Hurt, J.
Blandford was extradited from the Republic of Mexico upon a charge of theft. Before the arrest of the appellant in Mexico under and by virtue of the extradition papers, the grand jury of Travis county presented in the District Court a bill pf indictment against him for the embezzlement of fifty-one hundred dollars. He was placed upon trial upon this bill charging him with embezzlement; to which he pleaded in substance, that the court, by reason of the fact that he had not been extradited for this offense, had no right to compel him to answer thereto. This plea was very full, setting out not only the facts clearly and distinctly, but the treaty, between the Mexican and United States governments.
Upon motion of the State tins plea was stricken out, and the defendant was forced to trial upon the indictment for embezzlement. He was found guilty, and his punishment was assessed at confinement in the penitentiary for the term of five years. Judgment being entered on the verdict, defendant appeals for relief to this court.
The correctness of the action of the court below in sustaining the motion of the "State to strike out the plea depends upon what constitutes a true construction of articles first and third of the treaty between the Republic of Mexico and the United States, dated December 11th, 1861, and the proper decision of the question as to how far the judicial tribunals of the Federal and State governments are required to take cognizance of and give effect [636] to treaty stipulations between the foreign and home governments.
Although it is stated by Story and Kent that under the Law of Nations sovereign states are bound to deliver up persons charged with or convicted of crimes committed in the other country upon demand, this doctrine never obtained permanently in the United States. With us the doctrine has long prevailed, that the foreign government has no right to demand the surrender of a violator of its laws, unless under and by virtue of treaty stipulations. Lawrence’s Wheaton on International Law, p. 233, and authorities cited; Op. of Att’y Gen’l, vol. 6, p. 431. If, then, this right of one government to demand and receive from another the custody of an offender who has sought asylum upon the soil depends upon the existence of treaty stipulations between these governments, it follows that this right to demand, receive and punish must be measured and restricted by the provisions, either expressed or implied, of the treaty. This leads us to a discussion of what constitutes a true construction of articles 1 and 3 of the treaty between Mexico and the United States.
Art. 1. “It is agreed that the contracting parties shall, on requisition made in their name through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused of the crimes enumerated in art. 3d of the present treaty, committed within the jurisdiction of the requiring party, shall seek an asylum or shall be found within the territories of the other: 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.”
Art. 3. “Persons shall be so delivered up who shall be charged, according to the provisions of this treaty, with [637] any of the following crimes, whether as principals, accessories or accomplices, to wit: Murder (including assassination, parricide, infanticide, and poisoning); assault with intent to commit murder; mutilation; piracy; assault; rape; kidnapping, defining the same to be-the taking and carrying away of a free person by force or deception; forgery, including the passing or making or knowingly passing or putting in circulation counterfeit coin or bank notes, or other paper current as money, with intent to defraud any person or persons; the introduction or making of instruments for the fabrication of counterfeit coin or bank notes or other paper current as money; embezzlement of public moneys; robbery, defining the same to be the felonious and forcible taking from the person of another of goods or money to any value by violence or putting him in fear; burglary, defining the same to be breaking and entering into the house of another with intent to commit felony; and the crime of larceny of cattle, or other goods and chattels of the value of twenty-five dollars or more, when the same is committed within the frontier states or territories of the contracting parties.”
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Hurt, J.
Blandford was extradited from the Republic of Mexico upon a charge of theft. Before the arrest of the appellant in Mexico under and by virtue of the extradition papers, the grand jury of Travis county presented in the District Court a bill pf indictment against him for the embezzlement of fifty-one hundred dollars. He was placed upon trial upon this bill charging him with embezzlement; to which he pleaded in substance, that the court, by reason of the fact that he had not been extradited for this offense, had no right to compel him to answer thereto. This plea was very full, setting out not only the facts clearly and distinctly, but the treaty, between the Mexican and United States governments.
Upon motion of the State tins plea was stricken out, and the defendant was forced to trial upon the indictment for embezzlement. He was found guilty, and his punishment was assessed at confinement in the penitentiary for the term of five years. Judgment being entered on the verdict, defendant appeals for relief to this court.
The correctness of the action of the court below in sustaining the motion of the "State to strike out the plea depends upon what constitutes a true construction of articles first and third of the treaty between the Republic of Mexico and the United States, dated December 11th, 1861, and the proper decision of the question as to how far the judicial tribunals of the Federal and State governments are required to take cognizance of and give effect [636] to treaty stipulations between the foreign and home governments.
Although it is stated by Story and Kent that under the Law of Nations sovereign states are bound to deliver up persons charged with or convicted of crimes committed in the other country upon demand, this doctrine never obtained permanently in the United States. With us the doctrine has long prevailed, that the foreign government has no right to demand the surrender of a violator of its laws, unless under and by virtue of treaty stipulations. Lawrence’s Wheaton on International Law, p. 233, and authorities cited; Op. of Att’y Gen’l, vol. 6, p. 431. If, then, this right of one government to demand and receive from another the custody of an offender who has sought asylum upon the soil depends upon the existence of treaty stipulations between these governments, it follows that this right to demand, receive and punish must be measured and restricted by the provisions, either expressed or implied, of the treaty. This leads us to a discussion of what constitutes a true construction of articles 1 and 3 of the treaty between Mexico and the United States.
Art. 1. “It is agreed that the contracting parties shall, on requisition made in their name through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused of the crimes enumerated in art. 3d of the present treaty, committed within the jurisdiction of the requiring party, shall seek an asylum or shall be found within the territories of the other: 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.”
Art. 3. “Persons shall be so delivered up who shall be charged, according to the provisions of this treaty, with [637] any of the following crimes, whether as principals, accessories or accomplices, to wit: Murder (including assassination, parricide, infanticide, and poisoning); assault with intent to commit murder; mutilation; piracy; assault; rape; kidnapping, defining the same to be-the taking and carrying away of a free person by force or deception; forgery, including the passing or making or knowingly passing or putting in circulation counterfeit coin or bank notes, or other paper current as money, with intent to defraud any person or persons; the introduction or making of instruments for the fabrication of counterfeit coin or bank notes or other paper current as money; embezzlement of public moneys; robbery, defining the same to be the felonious and forcible taking from the person of another of goods or money to any value by violence or putting him in fear; burglary, defining the same to be breaking and entering into the house of another with intent to commit felony; and the crime of larceny of cattle, or other goods and chattels of the value of twenty-five dollars or more, when the same is committed within the frontier states or territories of the contracting parties.”
It is seen that the treaty enumerates eleven well defined crimes for which a party may be extradited, and stipulates that the party shall be delivered up to justice who is accused of one of the enumerated crimes, 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 shall be found would justify his apprehension and commitment for trial if the crime had been there committed. Why this specific enumeration of the crimes,—this proviso? Does not this enumeration evidently exclude crimes not named therein? If not, why enumerate? If the maxim “ expressio unius est exclusio alterius ” does not apply here, it can never be applied to any act either of Congress or the State Legis[638] latures. It would be a useless, antiquated maxim and should be expunged from legal literature. To hold that it has no application- in this treaty would render treaties a snare and a delusion, a farce and a solemn fraud. This treaty negatives, by imperative necessity as patent as that there is life in nature, the right to extradite only for crimes named in the' treaty, and not then until after an examination into the charge by the authorities of the government upon which the demand is made,— the charge named in the treaty or one of them and contained in the requisition. Why stipulate in solemn compact that the government upon whom the demand is made shall have the right to examine into the charge, and, if a prima facie case is not shown, to refuse to surrender, if after being extradited the party extradited can be forced to answer to a charge neither named in the treaty nor examined by the authorities of the government making the surrender ? In exact and unequivocal language the treaty sets out the precise purpose for which the fugitive is to be surrendered, and negatives by implication as strong and conclusive as a direct and positive negation that the person surrendered may be tried for offense different from that for which he was extradited under the stipulations of the contract made between the high contracting parties. The treaty names embezzlement of public funds. The indictment in this case is for the embezzlement of private funds. But be this as it may, the principle would not be affected if the funds were public. Not having been extradited for that offense, the party could not be placed on trial therefor. As stated by Chief Justice Lindsay in Commonwealth v. Hawes: “It would present a remarkable state of case to have one government saying in substance to another,—you cannot demand the surrender of a person charged with embezzlement. My judges or other magistrates have no right of authority upon such a demand either to apprehend the [639] person so accused, or to inquire into the evidences of his criminality; and if they should assume to do so, and should find the evidence sufficient to sustain the charge, the proper executive authority could not lawfully issue the warrant for his surrender. But you may obviate this defect in the treaty by reciting the demand ' upon the charge of forgery, and if you can make out a prima facie case against the fugitive you may take him into-custody, and then, without a breach of faith, and without violating either the letter or spirit of our treaty, compel him to go to trial upon the indictment for the non-extraditable offense of embezzlement. ”
All civilized nations agree on one point, and that is that they will not deliver a fugitive to be tried for political offenses, and through great caution with a view to prevent this, the sixth article of the above treaty provides among other things that “the provisions of the present treaty shall not be applied in any manner to any crime or offense of a purely political character.” What supreme nonsense is this if the fugitive can be extradited for one crime and then placed on trial for another,— make a prima facie case of murder, extradite, and then try him for rebellion! Our conclusion is, that the party extradited must be tried, if tried at all, alone upon the charge upon which he was extradited, unless the judicial tribunals of this State have no right to take cognizance of, and give effect to treaty stipulations between our own and foreign governments. That the judiciary of this State not only has the right, but is sworn to take cognizance of and give effect to treaties, cannot be questioned. Section 2, article 6 of the Constitution declares that “this Constitution and the laws of the United States made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. ”
[640] ■’ With us, under our Constitution, a public treaty is not merely a compact or bargain to be enforced by the executive and legislative departments of the Federal government, but living laws, operating and binding the judiciary of this State, as much as the Federal and State Constitutions, or the acts of Congress or those of the State Legislature. It follows, therefore, that the judicial tribunals of this State are required to take cognizance of, and give effect to the treaties made by the Federal government with other nations, just as if they composed a part of our Criminal Code. Indeed, they stand, if made in pursuance of the Constitution, upon higher ground than our State Constitution or any act of the Legislature of this State; for, if there be a conflict, the Federal Constitution being supreme, all treaties made in pursuance thereof must of necessity be supreme. Hence in case of conflict State Constitutions and acts of the Legislature irmst yield. In our opinion, then, the judiciary of this State is bound to take notice of and enforce treaties, treating them as if they composed a part of our Code.
With other nations, treaties, being considered compacts, and not legislative acts, are to be carried into execution by the sovereign powers of the respective nations which are parties to the compact. This, however, is not the case in the United States, for by our Federal Constitution treaties are declared to be laws of the land. They are therefore to be regarded and enforced by the State judiciary as equivalent to acts of the Legislature, without the aid of legislative enactments. Foster v. Neilson, 2 Peters, 253, per Chief Justice Marshall. If the Federal Constitution, or a treaty, inhibits the doing of a certain thing, no legislative or executive action is required to authorize the courts to decline to override these limitations or restrictions, “ for the palpable and all-sufficient reason, that to do so would be not only to violate the public faith but to transgress the supreme law of the land.”
In view of these-principles of law, we hold then that it [641] is the duty of the courts of the State to take cognizance of, construe, and give effect to the treaties of the Federal government made with other nations; and that under a proper construction of the treaty with Mexico, the defendant could not be legally called upon to answer any other crime save that for which he was extradited. Com. v. Hawes, Law of Extradition (Spear), 138; Burley’s case (Spear), 161; Ham v. State, 4 Texas Ct. App. 645.
It is urged in the very able brief of the assistant attorney general that this plea to the jurisdiction is not known to our Code of Criminal Procedure, and that therefore the court below could not entertain it, and acted properly in striking it out. The plea to the jurisdiction, in our opinion, is inherent, and a defendant cannot be deprived of the right to interpose it. There are but four pleas which can be interposed by the defendant, under the Code Crim. Proc., to wit: pleas of guilty, not guilty, former conviction and former acquittal. But under the Bill of Eights “no person for the same offense shall be twice put in jeopardy of life or limb.” Suppose a defendant desired to plead former jeopardy, where in the Code of Criminal Procedure is this plea provided for ? By this sacred Bill of Eights he is protected and shielded against being twice placed in jeopardy, but when he proposes to assert and shield .himself with this weapon of defense, he is met with a silent Code, thus rendering inoperative and nugatory this inestimable right. Against this we protest, for we have seen that when the Constitution or treaties prohibit the doing of a certain thing, to authorize the courts to refuse to do the inhibited act it is not necessary to have a legislative enactment. With equal force does this principle apply to the inhibitions contained in the Bill of Eights.
It is apparent from the reasons above stated that the court below erred in striking out the defendant’s plea. The judgment is reversed and the cause remanded.
Reversed and remanded.