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Jurisdiction Following Seizure or Arrest in Violation of International Law

  • Edwin D. Dickinson (a1)


It is well settled in Anglo-American law that national courts are competent, in general, to adjudicate rights and duties with respect to all things or persons found within the territory which the process of the court controls. Exceptions find an especial justification in considerations of national or international convenience. A situation which seems to have been insufficiently considered, however, is presented by the case of the thing or person which has been seized or arrested abroad, in violation of international law, and brought within the state and thus within reach of the process of the state's courts. Should the courts be considered competent, on the basis of physical presence thus procured, to adjudicate in the usual way?



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1 “The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power.” Marshall, C. J., in The Schooner Exchange v. M'Faddon (1812), 7 Cr. 116,136.

2 1886) 119 U. S. 407, 430, Dickinson, Cases, 738, 744. See Re Alice Woodall (1888), 16 Cox C. C. 478. See also Cosgrove v. Winney (1899), 174 U. S. 64; Johnson v. Browne (1907), 205 U. S. 309. Cf. In re Rowe (1896), 77 Fed. 161; State v. Rowe (1898), 104 la. 323; Cohn v. Jones (1900), 100 Fed. 639; State v. Spiegel (1900), 111 la. 701; Greene v. United States (1907), 154 Fed. 401; Collins v. O'Neil (1909), 214 U. S. 113; People v. Hanley (1925), 240 N. Y. 455.

3 Cf. Moore, Extradition, I, 247.

4 See Ker v. Illinois (1886), 119 U. S. 436, Dickinson, Cases, 751, discussed infra, p. 237.

5 “As this right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extradited, and of bad faith to the country which permitted his extradition. No such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them.” United States v. Rauscher, 119 U. S. 407, 422. “In the case of United States v. Rauscher … the effect of extradition proceedings under a treaty was very fully considered, and it was there held, that, when a party was duly surrendered, by proper proceedings, under the treaty of 1842 with Great Britain, he came to this country clothed with the protection which the nature of such proceedings and the true construction of the treaty gave him. One of the rights with which he was thus clothed, both in regard to himself and in good faith to the country which had sent him here, was, that he should be tried for no other offence than the one for which he was delivered under the extradition proceedings.” Ker v. Illinois, supra, p. 443. “It is urged that the construction contended for by the respondent is exceedingly technical and tends to the escape of criminals on refined subtleties of statutory construction, and should not, therefore, be adopted. While the escape of criminals is, of course, to be very greatly deprecated, it is still most important that a treaty of this nature between sovereignties should be construed in accordance with the highest good faith, and that it should not be sought by doubtful construction of some of its provisions to obtain the extradition of a person for one offense and then punish him for another and different offense.” Johnson v. Brown, supra, p. 321.

6 Dominguez v. State (1921), 90 Tex. Cr. 92, Dickinson, Cases, 755; 20 Mich. L. Rev. 536; 31 Yale L. Jour. 443.

7 90 Tex. Cr. 92, 97.

8 90 Tex. Cr. 92, 98-99.

9 Reported as Cook v. United States (1933), 288 U. S. 102. See comment in this Jornal, Vol. 27 (1933), p. 305.

10 288 U. S. 102, 121.

11 “ At common law, any person may, at his peril, seize for a forfeiture to the government; and if the government adopt his seizure, and the property is condemned, he will be completely justified.” Story, J., in Gelston v. Hoyt (1818), 3 Wh. 246, 310. See also The Caledonian (1819), 4 Wh. 100, 103; Wood v. United States (1842), 16 Pet. 342, 359; Taylor v. United States (1845), 3 How. 197, 205; Dodge v. United States (1926), 272 U. S. 530, 532; The Homestead (1925), 7 P. (2d) 413, 415; The Underwriter (1926), 13 F. (2d) 433, 434. This proposition may be sound enough, but obviously it does not follow that the government, by proceeding in reliance upon a seizure made in violation of treaty or international law, can acquire for its courts a competence which the seizure could not give. It is lack of competence in the nation, and hence in its courts, that presents the difficulty, not the authority of the individual who made the seizure.

12 There are cases in which reliance appears to have been placed upon a distinction between the custody of the officer who made the original seizure and the subsequent custody of the court. Some of these cases may be justified on the ground that the original seizure was a permissible exercise of extraterritorial authority in aid of the enforcement of territorial laws. See The Tenyu Maru (1910), 4 Alaska 129; The Grace and Ruby (1922), 283 Fed. 475; 40 Harv. L. Rev. 1, 21. Others, discussed infra, are believed to be unsound and to have been virtually overruled by the decision in the case of The Mazel Tov, supra. See The Ship Richmond v. United States (1815), 9 Cr. 102; The Merino (1824), 9 Wh. 391. In civil cases between private litigants, courts decline jurisdiction over a defendant who has been decoyed into the state by fraud or brought by force. “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.” Brown, J., in In re Johnson (1897), 167 U. S. 120, 126. See also Stein v. Valkenhuysen (1858), E. B. & E. 65; Williams v. Reed (1862), 29 N. J. L. 385; Union Sugar Refinery v. Mathiesson (1864), 2 Cliff. 304; Metcalf v. Clark (1864), 41 Barb. 45; Dunlap & Co. v. Cody (1871), 31 la. 260; Townsend v. Smith (1879), 47 Wis. 623; Abercrombie v. Abercrombie (1902), 64 Kan. 29; Cavanagh v. Manhattan Transit Co. (1905), 133 Fed. 818; Jaster v. Currie (1905), 198 U. S. 144; 26 Harv. L. Rev. 283, 285; 39 Yale L. Jour. 889. The same principle is applied where property is brought within reach of the court's process by fraud or force. See Moynahan v. Wilson (1877), 2 Flippin, 130; Copas v. Provision Co. (1889), 73 Mich. 541; Van Donselaar v. Jones (1923), 195 la. 1081; Abel v. Smith (1928), 151 Va. 568. In the famous case of The Jewels of the Princess of Orange, in which jewels belonging to a member of the royal family of the Netherlands were stolen, brought to the United States by the thief or his accomplice, and libelled for a violation of United States revenue laws, Attorney General Taney, later Chief Justice of the United States Supreme Court, said: “ I t is, I think, very clear that the jewels are not liable to condemnation under the laws of the United States. The real owner has done no act that can rightfully subject the property to forfeiture. The party who imported them into this country obtained the possession fraudulently, and without her knowledge, and brought them here against her will. It was not in her power to prevent it; for she did not know who had the possession of them, or where they were to be found, until they were seized. And property thus obtained, and thus introduced against the consent of the owner, stands upon the same footing with that which is cast upon our shores by the violence of the winds and waves, and is entitled to the same protection. It is not liable to forfeiture in either case; and the innocent owner will not be visited with that penalty for an act which it was out of his power to prevent.” (1831) 2 Op. Atty. Gen. 482, 484. A fortiori a vessel seized in violation of international treaty and brought by force within reach of the court's process should be released. The distinction between the custody of the officer who made the original seizure and the subsequent custody of the court is a mere face saving device. See United States v. Ferris (1927), 19 P. (2d) 925, Hudson, Cases, 676, Annual Digest, 1927-1928, Case No. 127, note 23, infra.

13 It is of course true that an individual defendant may waive an objection which he is personally entitled to make to the jurisdiction of a particular court by appearing and pleading to the merits. See Western Loan and Savings Co. v. Butte & Boston Mining Co. (1908), 210 U. S. 368; Houston v. Ormes (1920), 252 U. S. 469, 474. But such a waiver of personal privilege cannot invest the nation with a competence which it would not otherwise possess. Cf. Case of Raymond Fornage, Sirey (1873), Pt. I, 141, Dickinson, Cases, 648.

14 288 IT. S. 102,121-122.

15 In so doing, as Judge Hough observed in other and less striking circumstances, the judiciary would be “really contributing to what might become, under conceivable circumstances, a casus belli.” The Maipo (1919), 259 Fed. 367, 368.

16 “It cannot be doubted that all countries governed by the common law have in fact accepted international law as part of the common law; and that the principles of that law which give or withhold jurisdiction are therefore principles of our common law.” Beale, “The Jurisdiction of a Sovereign State,” 36 Harv. L. Eev. 241, 242. See The Paquete Habana (1900), 175 U. S. 677, 700.

17 The contrary has been argued in reliance upon cases in which the political departments of government had foreclosed the issue by expressly asserting an authority to make the seizure or arrest. Cf. Buron v. Denman (1848), 2 Ex. 167; The Marianna Flora (1826), 11 Wh. 1; Jones v. United States (1890), 137 U. S. 202; In re Cooper (1892), 143 U. S. 472. This argument has undoubtedly influenced some of the decisions. See The Ship Richmond v. United States, supra; The Tenyu Maru, supra; The Grace and Ruby, supra. See also State v. Brewster (1835), 7 Vt. 118, 121; Ker v. People (1884), 110 111. 627, 640; United States v. Unverzagt (1924), 299 Fed. 1015, Annual Digest, 1923-1924, Case No. 161. But the cases relied upon are not in point, and the argument is clearly mistaken where the issue has not been thus foreclosed by political decision, where it is admitted or proved that the seizure or arrest was made in violation of treaty or international law, and where the executive has submitted to the court for the purpose of securing condemnation or conviction. Cf. Le Louis (1817), 2 Dods. 210; The Paquete Habana, supra; United States v. Ferris, supra; Williams, Federal Practice, 2d ed., 14; 36 Harv. L. Rev. 609, 613.

18 See Dickinson, “L'Interprétation et Application du Droit International dans les Pays Anglo-Américains,” Académie de Droit International, Recueil des Cours (1932), II, 305.

19 (1886) 119 U. S. 436, Dickinson, Cases, 751.

20 “A final judgment or decree in any suit in the highest court of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error… .” U. S. Rev. Stat., §709. See 28 USCA § 344.

21 See U. S. Rev. Stat., § 709, quoted note 20, supra.

22 119 U. S. 436, 443, supra, note 5.

23 There are decisions to the effect that when a person is held on a criminal charge the court need not inquire into the circumstances of his apprehension. It has been said that “in criminal cases the interests of the public override that which is, after all, a mere privilege from arrest.” Brown, J., in In re Johnson (1897), supra, p. 126. See Travers, “Des arrestations au cas de venue involontaire sur le territoire,” 13 Revue de Droit International Privé et de Droit Pinal International (1917), 627. But decisions relying upon this proposition have not been founded upon an adequate consideration of the effect to be attributed to an arrest abroad in violation of treaty or international law. See Ex parte Scott (1829), 9 B. & C. 446; State v. Brewster, supra; Ker v. People, supra; United States v. Unverzagt, supra; Ex parte Ponzi (1926), 106 Tex. Cr. 58. Cases of arrest abroad pursuant to an informal agreement are not in point since there is no violation of treaty or international law in such circumstances. See People v. Rowe (1858), 4 Parker Cr. 253; People v. Pratt (1889), 78 Cal. 345; Travers, op. cit. See also Ex parte Brown (1886), 28 Fed. 653; In re Ezeta (1894), 62 Fed. 964; Ex parte Wilson (1911), 140 S. W. (Tex. Cr.), 98. The American interstate cases are not controlling. State v. Smith (1829), 1 Bailey (S. C), 283; Dow's Case (1851), 18 Pa. St. 37; State v. Ross (1866), 21 la. 467; In re Miles (1880), 52 Vt. 609; Mahon v. Justice (1888), 127 U. S. 700; Kingen v. Kelley (1891), 3 Wyo. 566; 36 Harv. L. Rev. 609. And even among the American interstate cases there are a few decisions contra. See State v. Simmons (1888), 39 Kan. 262; State v. Jackson (1888), 36 Fed. 258; See also Commonwealth v. Shaw (1885), 6 Crim. L. Mag. (Pa.) 245. The question is not political. See note 17, supra. Cf. State v. Brewster, supra., p. 121; Ker v. People, supra, p. 640; United States v. Unverzagt, supra; Travers, op. cit., 642, 646. In principle, in the international cases, there should be no jurisdiction to prosecute one who has been arrested abroad in violation of treaty or international law. The complete lack of jurisdiction has been asserted in noteworthy language in United States v. Ferris, supra, a prosecution of members of the crew of a foreign ship for conspiracy to violate the Prohibition and Tariff Acts following seizure of the ship some 270 miles off the west coast of the United States. In sustaining pleas to the jurisdiction, Judge Bourquin said: “Hence, as the instant seizure was far outside the limit, it is sheer aggression and trespass (like those which contributed to the War of 1812), contrary to the treaty, not to be sanctioned by any court, and cannot be the basis of any proceeding adverse to the defendants. The prosecution contends, however, that courts will try those before it, regardless of the methods employed to bring them there. There are many cases generally so holding, but none of authority wherein a treaty or other federal law was violated, as in the case at bar. That presents a very different aspect and case. ‘A decent respect for the opinions of mankind,’ national honor, harmonious relations between nations, and avoidance of war, require that the contracts and law represented by treaties shall be scrupulously observed, held inviolate, and in good faith precisely performed—require that treaties shall not be reduced to mere ‘scraps of paper.'” After referring to United States v. Rauscher, supra, and Ker v. Illinois, supra, Judge Bourquin concluded: “It seems clear that, if one legally before the court cannot be tried because therein a treaty is violated, for greater reason one illegally before the court, in violation of a treaty, likewise cannot be subjected to trial. Equally in both cases is there absence of jurisdiction.“

24 The Twee Qebroeders(1800), 3 C. Rob. 162, 162 n.; The Anna (1805), 5 C. Rob. 373; The Purissima Conception (1805), 6 C. Rob. 45; The Eliza Ann (1813), 1 Dods. 244; The Bangor [1916] P. 181; The Dilsseldorf [1920] A. C. 1034, 1037; The Valeria [1921] 1 A. C. 477; The Pellworm [1922] 1 A. C. 292; The Anne (1818), 3 Wh. 435; The Santissima Trinidad (1822), 7 Wh. 283, 349; The IAUa (1862), 2 Sprague 177; The Sir William Peel (1866), 5 Wall. 517; The Adela (1868), 6 Wall. 266; The Florida (1880), 101 U. S. 37, 42.

25 The Purissima Conception, supra, p. 47.

26 Possibly also under the influence of eighteenth century uncertainty as to the nature and extent of territorial waters.

27 Cf. The Santissima Trinidad, supra, (claim to restitution by individual claimant where capture had been made on the high seas by a belligerent vessel equipped in United States ports in violation of neutrality); The Appam (1917), 243 U. S. 124, Dickinson, Cases, 781 (claim to restitution by individual claimant where belligerent prize captured on the high seas had been laid up in United States port in violation of neutrality).

28 The prize tribunals of France, Germany and Italy apparently consider a capture made in violation of neutral territorial waters as “absolutely illegal irrespective of whether the neutral power in whose waters the capture was made intervenes or not.” Garner, Prize Law, 227-230. See also Colombos, Law of Prize, 117-120.

29 (1815) 9 Cr. 102.

30 9 Cr. 102, 104.

31 (1824) 9 Wh. 391.

32 288 U. S. 102, 122.

33 119 U. S. 407, discussed supra, p. 231.

34 9 Cr. 102, 104. In the case of The Merino, it was argued for the United States, in reliance upon the case of The Ship Richmond, that “the trespass on the Spanish territory cannot be so connected with the subsequent seizure, under the process of the court below, as to invalidate the seizure. The Richmond, 9 Cranch, 102. If there was any offence against the sovereignty of Spain in the original seizure, that is a matter to be adjusted between the two governments.” 9 Wh. 391, 399.

35 See The Charming Betsy (1804), 2 Cr. 64; Le Louis, supra; The San Juan Nepomuceno (1824), 1 Hagg. Adm. 265; The Antelope (1825), 10 Wh. 66; The Paquete Habana, supra; The PeUworm, supra

36 See Pearcy v. Stranahan (1907), 205 U. S. 257; Sullivan v. Kidd (1921), 254 U. S. 433, Annual Digest, 1919-1922, Case No. 252; Crandall, Treaties, 2d ed., 364.

37 Cf. The Leonora [1918] P. 182, [1919] A. C. 974; Yntema, “Retaliation and Neutral Rights,” 17 Mich. L. Rev. 564.

38 Foster & Elam v. Neilson (1829), 2 Pet. 253, 307; Williams v. Suffolk Insurance Co. (1839), 13 Pet. 415, 420; Jones v. United States (1890), 137 U. S. 202, 221; Moore, Act of State in English Law, 35.

39 Rose v. Himely (1808), 4 Cr. 241; Hudson v. Guestier (1808), 4 Cr. 293, (1810) 6 Cr. 281; Williams v. Armroyd (1813), 7 Cr. 423. See also Schooner Exchange v. M'Faddon, supra.

40 7 Cr. 423, 431.

41 7 Cr. 423, 427, 429.

42 The Paquete Habana, supra, p. 700.

* This article will appear as one of the studies in Studies in Law in Honor of Orrin Kip McMurray, to be published in honor of Dean McMurray of the School of Jurisprudence of the University of California.

Jurisdiction Following Seizure or Arrest in Violation of International Law

  • Edwin D. Dickinson (a1)


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