ORNELAS, Consul, v. RUIZ et al.

The republic of Mexico applied for the extradition of these petitioners by complaints made under oath by its consul at San Antonio, Bexar county, Tex., under section 5270 of the Revised Statutes. The official character of this officer must be taken as sufficient evidence of his authority, and, as the government he represented was the real party interested in resisting the discharge, the appeal was properly prosecuted by him on its behalf. Wildenhus' Case, 120 U. S. 1, 7 Sup. Ct. 385. As the construction of the treaty was drawn in question, the appeal was taken directly to this court, and the district court rightly required petitioners, under rule 34, to enter into recognizance for their appearance to answer its judgment.

The legislative provisions on the subject of extradition are to be found in sections 5270-5280, constituting title 66 of the Revised Statutes. Section 5270 provides: 'Whenever there is a treaty or convention for extradition between the government of the United States and any foreign government, any justice of the supreme court, circuit judge, district judge, commissioner authorized so to do by any of the courts of the United States, or judge of a court of record of general jurisdiction of any state, may, upon complaint made under oath, charging any person found within the limits of any state, district, or territory, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the secretary of state, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.'

In the extradition case of In re Stupp, 12 Blatch. 501, Fed. Cas. No. 13,563, Mr. Justice Blatchford, then district judge, carefully considered the provisions of the Revised Statutes in respect of the issue of writs of habeas corpus and certiorari by the courts and judges of the United States (Rev. St. §§ 751-761), and the acts of congress from which those sections were brought forward, and pointed out that the general language used is as applicable to a case where the party is in custody under process issued on a final judgment of a court of the United States on a conviction on an indictment, as it is to a case where a party is in custody under any other process; that it could not be successfully contended that these provisions have the effect to authorize a court of the United States, which has no direct power given to it to review the final judgment of another court of the United States in a given case, to review such judgment on the merits under the indirect authority of a writ of habeas corpus; and that, therefore, as the statute in respect of extradition gives no right of review to e exercised by any court or judicial officer, but the magistrate is to certify his findings on the testimony to the secretary of state, that the case may be reviewed by the executive department of the government, the court issuing the writ may 'inquire and adjudge whether the commissioner acquired jurisdiction of the matter, by conforming to the requirements of the treaty and the statute; whether he exceeded his jurisdiction; and whether he had any legal or competent evidence of facts before him, on which to exercise a judgment as to the criminality of the accused. But such court is not to inquire whether the legal evidence of facts before the commissioner was sufficient or insufficient to warrant his conclusion.'

By repeated decisions of this court it is settled that a writ of habeas corpus cannot perform the office of a writ of error, and that, in extradition proceeding, if the committing magistrate has jurisdiction of the subject-matter and of the accused, and the offense charged is within the terms of the treaty of extradition, and the magistrate, in arriving at a decision to hold the accused, has before him competent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purposes of extradition, such decision cannot be reviewed on habeas corpus. In re Luis Oteiza y Cortes, 136 U. S. 330, 10 Sup. Ct. 1031; Benson v. McMahon, 127 U. S. 457, 8 Sup. Ct. 1240; Fong Yue Ting v. U. S., 149 U. S. 714, 13 Sup. Ct. 1016.

As the English extradition act of 1870 (33 & 34 Vict. c. 52) extracts from sections 3 and 11 of which are given below,1 contemplates an independent examination on habeas corpus in every case, if applied for, as in effect part of the proceedings, it has been held that the courts have power to go into the whole matter under the writ so provided for. In re Castioni [1891] 1 Q. B. 149; In re Arton [1896] 1 Q. B. 108. But the legislation of congress in respect of extradition is widely different, and the scope of inquiry on the writ of habeas corpus is necessarily much narrower.

Whether an extraditable crime has been committed is a question of mixed law and fact, but chiefly of fact, and the judgment of the magistrate, rendered in good faith, on legal evidence, that the accused is guilty of the act charged, and that it constitutes an extraditable crime, cannot be reviewed on the weight of evidence, and is final for the purposes of the preliminary examination, unless palpably erroneous in law.

It must be assumed, on this record, that the commissioner was duly authorized; that petitioners were not citizens of the United States, but were citizens of Mexico; that the acts charged were committed in Mexico, and were considered crimes under both governments; that no objection requiring consideration exists in the mode of procedure; and that the commissioner had jurisdiction of the person and of the subject-matter, if, on the evidence, the offenses charged were within the terms of the treaty.

The release of petitioners was ordered on the sole ground that, as appears from the portion of the opinion of the learned district judge contained in the record, this raid was part of 'a political movement, having for its purpose the overthrow of the existing government in Mexico, and that the offenses committed by the petitioners and their associates in their vain and visionary attempt to accomplish their purpose were purely political offenses, within the meaning of the sixth article of the treaty of extradition.' The evidence before the commissioner, from which this conclusion was deduced, tended to show that, on December 10, 1892, a band of armed men to the number of 130 or 140, under the leadership of one Francisco Benevides, passed over the Rio Grande from Texas into Mexico, and attacked about 40 Mexican soldiers, stationed at the village of San Ygnacio, killing and wounding some of them, and capturing others, who were afterwards released, burning their barr cks and taking away their horses and equipments; that private citizens were also violently assaulted, horses belonging to them taken, houses burned, small sums of money extorted from women, clothes, provisions, and goods appropriated, and three citizens kidnapped and carried over the river to the Texas side, finally escaping; that these men were bandits, without uniforms or flag, but with a red band on their hats; and that Garza was not there, and had nothing to do with the expedition. The band remained on the Mexican side of the river about six hours, and recrossed at the village ford. Petitioners were members of the band, and citizens of Mexico, as appeared from the complaints and testimony, though one of them, at least, had resided, a large part of the time, for many years, in Texas. Evidence on behalf of petitioners was adduced indicating that there had been a revolutionary movement on that border under one Garza in 1891; that indictments had been found against the participants for violation of the neutrality laws; and that the aim, object, and purpose of Benevides' men was the same as Garza's, 'to cross over the river and fight against the government.'

In the course of his opinion, the district judge referred to the views of the state department as to the transaction at San Ygnacio. We presume this reference is to the note of Mr. Secretary Gresham to the minister of Mexico, May 13, 1893, in respect of the extradition of Benevides. The facts were reviewed therein by the secretary, and it was held that the acts for which his extradition was asked were 'not of such a purely political character as to exclude them from the operation of the treaty.' The secretary concluded his resum e with those words: 'The idea that these acts were perpetrated with bona fide political or revolutionary designs is negatived by the fact that immediately after this occurrence, though no superior armed force of the Mexican government was in the vicinity to hinder their advance into the country, the bandits withdrew with their booty across the river into Texas.' But extradition was not granted because it appeared that Benevides was a citizen of the United States.

The district judge entertained different views from those of the secretary, and arrived at a different result from that reached by the commissioner on the evidence on which the latter proceeded, and so was induced to substitute his judgment for that of the commissioner, in whom was reposed the authority of decision, unless jurisdiction were lacking.

Can it be said that the commissioner had no choice, on the evidence, but to hold, in view of the character of the foray, the mode of attack, the persons killed or captured, and the kind of property taken or destroyed, that this was a movement in aid of a political revolt, an insurrection, or a civil war, and that acts which contained all the characteristics of crimes under the ordinary law were exempt from extradition because of the political intentions of those who committed them? In our opinion, this inquiry must be answered in the negative.

The contention, that the right of the executive authority to determine when offenses charged are or are not purely political is exclusive, is not involved in any degree; nor are we concerned with the question of the actual criminality of petitioners, if the commissioner had probable cause for his action. It is enough if it appear that there was legal evidence on which the commissioner might properly conclude that the accused had committed offenses within the treaty as charged, and so be justified in exercising his power to commit them to await the action of the executive department. The rule as to probable cause was thus laid down by Mr. Chief Justice Marshall, sitting as a committing magistrate, in Burr's Case: 'On an application of this kind, I certainly should not require that proof which would be necessary to convict the persons to be committed, on a trial in chief, nor should I even require that which should absolutely convince my own m nd of the guilt of the accused; but I ought to require, and I should require, that probable cause be shown, and I understand probable cause to be a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it.' 1 Burr's Trial, 11; Benson v. McMahon, 127 U. S. 462, 8 Sup. Ct. 1240; In re Farez, 7 Blatchf. 345, Fed. Cas. No. 4,645; In re Ezeta, 62 Fed. 972, 981.

We are of opinion that it cannot be held that there was substantially no evidence calling for the judgment of the commissioner as to whether he would, or would not, certify and commit under the statute, and that, therefore, as matter of law, he had no jurisdiction over the subject-matter; and, this being so, his action was not open to review on habeas corpus.

The final order of the district court is therefore reversed, and the case remanded for further proceedings in conformity to law.