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Address of Mr. J. Reuben Clark, Jr., of Washington, D. C.

Published online by Cambridge University Press:  27 February 2017

Abstract

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Friday Afternoon, April 23, 1909
Copyright
Copyright © American Society of International Law 1909

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References

1 Ornelas v. Ruiz, (1895), 161 U. S. 502

2 In re Vamdervelpen, (1877), 14 Blatch. 137.

3 4 Op. Atty.-Gen. 330; In re Adutt, (1893), 55 Fed. 376; Cohn v. Jones, (1900), 100 Fed. 639; In re Frank, (1901), 107 Fed. 272; Benson v. McMahon, (1887), 127 U. S. 457; Grin v. Shine, (1902), 187 U. S. 181; Wright v. Henkel, (1902), 190 U. S. 40.

4 6 Op. Atty.-Gen. 85; id. 432; and see Terlinden v. Ames, (1901), 184 U. S. 270; Ex parte M’Cabe, (1891), 46 Fed. 363; Ex parte Dos Santos, (1835), 2 Brock. 493, Fed. Cas. 4016; U. S. v. Watts, (1882) 8 Sawy. 370.

5 In re Stupp, (1875), 12 Blatchf. 501; Ornelas v. Ruiz, (1895), 161 U. S. 502.

6 In re Cortes, (1889), 136 U. S. 330; In re Reiner, (1903), 122 Fed. 109; U. S. v. Piaza, (1904), 133 Fed. 998.

7 In re Frank, (1901), 107 Fed. 272; In re Grin, (1901), 112 Fed. 790; Grin v. Shine, (1902), 187 U. S. 181; In re Reiner, (1903), 122 Fed. 109; Ex parte Ronchi, (1908), 164 Fed. 288. See In re Rowe, (1896), 77 Fed. 161.

8 U. S. v. Piaza, (1904), 133 Fed. 998.

9 In re Benson, (1888), 34 Fed. 649; Benson v. McMahon, (1887), 127 U. S. 457; In re Adutt, (1893), 55 Fed. 376.

10 Baden, Extradition Convention, 1857.

11 Haiti, Treaty of Amity, etc., 1864; Italy, Extradition Convention, 1868.

12 Belgium, Extradition Convention, 1901 ; Guatemala, Extradition Treaty, 1903; Luxemburg, Extradition Convention, 1883; Nicaragua, Extradition Convention, 1907; San Marino, Extradition Treaty, 1908.

13 France, Extradition Convention, 1843.

14 Austria-Hungary, Extradition Convention, 1856.

15 Netherlands, Extradition Convention, 1887; Ottoman Empire, Extradition Treaty, 1874; Haiti, Extradition Treaty, 1905; Salvador, Extradition Treaty, 1876.

16 Spain, Extradition Treaty, 1908; Portugal, Extradition Treaty, 1908.

17 Argentine, Extradition Treaty, 1896; Brazil, Extradition Convention, 1898; See Switzerland, Extradition Treaty, 1900.

18 Mexico, Extradition Treaty, 1899.

19 Ex parte Van Aernam, (1854), 3 Blatchf. 160; In re Wadge, (1883), 15 Fed. 864; Benson v. McMahon, (1887), 127 U. S. 457; In re Macdonnell, (1873), 11 Blatchf. 170.

20 In re Dugau, (1874), 2 Low. 367.

21 In re Farez, (1870), 7 Blatchf. 345. See In re Kelly, (1885), 25 Fed. 268; Act of 1882, 22 U. S. Statutes at Large, 215.

22 In re Wadge, (1883), 15 Fed. 864; In re Luis Oteira y Cortes, (1889), 136 U. S. 330, 336.

23 in re Wadge, (1883), 15 Fed. 864; and see cases cited under note 24 below.

24 In re Calder, (1853), 6 Op. Atty.-Gen. 91; In re Farez, (1870), 7 Blatchf. 345; In re Macdonnell, (1873), 11 Blatchf. 79, 100; Rice v. Ames, (1900), 180 U. S. 371, 376; and see generally on the question of continuances, In re Heinrich, (1867), 5 Blatchf. 414; In re Ludwig, (1887), 32 Fed. 774; In re Wadge, (1883), 16 Fed. 332, s. c, 15 Fed. 864; Plugge and Barton, (1889), 1 Moore on Extradition, sec. 273, and In re Thomas Barton, (1889), op. cit.

25 In re Heinrich, (1867), 5 Blatchf. 414, following and relying upon In re Kaine, (1853), 3 Blatchf. 1; In re Risch, (1888), 36 Fed. 546.

26 In re Ezeta, (1894), 62 Fed. 972. See In re Farez, (1870), 7 Blatchf. 345; Benson v. McMahon, (1887), 127 U. S. 457; In re Neely, (1900), 103 Fed. 631.

27 Ornelas v. Ruiz, (1895), 161 U. S. 502, 512.

28 In the course of the discussion upon this phase of the subject, a question was raised at the meeting as to whether or not under the general rules of practice, the proposition that the burden of establishing the want of jurisdiction was upon the one pleading it, was sound. The following note collects cases of interest in connection with this question:

In Gould’s Pleadings it is stated, p. 22 (fifth edition), that “as to the mode of pleading to the jurisdiction there is an essential difference to be observed, between a plea to the jurisdiction, in a court of limited, and one of general jurisdiction: in a court of the former class it is sufficient to plead negatively — i. e., to show, by proper allegations, that the court has not jurisdiction: whereas in a superior court it is necessary, both at law, and in equity, — and as well in in criminal as in civil cases, not only to show that the court has not jurisdiction; but also to point out specially some other court which has it.” [Citing and relying upon Crispe v. Viroll, Yelv. 13; Earl of Derby v. Duke of Athol 1 Ves. 202; Bishop of Sodor v. Earl of Derby, Earl of Derby v. Duke of Athol, 2 Ves. 337; Doe ex dimiss. Rust v. Roe, 2 Burr. 1046; The King v. Johnson, 6 East 583; Mostyn v. Fabrigas, 1 Cowp. 161; Rea v. Hayden, 3 Mass. 23.] And see Sec. I, Chitty’s Criminal Law, p. 437, citing authorities; Chitty on Pleading, p. 456.

The rule at common law seems to be as stated by Gould.

The rule under our federal procedure is stated by Bates, Federal Equity Procedure, § 252, Burden of Proof upon the Issue of Jurisdiction, as follows:

“When the plaintiff in his bill avers the jurisdictional facts in conformity to the constitution and laws of the United States, the jurisdiction must be taken as prima facie existing; and if the defendant desires to object to the jurisdiction, the burden is upon him to both allege and prove the facts which are relied upon to defeat the jurisdiction [citing Sheppard v. Graves, 14 How. 505, 517; Foster v. Cleveland, C. C. and st. L. Ry. Co., 56 Fed. 434; National Masonic Acc. Ass’n v. Sparks, 83 Fed. 225]; and, under the Act of 1875, the defendant must show by proof to ‘ a legal certainty ’ that the suit does not really and substantially involve a dispute or controversy within the jurisdiction of the court.” [Citing Barry v. Edmunds, 116 U. S. 550, 556; Deputron v. Young, 134 U. S. 241; Wetmore v. Rymer, 168 U. S. 115, 128. In the last ease the court said: “Applying the law as heretofore stated by this court, in the cases cited, that a suit cannot be properly dismissed by a Circuit Court as not substantially involving a controversy within its jurisdiction, unless the facts, when made to appear on the record, create a legal certainty of that conclusion, we conclude that, in the present case, the want of jurisdiction was not made clear, and that the evidence before that court did not warrant a dismissal of the action for the want of jurisdiction.”]

In Sheppard v. Graves, (1853), 14 How. 505, 510, Mr. Justice Daniel said: “ With respect to the exception taken to the ruling of the District Court, as to the obligation of the defendant to prove his averment of the plaintiff’s residence in the State of Texas, and not of Louisiana, as set forth in the petition, were the decision of this question deemed requisite here, we should say that the true doctrine applicable to the question is this: that although in the courts of the United States it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet wherever jurisdiction shall be averred in the pleadings, in conformity with the laws creating those courts, it must be taken prima facie as existing, and that it is incumbent on him who would impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes; that the necessity for the allegation and the burden of sustaining it by proof, both rest upon the party taking the exception.”

In the next case following, involving the same parties and the same issues, Mr. Justice Daniel said: “ The plaintiff having averred enough to show the jurisdiction of the court, and nothing having been adduced to impeach it, that jurisdiction remained as statedj and the plaintiff could lose nothing by adducing either imperfect evidence, or no evidence at all, in support of that which clearly existed, and which he, under the circumstances, could not be called on to sustain,”

These opinions of Mr. Justice Daniel have been cited and followed in a number of cases. See Foster et al. v. Cleveland, etc., Ry. Co., (1893), 56 Fed. 434; Adams v. Shirk, (1902), 117 Fed. 801; Yocum v. Parker, (1904), 130 Fed. 770; Hunt v. N. Y. Cotton Exchange, (1906), 205 U. S. 322; and see the dissenting opinion of Judge Knowles in Hewitt v. Story, (1894), 64 Fed. 510, 523.

In Foster et al. v. Cleveland, etc., By. Co., supra, the court said: “ Before the Act of 1872 (Rev. St., § 914), beyond doubt, where jurisdiction of the courts of the United States was alleged, the burden, both of allegation and proof, rested upon whomsoever would defeat it. Sheppard v. Graves, 144 How. 505. By the laws of New York, Ohio, and some other states, adopted by this statute, such allegations must be made in the answer. Draper v. Springport, 15 Fed. Rep. 328; Refining Co. v. Wyman, 38 Fed. Rep. 574. If these statutes changed the form, mode, and time of such pleadings, they did not obviate the necessity, nor alter the burden, of proof. Hartog v. Memory, 116 U. S. 588, 6 Sup. Ct. Rep. 521; Refining Co. v. Wyman, 38 Fed. Rep. 574.”

In the recent case of Hunt v. N. Y. Cotton Exchange, supra, Mr. Justice McKenna speaking for an undivided court, commented upon this principle as follows: “ On the issue presented by the plea [to the jurisdiction] the burden of proof was upon the appellant [the defendant], and he was required to establish by a preponderance of the evidence that the amount involved was less than the jurisdictional amount. Sheppard v. Graves, 14 How. 504; Wetmore v. Rymer, 169 U. S. 115; Gage v. Pumpelly, 108 U. S. 164; Adams v. Shirk, 117 Fed. Rep. 801.”

29 Benson v. McMahon, (1887), 127 U. S. 457; Grin v. Shine, (1902), 187 U. S. 181; In re Herres, (1887), 33 Fed. 165; In re Neeley, (1900), 103 Fed. 626; In re Grin, (1901) 112 Fed. 790.

30 See record in Rudovitz case, 1908, Commissioner Foote, Chicago.

31 The language of the treaties is as follows: “ The provisions of this treaty shall not apply to any crime or offense of a political character.” — Salvador, Extradition Treaty, 1870; “ If it be made to appear that extradition is sought with a view to try to punish the person demanded for an offense of a political character, surrender shall not take place.” — Russia, Extradition Convention, 1887.

32 France, Extradition of fugitives from justice, November 9, 1843; Austria-Hungary, Extradition, July 3, 1856; Haiti, Amity, commerce and navigation, and the extradition of criminals, November 3, 1864; Turkey, Extradition, August 11, 1874; Baden, Mutual surrender of criminals, January 30, 1857; Ecuador, Extradition, June 28, 1872; Netherlands, Extradition of criminals, June 2, 1887; Belgium, Mutual extradition of fugitives from justice, October 26, 1901; Guatemala, Mutual extradition of fugitives from justice, February 27, 1903; Luxemburg, Extradition of criminals, October 29, 1883; Haiti, Mutual extradition of criminals, August 9, 1904; Nicaragua, Extradition of criminals, March 1, 1905; San Marino, Extradition, January 10, 1906.

33 Japan, Extradition of criminals, April 29, 1886; Russia, Extradition of criminals, March 16/28, 1887; Colombia, Extradition of criminals, May 7, 1888; and see treaties collected in the next note.

34 Norway, Extradition of criminals, June 7, 1893; Denmark, Extradition of fugitives from justice, January 6, 1902; Peru, Extradition of criminals, November 28, 1899; Servia, Mutual extradition of fugitives from justice, October 25, 1901; Sweden, Extradition of criminals, January 14, 1893; Panama, Mutual extradition of criminals, May 25, 1904; Brazil, Extradition of criminals, May 14, 1897, and May 28, 1898; Bolivia, Extradition of fugitives from justice, April 21, 1900; Chile, Extradition of criminals, April 17, 1900; Great Britain, Extradition convention, July 12, 1889; Denmark, Extradition of fugitives from justice, January 6, 1902; Cuba, Mutual extradition of fugitives from justice, April 6, 1904.

35 In re Kaine, (1852), 14 How. 103, 145; In re Heilbronn, (1854), 11 Fed. Cas. 6,323; see also to the same point In re Arton, [1896], L. R. I. Q. B. 108.

36 In re Ezeta, (1894), 62 Fed. 972.

37 Ex parte Kaine, (1853), 3 Blatchf. 1.

38 In re Vandervelpen, (1877), 14 Blatchf. 139.

39 Moore on Extradition, §§ 374–376; The Pouren Case.

40 R. S., § 5270.

41 Moore on Extradition, § 361

42 Moore on Extradition, §§ 364 et seq.

43 In re Stupp, (1875), 12 Blatchf. 501.

44 Ornelas v. Ruiz, (1895), 161 U. S. 502.

45 Ex parte Kaine, (1853), 3 Blatchf. 1; In re Macdonnell, (1873), 11 Blatchf. 170.

46 Chile, Extradition treaty, 1900; Cuba, Extradition treaty, 1905; Denmark, Extradition treaty, 1902; Panama, Extradition treaty, 1905; Peru, Extradition treaty, 1899; Servia, Extradition treaty, 1901; Sweden and Norway, Extradition of criminals, 1893; and see Great Britain, Extradition convention, 1889.

47 Ex parte Kaine, (1853 ), 3 Blatchf. 1, 8.

48 Moore, Digest of International Law, § 604.

49 Idem.

50 Idem.

51 In re Castioni, (1890), 1 Q. B. Div. 149.