which illustrates and answers most of the questions which arise here. I am referring to case of Pettibone versus Nichols 1906, 51 Lawyers' Edition on page 148. I shall first quote the facts of the case as they are set forth on page 151:

"On the 15th of March, 1906 , after the final judgment in the Supreme Court of Idaho, Pettibone made application to the Circuit Court of the United States, sitting in Idaho, for a writ of habeas corpus alleging that he was restrained of his liberty by the sheriff of Canyon county, in violation of the Constitution and laws of the United States. As was done in the Supreme Court of Idaho, the accused set out numerous facts and circumstances which, he contended, showed that his personal presence in Idaho was secured by fraud and connivance on the part of the executive officers and agents of both Idaho and Colorado, in violation of the constitutional and statutory provisions regulating to fugitives from justice. Consequently, it was argued, the court in Idaho did not acquire jurisdiction over his person."

"As the petitioner is within the jurisdiction of Idaho, and is held by its authorities for trial, are the particular methods by which he was brought within her limits at all material in the proceeding by habeas corpus? It is contended by the State that this question was determined in its favour by the decisions of this court. This is controverted by the petitioner, and we must therefore, and particularly because of the unusual character of this case and the importance of the questions involved, see what this court has therefore adjudged."

"If Ker, by virtue of the treaty with Peru, and because of his forcible and illegal abduction from that country, did not acquire an exemption from the criminal process of the courts of Illinois, whose laws he had violated, it is difficult to see how Pettibone had acquired, by virtue of the Constitution and laws of the United States, an exemption from prosecution by the state of Idaho, which has custody of his person."

"These principles determine the present case and require an affirmance of the judgment of the circuit court. It is true, the decision in the Mahon case was by a divided court, but its authority is nonetheless controlling. The principle on which it rests has been several times recognized and reaffirmed by this court, and is no longer to be questioned. It was held in Cook v. Hart, 146 U.S. 183, 192, 36 L. ed. 934, 939, 13 Sup. Ct. Rep. 40, that the cases of Ker v. Illinois and Mahon v. Justice established these propositions: 1. That this court will not interfere to relieve persons who have been arrested and taken by violence from the territory of one state to that of another, where they are held under process legally issued from the courts of the latter state. 2. That the question of the applicability of this doctrine to a particular case is as much within the province of a state court, as a question of common law or of the law of nations, as it is of the courts of the United States; in Lascelles v. Georgia, 148 U.S. 537, 543, 37 L. ed. 549, 551, 13 Sup. Ct. Rep. 687, that it was settled in the Ker and Mahon Cases that '...Except in the case of a fugitive surrendered by a foreign government, there is nothing in the Constitution, treaties, laws of the United States, which exempts an offender, brought before the courts of a state for an offense against its laws, from trial and punishment, even though brought from another state by unlawful violence, or by abuse of legal process' and in Adams v. New York, 192 U.S. 585, 596, 48 L. ed. 575, 579, 24 Sup. Ct. Rep. 372 ( the same cases being referred to ) that '...If a person is brought within the jurisdiction of one state from another, or from a foreign country, by the unlawful use of force, which would render the officer liable to a civil action, or in a criminal proceeding, because of the forcible abduction, such fact would not prevent the trial of the person thus abducted in the state wherein he had committed an offense."

Attorney General: The United States Supreme Court, Your Honour. I read from page 158:

"The act complained of does not relate to the restraint from which the petitioner seeks to be relieved but to the means by which he was brought within the jurisdiction of the court under whose process he is held. It is settled that a party is not excused from answering to the State whose laws he has violated, because violence has been done to him in bringing him within the State. Moreover if any injury was done in this case in imposing the petitioner upon the State of Washington without grounds, therefore, the injury was not to the petitioner but to the State whose jurisdiction was imposed upon by what was done. "It is said that the present case is distinguishable from the Mahon case in that the illegal abduction complained of in the latter was by persons who neither acted nor assumed to act under the authority of the state into the custody of whose authorities they delivered Mahon; whereas, in this case, it is alleged that Idaho secured the presence of Pettibone within its limits through a conspiracy on the part of its governor and other officers. This difference in the cases is not, we think, of any consequence as to the principle involved; for the question now is - and such was the fundamental question in Mahon's case - whether a circuit court of the United States when asked, upon habeas corpus, to discharge a person held in actual custody by a state for trial in one of its courts under an indictment charging a crime against its laws, can properly take into account the methods whereby the state obtained such custody. That custody was determined in the negative in the Ker and Mahon cases. It was there adjudged that in such a case neither the Constitution nor laws of the United States entitled the person so held to be discharged from custody and allowed to depart from the state. If, as suggested, the application of these principles may be attended by mischievous consequences, involving the personal safety of individuals within the limits of the respective states, the remedy is with the lawmaking department of the government. Congress has long been informed by judicial decisions as to the state of the law upon this general subject. "In this connection it may be well to say that we have not overlooked the allegation that the governor and other officers of Idaho well knew at the time that the requisition was made upon the governor of Colorado, that Pettibone was not in Idaho on December 30th, 1905, nor at any time near that date, and had the purpose in all they did to evade the constitutional and statutory provisions relating to fugitives from justice. To say nothing of the impropriety of any such facts being made the subject of judicial inquiry in a Federal Court, the issue thus attempted to be presented was wholly immaterial. Even were it conceded, for the purposes of this case, that the governor of Idaho wrongfully issued his requisition, and that the governor of Colorado erred in honoring it, and in issuing his warrant of arrest, the vital fact remains that Pettibone is held by Idaho in actual custody for trial under an indictment charging him with crime against its laws, and he seeks the aid of the circuit court to relieve him from custody, so that he may leave that state and thereby defeat the prosecution against him without a trial. In the present case it is not necessary to go behind the indictment and to enquire as to how it happened that he came within reach of the process of the Idaho court in which the indictment is pending. And any investigation as to the motives which induced the action taken by the governors of Idaho and Colorado would, as already suggested, be improper as well as irrelevant to the real question to be now determined."

"On February 10, 1950, Charles D. Hatfield filed herein his petition requesting the issuance of a writ of habeas corpus to inquire into the legality of his detention by the Warden of the State Prison of Southern Michigan under judgment of the Circuit Court for the Country of St. Joseph, upon conviction of a murder committed in said County. An examination of this petition discloses that petitioner's sole complaint is one which is currently popular in petitions for habeas corpus emanating from the State Prison of Southern Michigan, namely, that instead of being legally extradited from the State of Texas to the State of Michigan to answer such charges, he was in effect, kidnapped and transported against his will from Texas to Michigan by Michigan State Police officers."

"It is well settled that where a person accused of a crime is found within the territorial jurisdiction wherein he is so charged and is held under process legally issued from a court of that jurisdiction, neither the jurisdiction of the court nor the right to put him on trial for the offense charged is impaired by the manner in which he was brought from another jurisdiction, whether by kidnapping, illegal arrest, abduction or irregular extradition proceedings; and Federal statutory or constitutional provisions are not violated by reasons of illegal means adopted in bringing the accused to the jurisdiction where he is then held for proper process, and specifically the trial of a person brought into a state by forceful abduction is not a violation of the provisions of the Federal Constitution forbidding the deprivation of life, liberty, or property without due process of law."

And now I pass to the series of decisions which were given on that subject. The first and the most important of them is Ker versus Illinois, 1886, Lawyers' Edition 30, at page 421. These were the facts. Ker was accused of theft in the State of Illinois. His extradition was requested from the State of Peru in view of the criminal act which he had committed. The officer of the United States Government who was charged with the implementation of the extradition travelled to Lima, the capital of Peru, and instead of bringing about the extradition by legal and normal methods, arrested Ker, and brought him to the State of California. The Californian authorities put him under arrest and transferred him to a court in Illinois. I shall not read the whole judgment since this court has already heard it. The decision is found at the end of page 423 and on page 424. The conclusion of the judgment is important:

"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 that the Constitution, or laws, or treaties of the United States guarantee him any protection." If I may break off for a moment, if there had been a conflict between Ker's rights according to United States law and the claim of the State of Illinois to try him, then the Supreme Court would have been obliged to enter into the merits of the question and would have examined which of the two was right. But the United States Supreme Court says: It is not necessary to go into this question and it is not necessary to take any decision at all, in view of the fact that the legal right of Ker was not violated by the fact that he was brought, albeit forcibly, within the jurisdiction of the Court in Illinois."

" However this may be, the decision of that question is as 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 courts of the United States. And though we might or might not differ with the Illinois court on that subject, it is one in which we have no right to review their decision.

"It must be remembered that this view of the subject does not leave the prisoner or the Government of Peru without remedy for his unauthorized seizure within its territory."

In the matter of ex parte Johnson, 1897, Lawyers' Edition Vol. 42, page 103,the question of the legality of a judgment arose which had been given against a person who had been arrested illegally. The decision is found on page 105.

"Indeed, there are many authorities which go to the extent of holding that, in criminal cases, a 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 offense and presents no valid objection to his trial in such court."

"... Although it has been frequently held that if a defendant in a civil case be brought within the process of the court by a trick or device, the service will be set aside and he will be discharged from custody...The law will not permit a person to be kidnapped or decoyed within the jurisdiction for the purpose of being compelled to answer to a mere private claim, but in criminal cases the interests of the public override that which is, after all, a mere privilege from arrest."

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