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62 F. 972 District Court, N.D.
California. In re EZETA. In re
BOLANOS, In re COLOCHO. In re CIENFUEGOS. In re BUSTAMANTE. Nos. 11,095-11,099. September 22, 1894. [*976] COUNSEL: Pierson & Mitchell, for the republic of
Salvador. Charles Page, Horatio S. Reubens, and Gonzalo De Quesada, for
defendants. Charles A. Garter, U.S. Atty., for the United States. JUDGE: MORROW, District Judge. These matters are before me, sitting as a committing magistrate,
to determine upon the application of the republic of Salvador for the
extradition, under its treaty with the United States, of Antonio Ezeta, Leon
Bolanos, Jacinto Colocho, Juan Cienfuegos, and Florencio Bustamante, for trial
in Salvador upon five charges; three being for murder, one for attempt to murder,
and one for robbery. Upon the hearing it was claimed by the refugees—
First, that there was not sufficient evidence amounting to probable cause to
justify the holding of the accused; and, second, that all the offenses charged,
with the exception of the charge of attempt to murder made against Juan
Cienfuegos, assuming that probable cause existed, were political acts, and for
that reason not extraditable, by the terms of the treaty. The constitution of the republic of Salvador provides that the president
and vice president shall be elected for a term of four years. Gen. Francisco
Menendez was the president, and Dr. Rafael [*977] Ayala vice president, for the
term commencing March 1, 1887, and ending March 1, 1891. On the night of June
22, 1890, Gen. Carlos Ezeta appeared at the city of San Salvador, the capital
of the republic, at the head of an armed force of 600 men, and proclaimed a
revolt against the then existing government. President Menendez was giving a
banquet at the time, celebrating the anniversary of his triumphant occupation
of the capital five years before. In the tumult that followed, he was either
slain by his political enemies, or he died suddenly from the effect of the
excitement caused by the hostile demonstration. The government of Menendez was
overthrown, and Gen. Carlos Ezeta proclaimed provisional president by the army.
He immediately assumed the reins of government, and, with the assistance of his
brother, Gen. Antonio Ezeta, proceeded to establish his executive authority,—
not, however, without serious opposition. He was called upon to face an armed
demonstration made against him on the part of Guatemala, and to encounter
resistance at home, headed by Gen. Rivas, supporting the claims of vice
president Ayala for the constitutional succession to the presidency. The
Ezetas, however, were successful in their military operations. In a sanguinary
struggle with Gen. Rivas for the capital, the latter was defeated, and
afterwards shot as a traitor. Through the intervention of the members of the
foreign diplomatic corps, Guatemala was induced to agree to peace on condition
that the people of Salvador should be allowed a free expression in the choice
of their president; and, in September, 1890, Gen. Carlos Ezeta was elected
provisional president of the republic, and, on the first day of March, 1891, he
was duly installed as president, with Gen. Antonio Ezeta as vice president, for
the full term of four years. Gen. Antonio Ezeta afterwards became commander in
chief of the army. Reference to other disturbances that followed will not be
necessary. It is sufficient for the present purpose to say that the Ezeta
government managed, by the use of vigorous measures in suppressing opposition,
to continue in power down to the time of the occurrences which have been
described in the testimony, and deemed relevant and material in the present
examination. A knowledge of what has just been stated, pertaining to the recent
history of Salvador, drawn from public reports, appears to be necessary, however,
to a clear understanding of the facts involved in the charges made against the
defendants. On the 29th day of April, 1894, a revolution against the Ezeta
government broke out in the military garrison at Santa Ana, a city in the
western part of the republic, and distant about 60 miles from the capital. The
revolution appears to have involved at first only a regular battalion of 500
men, stationed at that place, but it soon spread to other departments of the
republic. Gen. Antonio Ezeta, the commander in chief, was stationed at this
time at Santa Ana, as was also Gen. Jacinto Colocho, the commander of the
garrison. After an unsuccessful attempt to recover the garrison, these
officers, with a few men, retreated to Coatepeque, a place about 12 miles nearer
the capital, here a force was gathered, and from which point operations were
directed against the revolutionary forces. In an engagement [*978] that took place
on May 3d, Gen. Ezeta was wounded, and Gen. Bolanos became commander of the
army. On May 23d, Gen. Antonio Ezeta, having recovered from his wounds, resumed
command, and thereafter directed the operations of the government forces in
that department. In the meantime the revolution had gained strength in other
departments of the republic, under the leadership of Yen. Rafael Antonio
Gutierrez, who has since become president; and on June 4, 1894, Gen. Carlos
Ezeta fled from the capital, and taking passage in a vessel at La Libertad for
Panama, he proceeded (so it is reported) to New York, and thence to Europe.
Gen. Antonio Ezeta thereupon became the acting president. On June 4th he and
his army retreated in the direction of Santa Tecla, or New San Salvador,
arriving there on June 5th, and on the 6th the retreat was continued to the
port of La Libertad. Between April 29th and June 6th a number of battles and
skirmishes took place between the contending forces, in which several hundred
on both sides were killed and wounded. The force under Gen. Antonio Ezeta
numbered at one time about 1,700 men, but it was reduced by desertions, and
losses in killed and wounded, to a few hundred, when the remnant of the army
under the immediate command of Gen. Colocho, reached La Libertad. While these
operations were in progress the government of the United States dispatched the
United States steamer Bennington from California to Salvador, to look after the
interests of citizens of the United States in that country during the
revolution. This vessel was at the port of La Libertad when Gen. Antonio Ezeta
and his officers and men reached that place. Among those officers, who had
taken part in the military operations on the part of the government under Gen.
Antonio Ezeta, were Gens. Bolanos and Colocho, previously mentioned; Lieut.
Col. Juan Cienfuegos, on the staff of Gen. Ezeta; and Capt. Florencio
Bustamante, field commissary. Upon the arrival of Gen. Antonio Ezeta at La
Libertad, he proceeded to the american consulate, and requested asylum on board
the Bennington until the arrival of the steamer San Blas, on its way to Panama.
The message was signaled to Capt. Thomas, the commander of the Bennington, who
granted the request, and Gen. Ezeta immediately proceeded on board the vessel.
Later on in the same day, 16 others of Gen. Ezeta’ company, including
the officers I have named, went alongside of the Bennington, in a lighter, and
applied for asylum. This request was at first refused, on account of a lack of
accommodations on board the vessel; but, the pursuing revolutionary forces
threatening to follow the fugitives under the beam of the Bennington, they were
taken on board. Three days later the steamer San Blas arrived at La Libertad,
when the commander of the Bennington proceeded to make arrangements for the
transfer of the fugitives on board that vessel. The arrangements were
interrupted, however, by commissioners representing the successful
revolutionary party, requesting that they should have an opportunity to make a
demand for the extradition of the fugitives on charges of murder, arson,
robbery, and rape. The fugitives were accordingly detained on board the
Bennington, and, in view of the disturbed condition of affairs in Salvador,
this concession was [*979] deemed by Capt. Thomas a courtesy to the new
government, of some consequence, in the favorable influence it would probably
have upon the authorities in securing the safety of American citizens residing
in that country. Upon the arrival of the next vessel at La Libertad, bound for
Panama, the fugitives again requested permission to leave the Bennington, that
they might take passage on the departing steamer; but the request was refused
by Capt. Thomas, under instructions from the secretary of the navy. The
Bennington remained at La Libertad until July 25, 1894, during which time no
extradition proceedings other than a demand by the government of Salvador for
the surrender of the fugitives appear to have reached Capt. Thomas. The vessel
then proceeded north with the five fugitives on board, who have been the
subject of these proceedings. What became of the other 12 is not disclosed by
the testimony in the case. The Bennington arrived at Acapulco, Mexico, July
30th or 31st, where a request on the part of the fugitives to be allowed to
leave the vessel was again refused. Leaving Acapulco August 2d, the Bennington
arrived off the harbor of San Francisco on the 14th of August. The government
of Gen. Gutierrez, as provisional president of Salvador, was formally
recognized by the president of the United States on August 3, 1894, by the
reception of Dr. Horacio Guzman as envoy extraordinary and minister
plenipotentiary of the republic of Salvador. This last fact may be, in part, an
explanation, and a sufficient reason, why the fugitives were detained on board
the Bennington until the arrival of the vessel at this port; but, however that
may be, that question is not before me for consideration. In passing upon the
plea to the jurisdiction I declined to enter upon any inquiry as to the conduct
of the navy department in bringing the fugitives to San Francisco. The fact
that they were found by the marshal in this district was, in my opinion,
sufficient for the purpose of this examination; and I now only refer to this
previous history, that the charges against the accused may be considered in the
light of all the surrounding circumstances. The authority for the present examination is derived from the
statutes of the United States, the treaty between the United States of America
and the republic of Salvador, and a mandate issued by the department of state
under date of August 11, 1894, which recites that an application had been made
in due form, to the proper authorities for the arrest of Antonio Ezeta, Leon
Bolanos, Jacinto Colocho, Juan Cienfuegos, and Florencio Bustamante, charged
with the crimes of murder, robbery, and arson. The certificate further recites
that it was alleged that the parties named were fugitives from the justice of
Salvador, and were believed to be within the jurisdiction of the United States;
that it was proper they should be apprehended, and the case examined in the mode
provided by the laws of the United States; that those facts were certified to
the end that the evidence of the criminality of the accused might be heard and
considered, and, if deemed sufficient to sustain the charges, the same might be
certified, together with a copy of all the proceedings, to the secretary of
state, that a warrant might [*980] issue for their surrender, pursuant to
said treaty stipulation. In conformity with this mandate, Eustorjio Calderon,
the consul of Salvador at this port, on the 22d day of August, 1894, filed five
separate complaints against the accused, charging Juan Cienfuegos with an
attempt to murder one Andres Amaya on January 3, 1894, in front of the house
occupied by said Amaya as his residence in the city of San Salvador; Leon
Bolanos and Florencio Bustamante, with the murder of four persons, names
unknown, on the 29th of May, 1894, in the gulch of Las Pulgas, in the canton of
Primavera; Antonio Ezeta, Leon Bolanos, Jacinto Colocho, Juan Cienfuegos, and
Florencio Bustamante, with the murder of one Casimiro Henriquez on the 3d of
June, 1894, in the village of Coatepeque; Antonio Ezeta, with the robbery of
Jose Ruiz and Evaristo Ambrosy, constituting the firm of Ambrosy & Ruiz,
having in charge the agency of the International Bank of El Salvador &
Nicaragua, of the sum of $2,584, on the 3d (5th) of June, 1894, in the city of
Santa Tecla, or New San Salvador; Antonio Ezeta and Juan Cienfuegos, with the
murder of Tomas Canas on June 6, 1894, on the public road leading from the city
or town of Santa Tecla, or New San Salvador, to the city or town of La
Libertad. Upon these complaints, warrants were issued, and the accused brought
before me for examination. After the testimony on the part of the government of
Salvador had been introduced, it appeared insufficient to hold Jacinto Colocho
on the charge preferred against him, and accordingly, on motion of counsel, he
was discharged. Testimony was thereupon introduced on the part of the remaining
defendants, and the question now is whether, upon the facts proven, and the
rules of law applicable thereto, they, or any of them, should be held for
extradition, under the terms of the treaty. For the purpose of ascertaining
whether the evidence sufficiently establishes the charges of crime against the
accused to justify me, as a committing magistrate, in holding them for
extradition, it becomes necessary to determine at the outset the degree of
proof required to support the accusations for the purpose of these proceedings. Section 5270 of the Revised Statutes of the United States,
relating to extradition, provides that: “If, on such hearing, he (the committing magistrate)
deems the evidence sufficient to sustain the charge under the provisions of the
proper treaty or convention, he shall certify the same,” etc. This section had its origin in section one of the act of August
12, 1848 (9 Stat.at Large, 301). The treaty under consideration was ratified in
1874, and provides that fugitives from justice shall be delivered up only
“upon such evidence of criminality as according to the laws of the
place where the fugitive or person so charged shall be found would justify his
or her apprehension and commitment for trial if the crime had been there
committed.” Section 1014 of the Revised Statutes of the United States,
relating to the arrest of offenders charged with any crime or offense against
the United States, provides that they may be arrested and imprisoned, or
bailed, “agreeable to the usual mode of process against offenders in
such state.” [*981] The defendants having been found within the territory of
the state of California, the law of this state must furnish the rule of
procedure in this examination. The Penal Code of California, under the title
relating to proceedings in criminal actions, provides as follows: “If, after hearing the proofs, it
appears either that no public offense has been committed, or that there is not
sufficient cause to believe the defendant guilty of a public offense, the
magistrate must order the defendant to be discharged, * * * .&3148; Section 872 provides: “If, however, it appears from the
examination that a public offense has been committed, and there is sufficient
cause to believe the defendant guilty thereof, the magistrate must make or
endorse on the deposition an order, signed by him, to the following effect: It
appearing to me that the offense in the within depositions mentioned (or any
offense according to the facts, stating generally the nature thereof) has been
committed, and that there is sufficient cause to believe the within-named A. B.
guilty thereof, I order that he be held to answer to the same,” etc. The degree of proof that will enable the committing magistrate to
determine that there is sufficient cause to believe the defendant guilty of a
public offense has been discussed by eminent judicial authority. Chief Justice
Marshall, sitting as a committing magistrate in the Aaron Burr Case (1
Burr’s Trial, 11), stated a rule which has been followed in this
country. He said: “On an application of this kind, I
certainly should not require that proof which would be necessary to convict the
person to be committed, on a trial in chief, nor should I even require that
which should absolutely convince my own mind 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 of proof, furnishing good
reason to believe that the crime alleged has been committed by the person
charged with having committed it.” Mr. Justice Washington, in defining the expression
“probable cause,” said it was “a reasonable ground
of suspicion, supported by circumstances sufficiently strong in themselves to
warrant a cautious man in the belief that the person accused is guilty of the
offense with which he is charged.” Munns v. Dupont, 3 Wash.C.C. 31, Fed.
Cas. No. 9,926. Judge Blatchford, in the Case of Farez, 7 Blatchf. 345, Fed.
Cas. No. 4,645, fully confirms this view of the law as to the evidence of
criminality required in an extradition case, in the following language: “To say that the evidence must be
such as to require the conviction of the prisoner if he were on trial before a
petit jury should, if applied to cases of extradition, be likely to work great
injustice. The theory on which treaties for extradition are made is that the
place where a crime was committed is the proper place in which to try the
person charged with having committed it; and nothing is required, to warrant
extradition, except that sufficient evidence of the fact of the commission of
the crime shall be produced to justify a commitment for trial for the crime. In
acting under the thirty-third section of the judiciary act of 1789 (section
1014, Rev. St.) in regard to offenses against the United States, a committing
magistrate acts on the principle that, in substance, after an examination into
the matter, and a proper opportunity for the giving of testimony on both sides,
there is reasonable ground to hold [*982] the accused for trial. The contrary
view would lead to the conclusion that the accused should not be given up to be
tried in the country in which the offense was committed,— the country
where the witnesses on both sides are presumptively to be found,— but
should be tried in the country in which he may happen to be found. Such a
result would entirely destroy the object of such treaties.” To the same effect is the doctrine, declared in Re Wadge, 15 Fed. 864, 16 Fed.
332; in Re Macdonnell, 11 Blatchf. 170, Fed. Cas. No. 8,772; in Re Behrendt, 22
Fed. 699. In the case of Benson v. McMahon, 127
U.S. 462, 8 Sup.Ct. 1240, Mr. Justice Miller, delivering the opinion of
the court in that case, said: “The subject of what proof shall be
required for the delivery upon requisition of parties charged with crime is
considered in article 1 of the treaty (with Mexico), in regard to which it is
provided “that this shall be done only when the fact of the commission
of the crime shall be so established as that the laws of the country in which
the fugitive or the person so accused shall be found would justify his or her
apprehension and commitment for trial if the crime had been there
committed.” Taking this provision of the treaty, and that of the
Revised Statutes above recited, we are of the opinion that the proceeding
before the commissioner is not to be regarded as in the nature of a final trial
by which the prisoner could be convicted or acquitted of the crime charged
against him, but rather of the character of those preliminary examinations
which take place very day in this country before an examining or committing
magistrate for the purpose of determining whether a case is made out which will
justify the holding of the accused, either by imprisonment or under bail, to
ultimately answer to an indictment, or other proceeding, in which he shall be
finally tried upon the charge made against him.” In the examination, therefore, of persons charged with being
fugitives from justice under a treaty stipulation such as we find in the
present case, the evidence of criminality must conform to, and be weighted and
judged by, the laws of this country, and particularly the laws of the place
where the accused is found. The evidence of criminality, to justify holding the
accused for the action of the executive upon surrender, need not be such as
would be required at the trial of the accused, but must be such evidence as ordinarily
obtains at a preliminary examination, and amount to probable cause of his
guilt; probable cause being such evidence of guilt as would furnish good reason
to a cautious man, and warrant him in the belief, that the person accused is
guilty of the offense with which he is charged. The first charge, in point of time, is that against Juan
Cienfuegos, alias La Chucha. He is accused with attempting to murder one Andres
Amaya on the 3d of January, 1894, at the city of San Salvador, in front of the
house used by the said Amaya as his residence. The depositions introduced on
the part of the republic of Salvador contain the statement of Andres Amaya, the
party aggrieved; the testimony of Thomas Quijano, a police officer who arrested
Cienfuegos; and a statement by Cienfuegos himself. The deposition of Quijano
and the depositions, so called, of Amaya and Cienfuegos, were all taken on the
4th day of January, 1894, the day following the alleged attempt to murder. The
statement of Andres Amaya [*983] is briefly, that, at 10:10
o’clock on the evening of the 3d of January one Manuel Casin offended
him at his own house, where he resides; that Casin was accompanied by four or
five other persons; among these was Juan Cienfuegos, whom he recognized
perfectly well; that this group were disguised; that they discharged their
revolvers at him just at the moment he happened to be on the porch of his
house, conversing with one Don Mariano Moran; that Cienfuegos was the one who
fired the first shot, pointing directly at the declarant; that immediately
afterwards the other persons discharged their revolvers; that he threw himself
quickly on the floor, the last shot passing near his ear; that they then left;
that Manuel Casin, about six days previously, struck him from behind with a
revolver, discharging a shot at him without injury; that Casin, for several
days, has been waylaying the declarant, to kill him; that the emnity which
Manuel Casin bears towards him originated in the declarant having, as
departmental revenue collector, prohibited him from entering on horseback
inside a building occupied for the management of the office and for the deposit
of distilled spirits, and from trampling on the guard. Thomas Quijano deposed
that while on duty as a police officer, near the residence of Amaya, he heard
the report of several shots; that he proceeded quickly to that place, and saw
three persons running, whom he did not know; he found Cienfuegos and another
person together; that the person in company with Cienfuegos succeeded in making
his escape; that he managed to capture Cienfuegos; that Cienfuegos was carrying
a revolver in his hand, which he handed to him; that three shots had been
discharged from it; that Cienfuegos confessed to him at that moment that those
shots had been fired by him at Don Andres Amaya; that he cannot identify the
person in company with Cienfuegos; that he delivered the revolver to the
police, and gave an account of the matter. The record which constitutes the
letters rogatory requesting the surrender of Cienfuegos also contains a
statement to the authorities made by Cienfuegos upon his arrest. This statement
is designated at the conclusion as a deposition. He stated that he was on his
way to the theater in company with Don Manuel Casin, Dante del Papa, baritone
of the present opera troupe, Antonio Guicho, a gentleman named Tierno, and also
another person; that when they were passing opposite the porch where Andres
Amaya resides the latter was in the company of another person, whom he was
unable to recognize; that Amaya directed a shot from his revolver at the group;
that Manuel Casin instantly fired a shot, and afterwards two more; that the
declarant fired two shots at the said Amaya; that he noticed Amaya close the
porch, instantly; that all his companions scattered; that he alone appeared
before Thomas Quijano, the first officer of police, and handed him his
revolver, and told him that he had fired two shots at Amaya; that he saw that
Amaya saved himself from the shots by placing himself behind the end column of
the porch; that all of his companions wore cloaks, except Casin, who wore a
sort of an overcoat, and the declarant, who was dressed in citizen’
clothes; that during the two days prior thereto he was constantly escorting Don
Manuel Casin, by order of Gen. [*984] Antonio Ezeta, with instructions to
guard Manuel Casin so that no one should harm him, and especially in
consequence of a misunderstanding which existed between Manuel Casin and Andres
Amaya; that he fired the shots at Senor Don Andres Amaya with a view of
defending Don Manuel Casin. Upon this evidence of criminality, the record shows that an order
was made by the court No. 1 of first instance, at San Salvador, on the 5th day
of January, 1894, that the suspected party, Don Juan Cienfuegos, should remain
in temporary custody, there being sufficient cause therefor, and that the
record of the proceedings should be submitted to the alcalde. Nothing further
appears, from the depositions and record, relative to what other proceedings,
if any, were taken against the accused, except that on June 22, 1894, an order
was made by the court No. 1 of first instance that letters rogatory should
issue to the commander of the Bennington for the surrender of Juan Cienfuegos
for the alleged attempt to murder Andres Amaya. The accused, in his testimony
before me, testified to substantially the same facts as are contained in the
statement made by him upon his arrest. He admits that he shot at Don Andres
Amaya at the time and place stated, and while he was in company with Manuel
Casin, but he justifies himself by swearing that he shot only after Amaya had
opened fire on them; and that when he did shoot he did so to defend and protect
the life of Manuel Casin, whose person he had been detailed to guard by the order
of his chief officer, Gen. Antonio Ezeta; that his orders were to dress in
citizen’ clothes, and to place himself at the order of Manuel Casin,
and that he should defend him at all hazards, and, before he should allow him
to be killed, that he should first allow himself to be killed. He further
testified that he was taken, upon his arrest, to the police station, and was
there asked to make a statement, which he did; that soon afterwards Gen.
Antonio Ezeta arrived at the station, and procured his release; that an hour
after that he was rearrested by order of President Carlos Ezeta; that he was
put in a place where the flags are kept at the police station; that he remained
there for three days, and was then released by instructions conveyed by the chief
of staff from President Carlos Ezeta; that since that release he has never been
rearrested for the same charge. He also testified that he knew Amaya by sight,
but had never talked with him. A technical objection is made to the depositions of Amaya and Cienfuegos.
It is urged that they are but mere statements, and not depositions, and that,
not being depositions, whatever they contain is not evidence against the
accused. This contention is based upon the recitals as to the imposition of an
oath to tell the truth, contained in the introductory part of the depositions.
It appears that in all of the depositions where a witness, not a party
interested, is sworn, the following recital occurs as to the administration of
the oath, varying somewhat in phraseology: “There being present the
witness— , to whom I read the penalties incurred by those who testify
falsely in criminal proceedings, and, upon being sworn in legal form, he
promised to tell the truth, he stated,” etc. [*985] In the statement of Andres Amaya the introductory recital
is in the following form: “A man who felt aggrieved appeared,
and I instructed him as to his obligation to tell the truth, upon being
interrogated by competent authorities, and he promised to do so, declaring.”
etc. That of Cienfuegos reads: “There being present a man mentioned
in this proceeding, to whom I impose the obligation of telling the truth, upon
being interrogated by competent authority, and he promised to do so,
saying,” etc. A perusal of all the depositions introduced discloses the fact
that it does not distinctly appear that the complainant or party aggrieved
takes an oath in the same form as that of a witness. But in other respects the
depositions are similar, and the conclusion in all of them is substantially the
same. In every one the declarant appears to have been interrogated, and it is
significant that the proceeding is called a deposition at the conclusion.
Section 5 of the act of August 3, 1882 (22 Stat.at Large, 216), provides: “That in all cases where any
depositions, warrants, or other papers or copies thereof shall be offered in
evidence upon the hearing of any extradition case under title sixty-six of the
Revised Statutes of the United States, such depositions, warrants, and other
papers, or the copies thereof, shall be received and admitted as evidence on
such hearing for all the purposes of such hearing if they shall be properly and
legally authenticated so as to entitle them to be received for similar purposes
by the tribunals of the foreign country from which the accused party shall have
escaped, and the certificate of the principal diplomatic or consular officer of
the United States resident in such foreign country shall be proof that any
deposition, warrant or other paper or copies thereof, so offered, are
authenticated in the manner required by this act.” It appears by the stipulation filed by counsel in these cases that
all the depositions and other papers offered in evidence on the part of the
republic of Salvador are so certified. This certificate covers the statement or
deposition of Andres Amaya, and under the statute it must be received and
admitted as evidence for all the purposes of the hearing. While the depositions
were being read, objections were offered to certain portions of the testimony
of some of the witnesses on the ground that the evidence was either
incompetent, irrelevant, or immaterial, as, for instance, that the testimony
was clearly hearsay. I sustained objections of this character, and on motion
the testimony was struck out; but, doubting the propriety of this ruling, I
afterwards suggested that a motion to strike out was unnecessary, as I would
disregard testimony deemed in admissible under the rules of evidence prevailing
in this country. This ruling was not intended, however, to go any further than
to indicate the rules of evidence applicable to the substance of the testimony.
The form of the depositions or other papers is clearly covered by the
certificate under the act of congress. But the statement of Andres Amaya, if
deemed defective in failing to show that the deponent had been sworn to tell
the truth, is not of itself essential to establish the charge against
Cienfuegos. The deposition of the police officer, Thomas Quijano, which is
admittedly free from the alleged defect, serves, in my opinion, to establish a
[*986] probable cause
of guilt, sufficient to justify me in holding the defendant for extradition;
certainly so, in view of his admissions. As the act was committed some four months before the revolution
began, it is free from any political aspect, so far as the act charged itself
is concerned; and the only question to be determined is whether the evidence of
criminality amounts to probable cause of the guilt of the accused. As stated
above, the admission of the accused, both as it is contained in the record and
as made at the hearing, that he shot at Amaya, removes any doubt upon this
question. It appears to me that, even in the absence of the admissions of the
accused, the evidence of criminality presented is sufficient to amount to
probable cause. His justification— that he was merely acting in
obedience to the orders of his superior officers in protecting the life of
Casin— cannot here be considered. What that defense would amount to
upon the trial of the case in Salvador cannot now be determined, nor is it
necessary. The fact that he fired the shots in defense of himself and Casin is
obviously a matter of defense, to be presented in the tribunals of the republic
of Salvador upon a full hearing of the case, where all the witnesses of the
affair may be secured. The testimony for the prosecution establishes the fact
that the act charged was in fact committed. And as this evidence amounts to
probable cause, the inquiry need go no further on this preliminary examination,
unless there is some explanation to be made which does not contradict or impugn
the testimony on the part of the prosecution, but serves to explain it so as to
show that the consequence otherwise deducible does not follow. This I
understand to be the law declared in U.S. v. White, 2 Wash.C.C. 29, Fed.
Cas. No. 16685. and in Catlow’ Case, 16 Op.Attys.Gen. 642; 1 Moore,
Extrad.p. 528. Counsel for the defendant contends that as Cienfuegos was released
by order of his superior officers, and has never been prosecuted, or any steps
taken against him, for the part he took in the alleged attempt to murder Andres
Amaya, until after he had taken refuge on board the Bennington, this revival of
the prosecution is nothing more or less than an effort on the part of the
present government of Salvador to secure the person of the accused for the
purpose of wreaking their vengeance on him for the part he took against them in
the late war. This argument is not, perhaps, destitute of force, but it is not
a matter of which I can properly take cognizance, in view of the other features
of this particular case. He was not tried for the offense, nor was he pardoned,
but, being discharged from prison by order of President Don Carlos Ezeta, he
appears to have enjoyed a privilege conferred by executive authority equivalent
to an order entered only judicial authority in this country, permitting the
accused to be discharged from custody on his own recognizance. If this is a correct
interpretation of the proceedings stated in the record, then Col. Cienfuegos
has continued subject to arrest and trial upon this charge. If, as is claimed,
he is being extradited for a political purpose, that is a matter which can very
properly be called to the attention of the executive when he comes to review my
action. [*987] The next charge is that against Leon Bolanos and Florencio
Bustamante for the hanging on the 29th of May, 1894, of four unknown persons at
Las Pulgas ravine. The accusation rests on the deposition of one witness, named
Leopold Maza. This deposition was taken on June 24, 1894. The witness deposes
“that what he knows from ocular evidence only is” that
Florencio Bustamante, alias Monkey in the Hole, by order of Leon Bolanos, hung
four persons, in Las Pulgas ravine, at the end of May, at 11 o’clock
a.m.; that he does not know the names of these persons, but he knows that they
were from the volcano of Santa Ana. The witness then proceeds to assign a
motive for the hanging, which he says was that some soldiers had found these
persons hidden in certain little houses located in Primavera canton; that Leon
Bolanos carried away said persons to a house situated in Las Pulgas ravine, to
take their depositions, and, said persons having declared that they had
concealed themselves in consequence of not having taken part either for or
against the revolution, Bolanos ordered Bustamante to hang them. The witness
then goes on to state what took place at the hanging. He says that Bustamante
took these persons out of the house, carrying one of them bound by the neck;
that, having come to a post in the yard of the house, Bustamante tied the
lasso, and dragged him by his feet, in order to hasten the execution; that he
accomplished their death; that Bolanos was present. The witness then continues
his testimony by making statements intended to implicate Antonio Ezeta and the
defendants connected with this particular charge with the commission of many
other offenses, and with general lawlessness. These latter statements are
manifestly based upon public rumors, and are therefore hearsay. Although the
witness stated at the close of his deposition that one Rodrigo Escobar and
others, whose names he did not recollect, could testify in the matter, yet the
deposition of Rodrigo Escobar, contained in the record, makes not the slightest
allusion to the hanging in question, and the testimony of no other witness
bearing upon this accusation is produced. It may be said that, in the
deposition of Carmen Quinteros, reference is made to this charge, but she bases
her knowledge of the facts she relates upon the publicity of the affair in the
canton. Her testimony is consequently without value. I must therefore rely upon
the testimony of this solitary witness, Maza, to ascertain whether probable
cause of the guilt of the accused is made out. The motive testified to by him,
if indeed such evidence could be accepted as against these defendants, is at
best but hearsay, for the witness is very careful to say at the outset of his
testimony “that what he knows from ocular evidence only is”
that Bustamante hung four persons by order of Bolanos. This reservation on the
part of the witness would limit his knowledge of what took place to the hanging
itself, and it is difficult to understand, without some explanation, how he
could know, by ocular means only, that an order was given at all, or what the
motive for the alleged hanging was. Assuming that he did have such knowledge,
it must have been based upon information received from others, and, being
hearsay, it is not admissible against Bolanos. [*988] This is the
only evidence in the testimony of this witness implicating Bolanos in any way
with the alleged murder of these four persons. The fact that Bolanos may have
been present at the alleged hanging, in the absence of any testimony, other
than hearsay, that he took any part or contributed in any way to the execution
is clearly not sufficient. The evidence contained in the deposition does not,
in my judgment, so connect Bolanos with the alleged hanging as to warrant me in
saying that I have good reason to believe that he is probably guilty. While the
testimony as to Bustamante is more specific and certain, yet, taken as a whole,
it is also far from being satisfactory. I am not inclined, in view of the
inconsistencies and palpable hearsay testimony contained in the deposition, to
place much reliance on the uncorroborated testimony of this witness. The fact
cannot be overlooked that although he stated that one Rodrigo Escobar and
others, whose names he did not recall, could testify in this matter, the former
person, despite the fact that in his deposition he takes a wide latitude in
making charges against individuals, and as to the character of crimes
committed, yet fails to say a single word to substantiate the witness Maza as
to this charge. In view of the magnitude of the crime, it is singular that, if
four persons were in fact hung upon such slight provocation, more satisfactory
evidence was not produced. A committing magistrate would not be justified, in
my opinion, in holding for extradition these accused persons, on so serious a
charge, upon such unsatisfactory evidence. The accused deny that they had
anything to do with the hanging of four men, or any men or man, at the time and
place indicated, and under the circumstances detailed. They testify that a
battle took place on that day, that there were some of their soldiers killed
and wounded, but that they captured no prisoners. It may be observed that the
testimony of the witness Maza was not taken until the 24th of June, 1894,
nearly a month after the alleged hanging took place, and nearly three weeks
after the accused had sought refuge on board the Bennington. The further fact
that the identity of the four persons said to have been hung was not
established tends to the conclusion that the whole affair is involved in too
much uncertainty to warrant a commitment of the accused for the offense
charged. But, whatever may be the actual facts concerning this affair, hostilities
were in progress between the governmental and revolutionary forces in the
vicinity of Las Pulgas ravine at that time; and the testimony shows that the
acts of the accused, assuming that the testimony of this witness is true, were
associated with the military operations at that place. It remains, therefore,
to determine that feature of the case, which will be done at a later stage of
this opinion. The third charge is that against all of the fugitives, viz.
Antonio Ezeta, Leon Bolanos, Jacinto Colocho, Juan Cienfuegos, and Florencio
Bustamante, for the murder of one Casimiro Henriquez, on June 3, 1894, at the
plaza of the village of Coatepeque. Jacinto Colocho having been discharged for
want of sufficient evidence to connect him with this offense, his relation to
the case will not be further considered. [*989] It appears, from the deposition of Apolonio Henriquez that
on June 3, 1894, one Gen. Emilio Avelar, an officer under Gen. Ezeta, came to
the deponent’ house, and took his son away a prisoner; that, on
arriving at the vanguard of the army, he sought to shoot his son; that Gen.
Avelar was dissuaded from his purpose by the opposition made by the physicians
in charge of the ambulance; that Gen. Avelar thereupon turned his son over to
Gen. Bolanos, and that the latter ordered that he be delivered to Gen. Ezeta;
that while on the way to Gen. Ezeta’ headquarters, the prisoner was
maltreated by soldiers and women; that upon reaching Gen. Ezeta’
headquarters the latter, on being told that the prisoner was a spy, struck him,
and ordered him to be hung; that the women begged the general to deliver the
prisoner over to them, to do as they pleased with him, which request he
granted; that the prisoner was then taken to the plaza of the town of Coatepeque;
that on the way he was severely maltreated; that he was hung at the plaza; that
Cienfuegos, Bustamante, and another person gloated over what they had done;
that Bustamante, enraged at the corpse, cut the rope, in order to see it fall,
and Cienfuegos, supposing it still had life, directed several shots from his
revolver into the body; that many persons can testify to all this; that there
was not cause for the execution of his son, since he was neither a participant
in the revolution nor in the forces of Ezeta. As it does not appear that the
deponent testified as a witness under oath to the matters he undertakes to
narrate, and manifestly could not have had the knowledge to so testify as to
all the particulars related, his deposition cannot properly be considered as
anything more than a statement of the complaint of an aggrieved party. The
witness Anastacio Ruano testifies that Ezeta, believing it true that he
(Casimiro Henriquez) was a spy, as well as enemy, ordered him to be hanged in
the public plaza, in carrying out which order, Juan Cienfuegos, Florencio
Bustamante, and one Fernando Salguero took part. Mauricio Escobar deposes that
he saw Casimiro Henriquez being carried a prisoner by Gen. Emilio Avelar and
the colonels, Juan Cienfuegos and Florencio Bustamante, accompanied by soldiers
and women, who were stoning and clubbing the prisoner; that they directed their
steps towards Ezeta’ headquarters; that about a quarter of an hour
later the same party retraced their steps, going towards the plaza, and then to
the middle of it, where they hung Henriquez on a public lamp-post; that the
authors of the deed were Florencio Bustamante, Juan Cienfuegos, and one
Fernando Salguero; that declarant saw Juan Cienfuegos discharge shots into the
body of Casimiro Henriquez. Horacio Olmedo testified that Ezeta gave the order
to the soldiers who were conducting Casimiro Henriquez as a criminal that they
should do what they pleased with him; that shortly after that he was hung in
the plaza of Coatepeque; that when nearly dying he was lowered from the post,
and Cienfuegos fired two shots at him. Rodrigo Escobar deposed that he heard
and saw, also, that Antonio Ezeta gave the order the evening of the 3d of June,
1894, to hang Casimiro Henriquez, upon being told that the latter was of the
advance guard, and he delivered him to [*990] the populace to do as they
wished with him, and in this manner he was taken away to be hung; that the
declarant did not witness the hanging. Francisco Menendez testified: “That among the many crimes
perpetrated in Coatepeque during the time about which he is asked, in
consequence of his having been a resident of that town, he witnessed only the
death imposed upon Casimiro Henriquez, by hanging, in the plaza of said town,
on the 3d of the present month (June), at about six o’clock p.m.; the
order for which execution was given, as publicly known, by Antonio Ezeta. But
declarant did not give his attention to whom the perpetrators of the crime
were.” The defendants all testify that they had nothing whatever to do
with the hanging of Casimiro Henriquez, and that they did not even witness the
occurrence. It is not claimed that Antonio Ezeta was present. His connection
with the alleged murder was in giving the order to execute Henriquez, and
turning him over to the soldiers and women, that they might accomplish that
design. One of the witnesses for the government of Salvador testifies
positively that he heard and saw the order given. Ezeta testified, in answer to
the question that he detail the circumstances under which he saw Casimiro
Henriquez on that day, that: “The forces that captured him
(Henriquez) took him, and carried him through the streets of Coatepeque. Upon
hearing the noise of the people, I inquired about the matter, and learned that
he had been captured, and was being carried through the streets. Subsequently,
I was informed that he had been killed. Probably, he was hung. Q. Did you see
him hung? A. No, sir, I did not. I saw him when he was dead. Q. Did you order
him to be hung? A. No, sir, I did not; but, in conscience, I will state that I
believe he was well killed, because he was a rebel.” Cienfuegos claims that when the hanging took place he was with
Gen. Ezeta at the latter’ headquarters. He admits that he heard the
tumult of the soldiers and women; that they were shouting, “Death to
the traitor.” and that they were carrying some one, whom he could not
see; and that the crowd finally turned towards the plaza, which, he testifies,
was about four blocks distant from Ezeta’ headquarters. He states that
while all this excitement was going on he remained about the corridor of the
house; that he did not follow the crowd, and took no part in the hanging.
Bustamante claimed on the stand that he did not even see the execution, but
subsequently in this testimony he contradicted himself by admitting that he did
witness it. He claimed that he did not see the hanging because at the time he
was busy with his carts stationed at the plaza; but, as the execution took
place on the plaza itself, he must have witnessed it, as he subsequently
admitted. But this testimony on behalf of Cienfuegos and Bustamante were both
seen with the populace on that occasion; that they, with others, had the
prisoner in custody; that they actually took part in the hanging, the
particular part which each of them took in the execution being described by the
witnesses in unmistakable language. From the testimony I find that there is
sufficient evidence of criminality to warrant me in holding that there is in
this case probable cause to [*991] believe that Antonio Ezeta, Juan
Cienfuegos, and Florencio Bustamante are guilty of this crime as charged.
Whether the act charged was a political offense, within the meaning of the
treaty, will be considered hereafter. The only testimony I have been able to find in the record tending
to connect Gen. Bolanos with this affair is that of Anastacio Ruano, that
Henriquez was delivered, by order of Gen. Bolanos, to Gen. Ezeta, and the
testimony of Horacio Olmedo, “that Gen. Leon Bolanos, having taken
part in the affair, exciting the populace, in order that the execution should
be more bloody. “ This last statement, at most, is but a mere recital,
without any direct averment as to any specific act tending to connect Bolanos
with the deed. The accused testifies that on June 3d, the day Henriquez was
hung, he was in command of the artillery on a hill outside of the city of
Coatepeque; that he did not reach the city until 7 o&#!46;clock in the
evening, and knew nothing of the hanging until he was informed about it at 6
o’clock of that day. He denies having had any connection whatever with
the execution. The evidence against this defendant is not, in my judgment,
sufficient to justify his commitment, and he will therefore be discharged. The fourth charge is against Antonio Ezeta, for the robbery of the
International Bank of Salvador & Nicaragua, in the city of Santa Tecla, or
New San Salvador, on June 5, 1894. The depositions of three witnesses were
introduced in evidence on the part of the government of Salvador. The principal
witness is one Jose Ruiz, who testifies to all of the matters connected with
the alleged robbery. His deposition is as follows: “The agency in this city of the
International Bank of Salvador is in charge of the house of Ambrosy & Ruiz,
located in the same, of which the deponent is a partner; that in effect, on the
5th day of this month (June), about one o’clock in the afternoon,
there arrived, where the deponent was, an officer accompanying his clerk, Senor
Enrique Orellana, and the clerk and that officer stated to the deponent that he
was wanted at the agency by a chief or superior officer, to make a transaction;
that then the deponent went to the agency, and met in the same a colonel, and
many other officers besides, of Gen. Antonio Ezeta, who had on that day reached
here at about ten o’clock a.m.. that said superior officer or colonel,
on seeing the deponent, said to him that, pursuant to order of the senor
president of the republic, Don Antonio Ezeta, that he (the deponent) should
hand over to him ten thousand dollars of the funds of the said agency,
threatening him at once if he did not do so; that the deponent replied that in
the agency there were not ten thousand dollars, and that then the said colonel
said to him (the deponent), in an insolent tone, and always threatening him,
that he should turn over what there might be, but without delay, because the
president, Antonio Ezeta, was becoming impatient; that in consequence of that
the deponent saw himself forced to give what there was in the vault of the
agency, and ordered the vault opened, and, the vault being opened, the latter,
the said colonel, and the officers indicated, extracted the money which it
contained, which they counted themselves in presence of the deponent, and it
reached the sum of two thousand five hundred and eighty-four dollars, which
they carried away to the said Ezeta, after receiving the said sum, ordered
called the paymaster of his forces, Col. Don Rudolf Quell, to whom the same was
delivered, and the latter gave him (the deponent) a receipt for the money,
which receipt was given and placed by order of the said Ezeta, and the deponent
remitted then the said receipt to the [*992] board of directors of the bank
(Gerencia), furnishing it an account of what had occurred; that he (the
deponent) does not know the name of the colonel, nor that of any of the other
officers to whom reference has been made, and that the following persons can
depose in the matter, to wit, Don Evaristo Ambrosy, his partner, who arrived at
the time the money was counted, the said clerk, and the paymaster, Senor Quell;
deponent declaring that the sum alluded to is exactly that which the
International Bank had in cash in the safe or coffers of the said agency, and
that what he has testified he both heard and saw.” The other witnesses, viz. Don Evaristo Ambrosy, the partner, and
Enrique Orellana, the clerk in the bank, both corroborate the witness Ruiz in
all the important particulars of fact. But it is objected by counsel for
defendant that the facts as proven do not establish the crime of robbery,
defined in the treaty. Article 2, subd. 4, of the treaty, defines robbery to be
“the action of feloniously and forcibly taking from the person of
another goods or money by violence, or putting him in fear.” It is
contended that as the money was not taken from the person the crime of robbery,
called for by the treaty, has not been proven. The point is also made that
there was no “absolute intimidation” only an
“implied intimidation.” It is sufficient to say that the
witness Ruiz, one of the proprietors of the bank, stated unequivocally that he
was threatened. As to the other point, I have no doubt that “taking
from the person” includes “taking from the immediate presence
of the person” as well. The definition in the treaty is in effect the
commonlaw definition of robbery, and, as Mr. Justice Washington says: “If a statute of the United States
uses a technical term, which is known, and its meaning fully ascertained by the
common or civil law, from one or the other of which it is obviously borrowed,
no doubt can exist that it is necessary to refer to the source whence it is
taken, for its precise meaning.” U.S. v. Jones, 3 Wash.C.C. 215,
Fed. Cas. No. 15,494. According to the common-law definition, it is well settled that
robbery of the person includes robbery “in the immediate presence of
the person.” Mr. Justice Washington, in charging a jury in the above
case, gave the common-law definition, and the interpretation thereof, in the
following language: “(Robbery) is the felonious taking of
goods from the person of another, or in his presence, by violence, or by
putting him in fear, and against his will. It is objected that the taking must
be from the person. The law is otherwise, for if it be in the presence of the
owner,— as if by intimidation he is compelled to open his desk, from
which his money is taken, or to throw down his purse, which the robber picks
up,— it is robbery, as much as if he has put his hand into the picket
of the owner, and taken money from thence. But the taking must be in the
presence of the owner.” The similarity between the common-law definition of robbery, as
given by Mr. Justice Washington, and that contained in the treaty, needs no
comment. The definition in the American & English Encyclopedia of Law
(volume 21, pp. 414, 424), further confirms the correctness of the construction
placed upon the definition of robbery contained in the treaty: “To constitute robbery, the taking
must be from the person of the party robbed. But anything taken from the
presence or view of the party, or from [*993] his protection, is
constructively taken from his person.” 1 Hale, P.C. 533; 2 East, P.C.
707; Reg. v. Selway, Cox, Cr. Cas. 235; State v. Calhoun 72 Iowa, 432, 34 N.W.
194; Clements v. State, 84 Ga. 660, 11 S.E. 505. In my opinion, it is enough, therefore, to bring the offense
within the crime of robbery, as defined in the treaty of extradition, that the
money or goods be taken from the presence or view of the party robbed, by
violence, or by putting him in fear. The defendant does not deny that the money was taken from the bank
by his officer, Col. Juan Cienfuegos. He admits that the latter went to the
bank at his orders. He claims that it was absolutely necessary to have the
money for the purpose of paying the troops, who had not been paid for two days,
and that it was the custom to pay the troops daily. Whether the exigencies of
the military operations required that this so-called “forced
loan” should be made, and was justifiable under the circumstances,
remains to be considered when I come to treat of the political phase of the
offenses charged. Suffice it to say that so far as the offense itself is
concerned, considered without reference to any political aspect of the act, the
evidence of criminality preponderates sufficiently over the testimony of the
accused to justify me in saying that there is probable cause to believe the
defendant guilty. The last charge is that against Antonio Ezeta and Juan Cienfuegos,
for the murder of Tomas Canas, on June 6, 1894, on the road leading from Santa
Tecla to La Libertad. The facts of this alleged murder, as severally testified
to by the witnesses on the part of the government of Salvador, are, briefly,
that while Gen. Antonio Ezeta, with his staff, were proceeding along the road
leading from Santa Tecla to La Libertad, they met one Col. Tomas Canas, who was
coming from an opposite direction. Canas approached Gen. Ezeta, and told him
that the enemy wanted his head. One of the witnesses states that Canas drew
near to Gen. Ezeta, speaking to him at his ear; that afterwards Gen. Ezeta told
them that Canas had said to him that Manuel Rivas wanted his head. Both drew
their revolvers, and Gen. Ezeta fired a shot at Canas. Cienfuegos immediately
followed with three shots. Canas was afterwards found dead by the roadside,
with several bullet wounds in his body. Which one of the two made the first
movement to draw his revolver does not appear from the evidence of the
government of Salvador, but it is certain that Canas did not shoot. And in this
connection the testimony of one Fernando Carranza, a boy aged 13 years, bugler
to Gen. Ezeta, may be referred to. He testifies as follows: “That on the road, and before the
reaching the point called El Amatillo, Col. Tomas Canas approaching near to
Ezeta, and told him that the enemy wanted his head; that Juan Cienfuegos
reached to where Canas stood, and wanted to take his revolver from his pocket,
which he obtained; that, after the words which passed between Canas and Ezeta,
the latter fired a shot at the former, and Cienfuegos fired three other shots
at him.” The statement that Cienfuegos procured the revolver of Canas is
not corroborated by any of the other witnesses, and is inconsistent with the
testimony of Gen. Calixto Guzman, who stated that both [*994] drew their
revolvers. It is in evidence on the part of the defendants that Cienfuegos did
make an effort to prevent Canas from touching Gen. Ezeta, and it is probably to
this circumstance the witness means to refer. The defendants admit that they
shot at and killed Tomas Canas, but they justify their action on the ground of
self-defense. It is claimed by them that Tomas Canas had been traitorous to his
trust as an officer under Gen. Antonio Ezeta, and that he had surrendered, that
very morning, the soldiers, ammunition, and military accouterments under his
command; that when he came up to Ezeta he appeared to be somewhat intoxicated;
that he exclaimed to Gen. Ezeta, “General, Manuel Rivas wants your
head.” that thereupon he seized Gen. Ezeta by the throat, and also
made a movement as if to draw his revolver; that Cienfuegos made an attempt to
prevent Canas from drawing his revolver; that Gen. Ezeta immediately drew his
revolver, and fired one shot at Canas, and Cienfuegos followed with three other
shots; that Canas half turned his horse, and fell on the roadside, where he was
left by Gen. Ezeta and his staff. It is objected that the facts proven do not,
in any view, tend to establish the crime of murder, as defined by the treaty
and the law of Salvador. In article 3 of the treaty the crime of murder is
defined as follows: “Murder, comprehending the crimes designated in
the penal codes of the contracting parties by the terms homicide, parricide
assassination, poisoning, and infanticide.” It is contended that
“homicide, parricide,” etc., must amount to the crime of
murder, to come within the treaty,— in other words, that the
extraditable offense is limited to the crime known in our law as “the
killing of a human being, with malice aforethought”— or if we
look to the law of Salvador, we must still find the facts sufficient to bring
the case within the offense amounting to murder under the law of that republic.
The Penal Code of Salvador provides as follows: “Article 360. Murder is homicide
committed with premeditation, and under any one of the following circumstances:
First, with perfidy or breach of trust; second, for a price, or promise of
reward; third, by means of flood, fire, or poison. The crime of murder will be
punishable with the penalty of death. “Article 361. Homicide. He who kills
another with premeditation and without any of the circumstances enumerated in
the preceding article, or under some one of said circumstances enumerated in
the preceding article, or under some one of said circumstances, and without
premeditation, will be punished with the penalty of imprisonment at hard labor.
In any other case the penalty of imprisonment at hard labor shall be imposed on
the offender.” It is contended that the facts here proven do not show the
circumstances constituting murder, within the meaning of the law of Salvador,
and therefore the accused cannot be extradited for that offense, and that, if
the facts be held to bring the case within section 361 of the Penal Code of
Salvador, still the accused cannot be extradited, for that is not the crime
known as murder. It seems to me that this is a refinement not justified by the
terms of the treaty. I cannot understand why, if the treaty was only intended
to comprehend murder as known to our law, or what corresponds to that crime
elsewhere, there should have been a further enumeration of offenses amounting
to the same degree. In my opinion the article of the treaty in question should
be read according to its plain and [*995] obvious meaning in the designation
under the general title of “Murder,” as the crime of homicide
is defined in article 361 of the Penal Code of Salvador. As the act involves
principles of military law, and in that connection is claimed to constitute a
political offense, this aspect of the accusation will be considered in
conjunction with the other political offenses. But, eliminating the question as
to whether the act may be regarded as a military act, and therefore coming with
the saving clause of political offenses, and considering the act charged merely
as a common crime, it is evident that the testimony of the witnesses on the
part of the government of Salvador with the admissions of the defendants, makes
out the requisite case of probable cause of their guilt. I have now reached the most important question to be considered in
this examination. It is claimed by counsel for the defendants that, with the
exception of the charge against Juan Cienfuegos for the attempt to murder Amaya,
all the acts charged against the defendants in these several complaints were
committed during the progress of actual hostilities, in which the accused were
engaged as military officers under the government, acting against revolutionary
forces in the field; that the crimes or offenses were therefore of a political
character, and under the treaty, not subject to extradition. Counsel for the
present government of Salvador contend, on the other hand, that it is no part
of my duty to determine this question; that my jurisdiction is limited to the
examination of the criminality of the accused, as charged in the complaints,
and, if it appears upon this examination that the evidence is sufficient to
warrant me in the belief that the persons accused are guilty of the offenses
charged, then I must so certify that fact to the executive department of the
United States, where it may properly be determined whether the offenses are of
a political character or not. The argument in support of this proposition is
derived from the language of the treaty, describing the offenses made subject
to extradition, and particularly the provision that persons convicted or
charged with any of the crimes specified shall be delivered up only
“upon such evidence of criminality as, according to the laws of the
place where the fugitive or person so charged shall be found, would justify his
or her apprehension and commitment for trial if the crime had been there
committed.” It is contended that this provision necessarily excludes the
jurisdiction of the committing magistrate to inquire into the political
character of the offense, for the reason that under our laws there can be no
crime of a political character, unless it partakes of the nature of treason.
Further argument in support of this position is found in the language of
section 5270 of the Revised Statues, providing that any person charged with an
extraditable crime under any treaty may be arrested and brought before the
magistrate “to the end that the evidence of criminality may be heard
and considered.” It is claimed that this provision is a limitation
upon the jurisdiction of the committing magistrate; that when he has received
and considered the evidence of criminality of the accused as to the crime
charged in the complaint the examination is at an end. If the evidence is not
[*996] sufficient the
defendant is discharged. If it is sufficient he is required by this same
section “to 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;” the requirement that the testimony shall be
certified to the secretary of state being for the purpose of enabling the
executive department to determine whether the fugitive should be surrendered
according to the stipulations of the treaty, and this inquiry would include the
present case the question whether, upon the evidence contained in the record,
or found on the files of the department, the crimes charged are of a political
character. The case of In re Stupp, 12 Blatchf. 515, Fed. Cas. No. 13,563, is
cited to the effect that after a commitment of the accused for surrender, and
even after his discharge on habeas corpus has been refused, the president may
lawfully decline to surrender him, either on the ground that the case is not
within the treaty, or that the evidence is not sufficient to establish the
charge of criminality. There is no doubt but that the president has this
authority under the statute. There is no other review of the decision of the
committing magistrate provided, and there are many reasons, arising out of
public policy and the relations of one nation with another, why this review
should be vested in the chief executive. But does this authority deprive the
committing magistrate of the jurisdiction to determine preliminarily whether
the offense proven is of a political character or not? He is to take all the
testimony, and determine its sufficiency with respect to the offense charged.
Does not that jurisdiction properly and necessarily include all the elements of
law as well as fact? The constitution of the United States declares that
treaties are part of the supreme law of the land. Then let us see what the
terms of this treaty are with respect to the question under consideration.
Article 3 of the treaty provides as follows: “The provisions of this
treaty shall not apply to any crime or offense of a political
character.” Article 6 provides a method of procedure for making a
requisition for the surrender of a fugitive from justice, and the issuance of a
warrant for his apprehension, “in order that he may be brought before
the proper judicial authority for examination. If it should then be decided
that, according to law and the evidence, the extradition is due, pursuant to
the treaty, the fugitive may be given up according to the forms prescribed in
such cases.” Plainly, the duty of the judicial authority is to decide
whether extradition is due, according to law and the evidence, and pursuant to
the treaty. The whole case must be considered by the magistrate, whether the
questions involved arise out of the law, the evidence, or the treaty. There is
no limitation in this respect as to his jurisdiction, and his duty is fully and
accurately stated. The executive has a discretion in the provision that
“the fugitive may be given up according to the forms prescribed in
such cases,” but he has no judicial authority to take testimony or
make an examination; and it is difficult to understand how he could
satisfactorily exercise such authority, if he [*997] had it. But it
is said that all the testimony is to be taken by the committing magistrate, and
upon such testimony and the records of the state department the president is to
determine whatever political questions there may be involved in the case. This
is a suggestion as to the mode of procedure, rather than an argument based upon
the provisions of the treaty. The case of Castioni (1891) 1 Q.B. 149, is cited in support of such a procedure; but
that case was based upon the provisions of a statute clearly authorizing the
proceedings, and providing: that “a fugitive criminal shall not be
surrendered if the offense in respect to which his surrender is demanded is one
of a political character.” 33 & 34 Vict.c. 52, Sec. 3. In this
case the prohibition is not that there shall be no surrender, but that
“the provisions of this treaty shall not apply to any crime or offense
of a political character.” The prohibition extends to the action of
the committing magistrate, and terminates his jurisdiction when the political
character of the crime or offense is established. In other words, he has no
authority to certify such a case to the executive department for any action
whatever. This view of the law does not in any way conflict with my decision
upon the plea to the jurisdiction, where the political questions there
suggested were outside the merits of the case, and had no relation to the
criminality of the accused. Having jurisdiction to determine whether the charges against the
accused are of a political character or not, I proceed to the consideration of
that question. As before stated, the charge against Juan Cienfuegos for the
attempt to murder Andres Amaya does not involve any such question. The other
charges do. The testimony shows that they were all committed during the
progress of actual hostilities between the contending forces, wherein Gen.
Ezeta and his companions were seeking to maintain the authority of the then
existing government against the active operations of a revolutionary uprising.
With the merits of this strife I have nothing to do. My duty will have been
performed when I shall have determined the character of the crimes or offenses
charged against these defendants, with respect to that conflict. During its
progress, crimes may have been committed by the contending forces of the most
atrocious and inhuman character, and still the perpetrators of such crimes
escape punishment as fugitives beyond the reach of extradition. I have no
authority, in this examination, to determine what acts are with the rules of
civilized warfare, and what are not. War, at best, is barbarous, and hence it
is said that “the law is silent during war.” What constitutes an offense of a political character has not yet
been determined by judicial authority. Sir James Stephens, in his work, History
of the Criminal Law of England (volume 2, p. 71), thinks that it should be
“interpreted to mean that fugitive criminals are not to be surrendered
for extradition crimes if those crimes were incidental to and formed a part of
political disturbances.” Mr. John Stuart Mill, in the house of
commons, in 1866, while discussing an amendment to the act of extradition, on
which the treaty between England and France was founded, gave this definition:
[*998] “Any
offense committed in the course of or furthering of civil war, insurrection, or
political commotion.” Hansard’ Debates, vol. 184, p. 2115. In
the Castioni Case, supra, decided in 1891, the question was discussed by the most
eminent counsel at the English bar, and considered by distinguished judges,
without a definition being framed that would draw a fixed and certain line
between a municipal or common crime and one of a political character.
“I do not think,” said Denman, J., “it is necessary
or desirable that we should attempt to put into language, in the shape of an
exhaustive definition exactly the whole state of things, or every state of
things, which might bring a particular case within the description of an offense
of a political character.” In that case, Castioni was charged with the
murder of one Rossi, by shooting him with a revolver, in the town of
Bellinzona, in the canton of Ticino, in Switzerland. The deceased, Rossi, was a
member of the state council of the canton of Ticino. Castioni was a citizen of
the same canton. For some time previous to the murder, much dissatisfaction had
been felt and expressed by a large number of inhabitants of Ticino at the mode
in which the political party then in power were conducting the government of
the canton. A request was presented to the government for a revision of the
constitution of the canton, and, the government having declined to take a
popular vote on that question, a number of the citizens of Bellinzona, among
whom was Castioni, seized the arsenal of the town, from which they took rifles
and ammunition, disarmed the gendarmes, arrested and bound or handcuffed
several persons connected with the government, and forced them to march in
front of the armed crowd to the municipal palace. Admission to the palace was
demanded in the name of the people, and was refused by Rossi and another member
of the government, who were in the palace. The crowd then broke open the outer
gate of the palace, and rushed in, pushing before them the government officials
whom they had arrested and bound. Castioni, who was armed with a revolver, was
among the first to enter. A second door, which was locked, was broken open, and
at this time, or immediately after, Rossi, who was in the passage, was shot
through the body with a revolver, and died very soon afterwards. Some other
shots were fired, but not one else was injured. Castioni fled to England. His
extradition was requested by the federal council of Switzerland. He was
arrested and taken before a police magistrate, as provided by the statute, who
held him for extradition. Application was made by the accused to the high court
of justice of England for a writ of habeas corpus. He was represented by Sir
Charles Russell, now lord chief justice. The attorney general, Sir Richard
Webster, appeared for the crown, and the solicitor genera, Sir Edward Clarke,
and Robert Woodfall, for the federal council of Switzerland. This array of
distinguished counsel, and the high character of the court, commends the case
as one of the highest authority. It appeared from an admission by one of the
parties engaged in the disturbances “that the death of Rossi was a
misfortune, and not necessary for the rising.” The opinions of the
judges as to the political character of the [*999] crime charged
against Castioni, upon the facts stated, is exceedingly interesting, but I need
only refer to the following passages. Judge Denman says: “The question really is whether, upon
the facts, it is clear that the man was acting as one of a number of persons
engaged in acts of violence of a political character with a political object,
and as part of the political movement and rising in which he was taking
part.” Judge Hawkins, in commenting upon the character of political
offenses said: “I cannot help thinking that
everybody knows there are many acts of a political character done without
reason, done against all reason; but at the same time one cannot look too
hardly, and weigh in golden scales the acts of men hot in their political
excitement. We know that in heat, and in heated blood, men often do things
which are against and contrary to reason; but none the less act of this
description may be done for the purpose of furthering and in furtherance of a
political rising, even though it is an act which may be deplored and lamented,
as even cruel and against all reason by those who can calmly reflect upon it
after the battle is over.” Sir James Stephens, whose definition as an author has already been
cited, was one of the judges, and joined in the views taken as to the political
character of the crime charged against Castioni. The prisoner was discharged.
Applying, by analogy, the action of the English court in that case to the four
cases now before me, under consideration, the conclusion follows that the
crimes charged here, associated as they are with the actual conflict of armed
forces, are of a political character. The draft of a treaty on International Penal Law, adopted by the
congress of Montevideo in 1888, and recommended by the International American
Conference to the governments of the Latin-American nations in 1890, contains
the following provision (article 23): “Political offenses, offenses
subversive of the internal and external safety of a state, or common offenses
connected with these, shall not warrant extradition. The determination of the
character of the offense is incumbent upon the nations upon which the demand
for extradition is made; and its decision shall be made under and according to
the provisions of the law which shall prove to be most favorable to the
accused.” I am not aware that any part of this Code has been made the basis
of treaty stipulations between any of the American nations, but the article
cited may be at least accepted as expressing the wisdom of leading jurists and
diplomats. The article is important with respect to two of its features: (1) It
provides that a fugitive shall not be extradited for an offense connected with
a political offense, or with an offense subversive of the internal or external
safety of the state; and (2) the decision as to the character of the offense
shall be made under and according to the provision of the law which shall prove
most favorable to the accused. The first provision is sanctioned by Calvo, who,
speaking of the exemption from extradition of persons charged with political
offenses, says: “The exemption even extends to acts
connected with political crimes or offenses, and it is enough, as says Mr.
Faustin Helio, that a common crime be connected with a political act, that it
be the outcome of or be in the execution of such, to be covered by the
privilege which protects the latter. “ 2 Calvo, Droit Int. (3 me Ed.)
p. 413, Sec. 1262. [*1000] The second provision of the article is founded on the broad
principles of humanity found everywhere in the criminal law, distinguishing its
administration with respect to even the worst features of our civilization from
the cruelties of barbarism. When this article was under discussion in the
international American conference in Washington, Mr. Silva, of Colombia,
submitted some observations upon the difficulty of drawing a line between an
offense of a political character and a common crime, and incidentally referred
to the crime of robbery, in terms worthy of some consideration here. He said: “In the revolutions, as we conduct
them in our countries, the common offenses are necessarily mixed up with the
political in many cases. A revolutionist has no resources. My distinguished
colleague General Caamano (of Ecuador) knows how we carry on wars. A
revolutionist needs horses for moving, beef to feed his troops, etc.; and sine
he does not go into the public markets to purchase those horses and that beef,
nor the arms and saddles to mount and equip his forces, he takes them from the
first pasture or shop he finds at hand. This is called robbery everywhere, and
is a common offense in time of peace, but in time of war it is a circumstance
closely allied to the manner of waging it.” International American
Conference, vol. 2, p. 615. Looking now to the cases which have arisen in the United States,
or with our immediate neighbors, where the political character of the offense
has been in question, we find that the extradition proceedings have been
against persons charged with acts committed against the government, and not, as
in these cases, where the acts are charged against persons who for the time
being represented the existing government. Nevertheless, these cases are of some
value as authority upon the general question as to what constitutes an offense
of a political character. I will therefore refer to these cases as I find them
stated in 1 Moore on Extradition. The first case mentioned is that of William
L. McKenzie. It— “Arose under the New York statute of
1822, which authorized the governor of that state to deliver up, upon the
requisition of the duly-authorized ministers or officers of foreign
governments, persons charged with the commission, within the jurisdiction of
such governments, of any crime, except treason, which by the laws of New York
would, if there committed, be punishable with death or imprisonment in the
state prison. Under this statute, Gov. Head, of Upper Canada, in 1837, made a
requisition upon Gov. Marcy for the extradition of William Lyon McKenzie, a
printer, on charges of murder, arson, and robbery. By the documents which
accompanied the requisition, it appeared that McKenzie acted as the leader of a
band of men, from six to fifteen hundred in number, who began an insurrection
in Canada for the redress of alleged grievances. On the 4th of December, 1837,
they assembled under arms near the city of Toronto. Gov. Head sent them a
message, calling upon them to disperse, to which they replied that they would
not treat with him unless they were allowed a free pardon, and unless he called
a convention of the people to remodel the government. These conditions Gov.
Head refused. On the night of the 4th of December a man named Moodie, in
company with other persons, attempted to pass the lines of the insurgents in
order to reach Toronto. While attempting to pass they were called upon to
surrender themselves as prisoners. They refused, and a volley was fired by the
insurgents, in which Moodie was killed. On the following day, in the
prosecution of their enterprise, the insurgents burned the dwelling house of a
Mr. Horne, and seized some mail bags which were in the custody of the driver of
a stagecoach, and rifled them of their contents, obtaining a number of letters
an some money. On the 6th of December the insurgents were dispersed by a
military force under the command of Gov. Head, in a conflict in which fifty of
the insurgents were killed and wounded, [*1001] and three of the government
party wounded. When Gov. Marcy received the requisition for McKenzie’
extradition, he referred the matter to the attorney general of the state,
Samuel Beardsley, for an opinion. The attorney general, on December 23, 1837,
gave an opinion in which, after reviewing the facts above narrated, he held
that the acts with which the fugitive was charged were of a political
character, and that consequently the governor was without authority to
surrender him. Upon the receipt of this opinion, Gov. Marcy, on December 25,
1837, informed Gov. Head of the proceedings that had been taken upon his
requisition. In this communication, Gov. Marcy stated that the documents
clearly showed that McKenzie committed the crimes imputed to him, and also that
previously thereto ‘he had revolted and was in arms against her
majesty’ government of Upper Canada. His crime,’ Gov. Marcy
continued, ‘is therefore treason, and, if a fugitive within this
state, he must be regarded as a fugitive to avoid the punishment for this
offense, rather than for those imputed to him in the documents accompanying
your excellency’ application. These latter offenses must be considered
as the incidents of the alleged treason.’” 1 Moore, Extrad. .
313 et seq. The next case is that of certain Mexican revolutionists. Mr. Moore
gives the following statement of the facts of that case: “Several cases are found in which the
government of the United States has held that the offenses with which fugitives
were charged were of a political character, and hence did not afford a ground
of extradition. In 1880 a band of eight Mexicans, who were suspected of being
revolutionists, came over from Sonora into the territory of Arizona, where they
were captured, and placed in the custody of an officer of the United States
army. A demand for their surrender, addressed to the territorial authorities,
was refused. Application was then made to the federal government for their
extradition on the charge of larceny of cattle and of other chattels of the
value of twenty-five dollars and upwards. It appeared that they had entered the
town of Magdalena, and, in the professed prosecution of a political enterprise,
exacted large sums of money from the inhabitants, under threats of hanging
them. The Mexican minister, in preferring the request of his government for the
prisoners’ surrender, adverted to the circumstances, and suggested the
question whether the professed political motive was not a pretense to cover
criminal acts.” The United States refused to deliver up the prisoners, stating as
a reason, among others, that the fact— “That they were charged with being
revolutionists shows that, whatever may have been their other crimes, they may
also have been guilty of a political offense for which the treaty stipulates
that no extradition shall be granted.” 1 Moore, Extrad.p. 323, Sec.
216. The next case mentioned by Mr. Moore is that of Cazo: “On February 3, 1887, the Mexican
minister presented a request for the extradition of one ‘Francisco J.
Cazo and his accomplices,’ charged with murder, assault with intent to
commit murder, and robbery, committed in the town of Agualeguas, in the state
of Nuevo Leone, Mexico, on the 11th, 12th, and 13th of July, 1886, who had
taken refuge in Texas. The evidence disclosed that, three or four days
previously to the 11th of July, it was reported that Cazo was coming to attack
the town. Just before midnight of the 10th of July a number of persons were
observed to leave the place armed, and about two o’clock on the
morning of the 11th an attack was made by a party of thirty or more persons,
who could not be identified, but who kept shouting, ‘Hurrah for Don
Francisco J. Cazo, and death to the Garra party.’ The raiders kept
possession of the town for nearly three days, during which time they had armed
encounters with the inhabitant, seized horses and other property, and committed
other acts of violence. When they departed, Cazo left a proclamation with a
citizen of the town, with directions to publish it. In reply to the application
for extradition, Mr. Bayard, then secretary of state, on February 7, 1887,
wrote as follows: ‘After a careful examination of the papers inclosed
in your note, I am unable to avoid the conclusion that the [*1002] acts of Cazo
and his associates, who were about thirty or forty in number, were clearly of a
political character, and consequently, under the express terms of article 6 of
the treaty above mentioned, are not a proper basis for extradition. The
character of the outbreak, the kind and quantity of the property taken, and the
mode of attack, all lead to that conclusion. Although the first assault of
Cazo’s party was made in the night, there was no effort to conceal the
personal identity of the leader; and such property as was seized was taken,
manifestly, for the purpose of military equipment, for which it was adapted.
The evidence offered of the fact that Cazo led the attack is the testimony of
several witnesses that the assailants cried, ‘Hurrah for Don Francisco
J. Cazo.’ and at least one witness testifies to the additional and
accompanying exclamation of “Death to the Garra party.”
Another witness states that Cazo left a proclamation in the hands of a resident
of Agualeguas, with a view to its publication. Indeed, all the circumstances
point to the conclusion that the affair was an avowed partisan political
conflict.’” The acts and motives of the accused in the cases now before me are
certainly as closely identified with the acts of a political uprising, in an
unsuccessful effort to suppress it, as are the acts and motives of any of the
persons whose cases have been reported. The alleged hanging of four persons in
Las Pulgas ravine by Bolanos and Bustamante was because the persons executed
were hiding in houses located in Primavera canton; and, having declared that
they had concealed themselves in consequence of not desiring to take part
either for or against the revolution, Bolanos ordered Bustamante to hang them.
If this statement be true, it shows that the offense was directly connected
with the conflict then raging between the army under Ezeta and the
revolutionary forces. It must be remembered that a state of siege was
prevailing in the republic, proclaimed on April 29, 1894, and that a state of
siege is the equivalent of what is known in this country as “martial
law.” On the question of martial law, Wheaton, in his work on
International Law (3d Eng.Ed.p. 470) says: “Martial law has been defined to be
the will of the commanding officer of an armed force, or of a geographical
military department, expressed in time of war within the limit of his military
jurisdiction, as necessity demands and prudence dictates, restrained or
enlarged by the orders of its military chief or supreme executive rule. * * *
Martial law is founded on paramount necessity. It is the will of the commander
of the forces. In the proper sense, it is not law at all. It is merely a
cessation, from necessity, of all municipal law, and what necessity requires it
justifies. Under it a man in actual armed resistance may be put to death on the
spot by any one acting under the orders of competent authority, or, if
arrested, may be tried in any manner which such authority shall direct; but if
there be an abuse of the power so given him, and acts are done under it, not
bona fide to suppress rebellion, and in self-defense, but to gratify malice, or
in the caprice of tyranny, then, for such acts, the party doing them is
responsible.” The hanging of Henriquez is also a case arising out of a conflict
between military forces. He was charged with being a spy. His father says he
did not participate on either side. It is not for me to determine which of
these statements is true. He may have been a noncombatant, and his murder, like
that of Rossi in the Case of Castioni, a misfortune (as it doubtless was in any
view), and unnecessary in the enforcement of the governmental authority. But,
conceding all this, the execution took place at the close of an important
battle, and was undoubtedly connected with the turbulent condition of affairs
prevailing at Coatepeque at that time, and was therefore of a political
character. [*1003] The robbery of the International Bank of Salvador &
Nicaragua, at Santa Tecla, was an act known in the Central and South American
states as a “forced loan,” recognized by the treaty of amity
between the United States of America and the republic of Salvador, ratified in
1874, wherein it is provided, in article 29, subd. 3, that: “The citizens of the United States
residents in the republic of Salvador, and the citizens of Salvador residents
in the United States, shall be exempted * * * from all contributions of war,
military exactions, forced loans in time of war,” etc. The reciprocal character of this provision does not deprive it of
its plain purpose to protect American citizens residing in Salvador from a
system of government exactions prevailing in Central and South American states,
under some of their political administrations. In this case the money taken
from the bank was receipted for, and, by order of Gen. Ezeta, delivered to a
paymaster, with orders to pay the forces. Gen. Ezeta was at this time not only
the commander in chief of the army, but he was also the acting president of the
republic. As to the political character of this offense, there cannot be, it
seems to me, a shadow of doubt. The murder of Col. Tomas Canas presents a different state of facts
from either of the other cases. Col. Canas was an officer in the army,
commanding a brigade under Gen. Ezeta. On the morning of the 6th of June, 1894,
Gen. Bolanos reported to Gen. Ezeta, at Santa Tecla, that Col. Canas had gone
over to the enemy. As Gen. Ezeta and his staff were proceeding rapidly on the
road to La Libertad, they met Col. Canas. The testimony is to the effect that
Col. Canas rode up to Gen. Ezeta, and, taking him by the throat, said,
“General, Manuel Rivas wants your head.” that Canas drew his
revolver and fired at him, and Col. Cienfuegos also fired three shots at Canas.
It will be seen from this statement that the affair involves, not only the
question of the political character of this offense, but is relation to the
military law. Indeed, it is contended by counsel for the defendants that these
four cases are all subject to the military, and not to the civil, law, and for
that reason not subject to extradition. I will not enter into an extended
discussion of this feature of these cases, but, as the murder of Col. Canas makes
it necessary that I should consider that phase of the charge against Gen. Ezeta
and Col. Cienfuegos, I will do so briefly. A general principle of military law
is that no acts of military officers or tribunals, within the scope of their
jurisdiction, can be revised, set aside, or punished, civilly or criminally, by
a court of common law. Another principle of law is that offenses committed by
persons in the military service during the time of war, insurrection, or
rebellion, are punishable only by military tribunals. This is found in the law
of Salvador, relating to the state of siege, in the following terms (article
5): “The state of siege being declared,
the crimes of treason, rebellion and sedition will be subject to the military
authorities; also crimes against the public peace, independence and sovereignty
of the state and infringement of the law of nations.” [*1004] This provision is found substantially in article 58 of the
articles of war provided for the government of the army of the United States. In Coleman v. Tennessee, 97 U.S. 509, the supreme
court of the United States had under consideration the question of jurisdiction
under this law. The facts of that case were that a soldier in the military
service of the United States, on the 7th of March, 1865, and during the war of
the Rebellion, committed the crime of murder in the state of Tennessee. He was
tried by a military courtmartial, convicted, and sentenced to suffer death.
After the constitutional relations of the state of Tennessee to the Union were
restored, he was indicted in one of her courts for the same murder. To the
indictment he pleaded his conviction before a court-martial. The plea being
overruled, he was tried, convicted, and sentenced to death. The question in the
supreme court of the United States was the jurisdiction of the state court over
the person of the defendant, and it was held that the state court had no
jurisdiction to try him for the offense, as he, at the time of committing it,
was not amenable to the laws of Tennessee. Mr. Justice Field, speaking for the
court in this case, said: “The laws of Tennessee with regard to
offenses and their punishment, which were allowed to remain in force during its
military occupation, did not apply to the defendant, as he was at the time a
soldier in the army of the United States, and subject to the articles of ward.
He was responsible for his conduct to the laws of his own government only, as
enforced by the commander of its army in that state, without whose consent he
could not even go beyond its lines. Had he been caught by the forces of the
enemy, after committing the offense, he might have been subject to a summary
trial and punishment by order of their commander; and there would have been no
just ground of complaint, for the marauder and the assassin are not protected
by any usages of civilized warfare. But the courts of the state, whose regular
government was superseded, and whose laws were tolerated from motives of
convenience, were without jurisdiction to deal with him.” I am unable to understand how the overthrow of the Ezeta
government and the dissolution of its army change the status of this question.
In the case just cited the disbandment of the Union forces and the restoration
of peace, in April, 1866, did not affect the question of jurisdiction. Mr.
Justice Clifford, in a dissenting opinion, suggests that the proceedings
against Coleman by court-martial were abandoned by the return of peace. The sentence
of the court-martial was never executed, and the learned justice says,
“It is, perhaps, equally clear that it has become a nullity by the
intervention of peace.” The facts upon which the prevailing opinion is
based do not conflict with this explanation why the sentence against Coleman
was not executed. It follows, as a conclusion from the principles declared by these
authorities, that the military law of Salvador had jurisdiction to punish the
accused, as military officers, for the offenses committed by them during the
progress of the revolution, and, this being so, these four cases now under
consideration, and particularly the charge against Antonio Ezeta and Juan
Cienfuegos, for the murder of Tomas Canas, were properly within that jurisdiction,
and not within the jurisdiction of the municipal law. If this fact does not, of
itself, place these offenses outside the law of extradition, it at [*1005] least, makes it
more certain that the offenses charged are of a political character, and therefore
not within the provisions of the treaty. The defendants Antonio Ezeta, Leon
Bolanos, and Florencio Bustamante will therefore be discharged, and Juan
Cienfuegos held for extradition, to answer the charge of an attempt to murder
Andres Amaya on the 3d of January, 1894. |