In re François Farez.

and the counsel for the prosecution objected to his being sworn and examined, on the ground that he was incompetent as a witness. The Commissioner sustained the objection, and, in that respect, I think, he erred. He ought to have permitted the prisoner to be examined. The proceedings before a magistrate, in this District, must be conducted according to the laws of the State of New York, in the particulars in which such proceedings are not specially regulated by a statute of the United States. By an Act of the Legislature of the State of New York, passed May 7th, 1869, (Sess. Laws of New York, of 1869, chap. 678,) it is provided, that, in all proceedings in the nature of criminal proceedings, in any and all Courts, and before any and all officers and persons acting judicially, a person charged with the commission of a crime shall, at his own request, but not otherwise, be deemed a competent witness. In this case, the counsel for the defence called the prisoner himself as a witness. It must be intended, that this was done at the request of the prisoner, acting through his counsel. I think the prisoner had a right to make his statement as a witness. The 13th Article of the Convention in question provides, that the person charged with the crime shall be delivered up only when the fact of the commission of the crime shall be so established as to justify his apprehension and commitment for trial, if the crime had been committed in the country where such person shall be found. Applied to this case, this provision requires that, in order to warrant the commitment of the party for trial, the same evidence shall be required of the fact of the commission of the crime in Switzerland, as would be required of the fact of the commission of the like crime, if it had been committed here. The good sense of this provision requires, that the fact of the commission of the crime shall be established in such a manner and according to such forms of proceeding, as would be required if the crime had been committed in the country where the person shall be found. The word "country," necessarily, under our form of government, in carrying out the provisions of the Convention, means the special political jurisdiction that has

In re François Farez.

cognizance of the crime. In this case, the forms of proceeding that must be observed are those of the State of New York; and the prisoner must have an opportunity, if he desires, of making his own statement on oath. This view is confirmed by the analogous course of proceeding which exists in respect to the examination of offenders charged with crimes against the United States. It is provided by the 33d section of the Judiciary Act of 1789, that, for any crime or offence against the United States, the offender may, agreeably to the usual mode of process, that is, mode of procedure, against offenders in the State where such offender may be found, be arrested and imprisoned or bailed, as the case may be, for trial before the proper Court of the United States.

It was urged, on the hearing, on the strength of an observation made by Mr. Justice Nelson, in the case of Ex parte Kaine, (3 Blatchf. C. C. R., 1, 10,) that the evidence before Commissioner must be so full as, in his judgment, if he were sitting on the final trial of the case, to warrant a conviction of the prisoner. While I always hesitate to differ with Mr. Justice Nelson in opinion, I am not prepared to adopt this view. It seems to me to be in conflict with the decision in the case of Aaron Burr. In that case, Chief Justice Marshall sat as a committing magistrate, on the question as to whether Burr should be committed for trial for the crime of setting on foot an expedition against the territories of a nation at peace with the United States. The Chief Justice said, (1 Burr's Trial, 11:) "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 by proof, furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it." The Chief Justice acted upon that view, and committed Colonel Burr for trial. The Convention, in the present case, says, that the fact of the commission of the crime

In re François Farez.

must be so established as to justify the commitment of the accused for trial if the crime had been committed here. The question before Chief Justice Marshall in the case of Burr was merely the question whether Burr should be committed for trial, and the question as to the extent to which the fact of commission of the crime must be established. 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 would, 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 33d section of the Judiciary Act of 1789, in regard to offences 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 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 offence 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.

The record shows, that a motion was made to the Commissioner, on the part of the prisoner, to adjourn the further hearing of the case for a sufficient length of time to allow the prisoner to send for and obtain evidence from Switzerland, to be used on the examination, and that the prisoner be admitted to bail. This motion was denied, and properly, for no sufficient foundation had been laid for it at that time. Afterwards, the counsel for the prisoner renewed the motion for an adjournment for a sufficient length of time to allow the prisoner to send for and obtain evidence from Switzerland, and, in support of such motion, read the affidavits of the prisoner and

In re François Farez.

of another person. The motion was denied, and properly; for the affidavits do not show that there is any evidence, either oral or documentary, on the part of the prisoner, that exists or is accessible or is likely to be obtained. No magistrate would, on such affidavits, have been justified in granting the motion. At the same time, if the prisoner desires to be examined himself, or to have any witnesses examined whom he shall produce, he ought to have the opportunity to examine them.

The counsel for the prisoner having stated that he had no other evidence to offer on the part of the defence, the Commissioner held that the evidence produced was sufficient to sustain the charge made, and that the prisoner should stand committed to await the order of the proper Executive authority of the United States. Under such commitment he is now held by the marshal.

I believe I have considered every question which has been raised in the case. I think that the only error which the Commissioner made was the one which I have pointed out, of not permitting the prisoner to be examined as a witness for himself. Although, under the laws of the United States, a person on trial for a crime before a petit jury cannot be a witness for himself, yet the preliminary examination of an offender against the laws of the United States must be conducted according to the mode of procedure which prevails in the State where such offender is found; and a like rule is to be observed under a treaty of extradition like the one now under consideration.

The prisoner must be discharged from custody under the final commitment by the Commissioner; but he is properly held under the warrant of arrest, and must be remanded to the custody of the marshal thereunder. The proper course will be to proceed with the examination before the Commissioner de novo.

Francis R. Coudert, for the prisoner.

Henry D. Lapaugh, for the Swiss Government.

The Bridgeport.

THE BRIDGEPORT.

In the absence of any proof other than the mere fact that one vessel collides with another, no presumption of fault arises against either vessel; but the circumstances may be such that, on proof of the situation of the injured vessel, the other is put to proof of due care, caution and skill on her part.

When a steambeat runs into or against a wharf in a port or a vessel moored thereto, there is a presumption of negligence on her part; and, unless she satisfactorily establishes an excuse, she will be held in fault.

Such excuse held not to be established in this case.

The steamboat held to have changed her course too soon in a fog, in the night, and to have run at too great speed in such fog.

(Before WOODRUFF, J., Eastern District of New York, June 18th, 1870.)

WOODRUFF, J. The liability of the steamboat in this case depends solely upon the question of fact, whether she was navigated in the exercise of reasonable care and caution under the circumstances, and with due nautical skill. Without entering upon a discussion of the testimony in detail, I am constrained to say, after a careful examination of all the evidence, that the proof is against her in this respect.

While it is no doubt true, that, in the absence of any proof other than the mere fact that one vessel collides with another, no presumption of fault arises against either vessel, it is also true, that the circumstances may be such that, on proof of the situation of the injured vessel, the other is put to proof of due care, caution and skill on her part. Here, the vessel of the libellants was moored to a wharf or bulkhead, and some twentyfive or thirty-five feet from its outer extremity. The steamboat ran nearly head on against her side, at a point two-thirds of her length inward from her outer end. It is impossible to say, that, when a steamboat runs into or against the wharves of the port or vessels moored thereto, there is no presumption of negligence or want of skill on her part. On the contrary, a vessel thus lying and so run into may rely on proof of those facts, and put the steamboat to her excuse, and, unless such