1 Excessive reliance upon the case of Ker v. Illinois (1886), 119 U. S. 436, has been productive of much confusion of thought. In this case a fugitive from justice, who had been convicted of larceny in Illinois, was seized by force in Peru and brought to the United States by an American agent who had been authorized to receive him upon extradition, but had failed to present the necessary papers to the Peruvian authorities. The Supreme Court held that Ker had failed to establish the existence of any right under the constitution, laws or treaties of the United States which had been denied as a result of his irregular arrest, and that, as an individual, he possessed no right of asylum in Peru. Ker v. Illinois is merely authority for the proposition that an individual is not competent to resist trial in a court of the United States by reason of his forcible seizure in another country. It does not imply that kidnaping, under such circumstances as the above, will not give rise to an international obligation on the part of the United States to restore the fugitive; it implies only that the Supreme Court is not competent under the law of the United States to give effect to such an obligation, should it be shown to exist.

In a case arising between Mexico and the United States in 1906, however, the State Department cited Ker v. Illinois in support of its refusal to release a Mexican national who had been induced by fraud to enter American territory, where he was placed under arrest. Foreign Relations, 1906, II, 1121-1122. It is obvious that an appeal to a national judicial decision, which explicitly left undetermined the points of international law involved in the case, begs the question, and is equivalent to invoking the provisions of municipal law as an answer to demands for the fulfillment of international obligations.

2 Note of the Federal Council to the German Foreign Office, April 1, 1935. Text in journal de Genève, April 3,1935; summary in N. Y. Times, April 3,1935.

3 Jacob had been denationalized under the law of July 14, 1933 ﹛Reichsgeselzblatt, I, 480), which provides that “Nationals of the Reich who reside abroad may be deprived of German nationality if they have by their conduct, contrary to the duty of fidelity to the Reich and the people, injured German interests.” See Preuss, “International Law and Deprivation of Nationality,” 23 Georgetown Law journal (1935), 250 ff.

4 In a note of April 27, the Swiss Government charged that Dr. Walter Richter, who had conspired with Wesemann to entice Jacob to Basel, was actually a member of the Gestapo. journal de Genève, April 30, 1935.

5 N. Y. Times, April 16, 1935. The statement summarizes a note delivered to the Swiss Minister at Berlin on April 13.

6 Wesemann is sought as a National Socialist agent provocateur by the police of Denmark, Belgium and France. See the journal de Genève, March 27, 29, 30, 1935, and the N. Y. Times, April 5, 1935.

7 journal de Genève, April 30, 1935.

8 12 League of Nations Treaty Series, No. 320, p. 281.

9 N. Y. Times, May 7, 1935; Völkischer Beobachter, May 7, 1935.

10 Disputes as to whether a case is justiciable are referred to arbitration. Art. 2.

11 Art. 2, Protocol of Aug. 29, 1928, 88 League of Nations Treaty Series, p. 285.

12 N. Y. Times, April 30, 1935.

13 Ibid.,Ma.y9, 1935. Another recent case of political kidnaping is that of Herr Gutzeit, a German national, who was abducted on Dutch soil, February 4, 1935, and carried to German territory, where he was placed under arrest. N. Y. Times, May 2, 1935. Upon the protest of the Dutch Government, Herr Gutzeit was conducted to the frontier by the German police. He refused, however, to avail himself of his freedom, showing a strange predilection for a German prison which may be explained by the fact that his wife and children are still in Germany. A Dutch accomplice in the kidnaping is held for trial before the Dutch courts. Ibid., May 20, 1935. In a similar case, a group of Austrian National Socialists induced one of their number, whom they suspected of disloyalty, to enter German territory, where he was seized by members of the Austrian Legion and confined in the concentration camp at Dachau. He subsequently made his escape to Austria, where he brought charges against his former associates for kidnaping. Ibid., April 6,1935. On the responsibility of the German state for the acts of agencies of the N.S.D.A.P. (including the Austrian Legion), see Preuss, “International Responsibility for Hostile Propaganda against Foreign States,” this journal, Vol. 28 (1934), p. 664 ff.

14 Travers, Le droit pénal international, III (Paris, 1921), Nos. 1302 n, 1304 x.

15 The British and American courts have held that an individual who has been apprehended in violation of a foreign sovereignty is not competent to resist trial before a court which has jurisdiction of his offense. Thus it was held in Ex parte Scott (1829), 9 Barn. & C. 446, that an individual, under indictment in England, had no right to be released by reason of bis illegal arrest by a state agent in Belgium. When a prisoner is found within the country, he is amenable to justice, and the court is not called upon to consider the circumstances of his arrest. If it was in violation of another sovereignty, the foreign state has the responsibility for vindicating its own law. See also Ker v. Illinois (note 1, above), U. S. v. Unverzagt (1924), 299 Fed. 1015, U. S. v. Insull (1934), 8 Fed. Supp. 311, and the interstate case of Mahon v. Justice (1887), 127 U. S. 700, and the cases cited therein. Under the law of a given state the courts may be incompetent to release a prisoner who has been arrested by state agents in violation of a foreign sovereignty. It does not follow that the arresting state is under no obligation to restore the prisoner to the state of asylum. Whether the appropriate action is taken by the judiciary or by the executive department would seem to be purely a matter of municipal concern. In Germany, as in the United States, it appears that an individual cannot plead his illegal arrest as a bar to prosecution. Reichsgericht, Aug. 29,1888,36 Goldtdammers Arehivfür Strafrecht und Strafprozess, 464; Jan. 29,1900, 33 Entscheidungen des Beichsgerickts in Strafsachen, 99; Nov. 3,1911, 45 ibid., 271; Mar. 24,1922, 51 Juristische Wochenschrift (1922), 1588. Professor Dickinson has argued forcibly that there is a total lack of national, and hence of judicial, competence in cases of seizure or arrest in violation of international law. This journal, Vol. 28 (1934), 231 ff. This view is accepted in the present note, with the reservation that the question as to whether the courts or the executive shall give effect to the international obligation is purely a matter for national regulation. It has sometimes been suggested in American decisions that the state incurs no legal responsibility for an illegal arrest by one of its agents, on the theory that the agents, in acting illegally, act merely as individuals. See In re Moyer (1906), 12 Idaho 250, 262. Such a doctrine, whatever may be its validity as a statement of a principle of American administrative law, obviously can not derogate from the international responsibility of the state for acts performed by its agents within the general scope of their competence, although in excess of their legal authority. See Eagleton, The Responsibility of States in International Law (New York, 1928), 54 ff.

16 Moore, A Treatise on Extradition and Interstate Rendition, I (Boston, 1891), § 191. For other cases, ibid., §§ 192,196, and Moore, Digest of International Law, IV, § 603.

17 Clunet, Questions de droit relatives d, I'incident franco-allemand de Pagny (Paris, 1887), 7-9.

18 Case of Nollet, April 15, 1891, 18 journal de droit international privé (1891), 1188. See also the case of Wechsler, Conseil de guerre de Paris, July 20,1917, 44 ibid. (1917), 1745, and the comment in Travers, op. cit., No. 1302IX. Compare the Savarkar case, Permanent Court of Arbitration, Feb. 24,1911, Scott, The Hague Court Reports (1916), 275.

19 Burckhardt, Schweizerisches Bundesrecht, I (Frauenfeld, 1930), No. 18. For other cases, ibid., No. 28. In 1886 the French Government released a French deserter who had been induced by individuals to enter France from Belgium. He was arrested on French soil by gendarmes who had been forewarned of his arrival. See Alphand, “L'expulsion des deserteurs et I'extradition déguisée,” 6 Revue de droit international privé et de droit pénal international (1910), 52 ff. In a subsequent case, in which the fugitive was delivered to the French authorities by force, the French court asserted its jurisdiction. Travers, op. cit., No. 1302 Tm. In Ex parte Wilson (1911), 63 Tex. Crim. 281, the court refused to discharge a prisoner who had been forced by Mexican citizens upon American territory, where he was arrested on an extradition warrant based upon an indictment pending in Nevada. It was pointed out that Texas officers had no part in the irregular recovery, the court observing that “If it had been shown that the officers of this country were parties to the illegal conduct of the citizens of Mexico, a different case might be presented.” The Schnaebelé case, although frequently cited in this connection, is of doubtful value as a precedent. It was ultimately decided that Schnaebelé, having been invited to a conference on German territory for the discussion of official border problems, enjoyed an administrative safe-conduct. The German Government denied that there had been a violation of French territory or that Schnaebelé had been enticed to German territory for the purpose of placing him under arrest. See Travers, op. cit., No. 1302T, and Mettgenberg, Freies Qeleit und Exterritorialitat (Berlin, 1929), 17-21.

20 There may, however, be an obligation to extradite or to punish the kidnapers. See Villareal et al. v. Hammond (1934), 74 Fed. (2d) 503.

21 See Foreign Eelations, 1878, p. 675, and 1906, II, 1121-1122; and Moore, Extradition, §§ 190,196. In 1883 the Austrian Government refused to release two persons apprehended on Swiss territory by Austrian customs agents, on the ground that a Swiss gendarme had coöperated in the arrest. Clunet, op. cit., 7. It has been held by the French courts that there is no obligation to release a fugitive from justice expelled by a foreign state to French territory. Case of Gallard, Cour de cassation, May 3, 1860, Dalloz Periodique (1860), I, 576; case of Lepontois, Conseil de guerre de Bordeaux, Mar. 20, 1908, Bull, crim., CXIII, No. 121, p. 218. Several cases contra are discussed and criticized in Travers, op. cit., No. 1302 ”.

22 Art. 5,12 League of Nations Treaty Series, No. 320, p. 281.