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indictment (Art. 1, sec. 10, Bill of Rights, Ohio Constitution), the proceedings in such a case before a justice of the peace being only preliminary and for the purpose of securing arrest and detention. It is contended that the constitutional provision for the extradition of persons “charged with treason, felony or other crime” requires that the charge must be pending in a court that can try the defendant, and does not include one before a committing magistrate, who can only discharge or hold for trial before another tribunal.

But why should the word "charged” be given a restricted interpretation? It is found in the Constitution, and ordinarily words in such an instrument do not receive a narrow, contracted: meaning, but are presumed to have been used in a broad sense, with a view of covering all contingencies. In McCulloch v. Maryland, 4 Wheat. 316, one question discussed was as to the meaning of the word “necessary” as found in the clause of the Constitution giving to Congress power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." Chief Justice Marshall, speaking for the court, said (p. 415):

“This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view.

"Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done, by confining the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and, consequently,

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to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances."

Under the Constitution each State was left with full control over its criminal procedure. No one could have anticipated what changes any State might make therein, and doubtless the word "charged” was used in its broad signification to cover any proceeding which a State might see fit to adopt by which a formal accusation was made against an alleged criminal. In the strictest sense of the term a party is charged with crime when an affidavit is filed, alleging the commission of the offense and a warrant is issued for his arrest, and this is true whether a final trial may or may not be had upon such charge.. It may be, and is true, that in many of the States some further proceeding is, in the higher grade of offenses at least, necessary before the party can be put upon trial, and that the proceedings before an examining magistrate are preliminary, and only with a view to the arrest and detention of the alleged criminal ; but extradition is a mere proceeding in securing arrest and detention. An extradited defendant is not put on trial upon any writ which is issued for the purposes of extradition, any more than he is upon the warrant which is issued by the justice of the peace directing his arrest.

Cases are referred to, such as Virginia v. Paul, 148 U. S. 107, in which a distinction is made between the preliminary proceedings looking to the arrest and detention of the


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defendant and those final proceedings upon which the trial is had. That was a removal case, and, discussing the question, Mr. Justice Gray, speaking for the court, said (p. 119):

“By the terms of section 643, it is only after 'any civil suit or criminal prosecution is commenced in any court of a State,' and 'before the trial or final hearing thereof,' that it can be removed for trial into the Circuit Court next to be holden in the district where the same is pending,' and 'shall proceed as a cause originally commenced in that court.'

“Proceedings before a magistrate to commit a person to jail, or to hold him to bail, in order to secure his appearance to answer for a crime or offense, which the magistrate has no jurisdiction himself to try, before the court in which he may be prosecuted and tried, are but preliminary to the prosecution, and are no more a commencement of the prosecution than is an arrest by an officer without a warrant for a felony committed in his presence."

But such decisions, instead of making against the use in this constitutional section of the word "charged” in its broad sense, make in its favor, because, as we have noticed, an extradition is simply one step in securing the arrest and de tention of the defendant. And these preliminary proceedings are not completed until the party is brought before the court in which the trial may be had. Why should the State be put to the expense of a grand jury and an indictment before securing possession of the party to be tried? It may be true, as counsel urge, that persons are sometimes wrongfully extradited, particularly in cases like the present; that a creditor may wantonly swear to an affidavit charging a debtor with obtaining goods under false pretences. But it is also true that a prosecuting officer may either wantonly or ignorantly file an information charging a like offense. But who would doubt that an information, where that is the statutory pleading for purposes of trial, is sufficient to justify an extradition? Such

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possibilities as these cannot be guarded against. While courts will always endeavor to see that no such attempted wrong is successful, on the other hand care must be taken that the process of extradition be not so burdened as to make it practically valueless. It is but one step in securing the presence of the defendant in the court in which he may be tried, and in no manner determines the question of guilt

While perhaps more pertinent as illustration than argument, the practice which obtains in extradition cases between this and other nations is worthy of notice. Sections 5270 to 5277, Rev. Stat., inclusive provide for this matter. In none of these sections or in subsequent amendments or additions thereto is there any stipulation for an indictment as a prerequisite to extradition. On the contrary, the proceedings assimilate very closely those commenced in any State for the arrest and detention of an alleged criminal. They go upon the theory that extradition is but a mere step in securing the presence of the defendant in the court in which he may lawfully be tried. In the memorandum issued by the Department of State in May, 1890, in reference to the extradition of fugitives from the United States in British jurisdiction, is this statement (1 Moore on Extradition, p. 335):

"It is stipulated in the treaties with Great Britain that extradition shall only be granted on such evidence of crimi

ty as, according to the laws of the place where the fugitive or person charged shall be found, would justify his apprehension and commitment for trial if the crime or offense had there been committed.

"It is admissible as constituting such evidence to produce a properly certified copy of an indictment found against the fugitive by a grand jury, or of any information made before an examining magistrate, accompanied by one or more depositions setting forth as fully as possible the circunstances of the crime."

And this is in general harmony with the thought underlying extradition.

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Entertaining these views, we answer the first question in the affirmative and the second in the negative.

MR. JUSTICE HARLAN did not hear the argument and took no part in the decision of this case.



No. 92. Argued March 23, 1903.-Decided April 3, 1905.

An officer in the Navy failing to report at the time ordered, while his vessel · was in Japanese waters, in 1865, was placed under arrest for drunken

ness and neglect of duty; later, on the same day he was, by order of the rear admiral, restored to duty to await an opportunity to investigate the case. Subsequently the rear admiral convened a court martial consisting of seven officers all of equal or superior rank to accused who was served with charges and arrested, arraigned and tried, found guilty and dismissed. Accused stated he had no objections to any of the court and knew of no reason why it should not proceed with his trial. Subsequently in a suit for salary on ground of illegal dismissal he claimed the first arrest was an expiation of the offense and a bar; that the court was invalid and incompetent and the sentence invalid not having been

approved by the rear admiral or the President. Held, that: Par: 1205, Naval Regulations of 1865, providing that the arrest and dis

charge of a person in the Navy for an offense shall be a bar to further martial proceedings against him for that offense, does not apply to an arrest and temporary confinement not intended as a punishment but as a reasonable precaution for the maintenance of good order and dis

cipline aboard. Under Article 38 of the law of April 23, 1800, 2 Stat. 50, and Par. 1202,

Naval Regulations of 1865, the provision as to service of charges upon the accused at the time that he is put under arrest iefers not to the temporary arrest necessary for order and discipline at the time of the commission

of the offense but to the subsequent arrest for trial by court martial. It is a question for the officer convening the court to determine whether

more officers could be convened without injury to the service and his action in this respect cannot be attacked collaterally, and if the accused expresses satisfaction with the court martial as constituted, it is a clear waiver of any objection to its personnel.

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