Storti v. Massachusetts
On May 23, 1901, the appellant filed in the circuit court of the United States for the district of Massachusetts his petition in habeas corpus.

In that petition he stated that he was a citizen of Italy, and a subject of its King; that he was detained by the respondent under a warrant issued by the superior court of Suffolk county, reciting a conviction of murder, and directing the warden to inflict death by passing a current of electricity through him; that the time fixed for the execution of the sentence was on the week beginning April 7, 1901; that on April 9, 1901, the governor, with the advice of the council, issued a document purporting to respite the execution of sentence, the respite to expire on Saturday May 11, 1901; that on May 10, 1901, he presented a petition for a writ of habeas corpus to the said circuit court, which petition was denied on May 11, 1901; that from such denial he forthwith claimed and was allowed an appeal to the Supreme Court of the United States, and that such appeal was there pending and undetermined. The petition further stated that on May 10 he filed in the superior court for the county of Suffolk a motion for a new trial, in accordance with the provisions of the Massachusetts statutes, which motion was still pending and undetermined.

Upon these facts he asserted, first, that no law of Massachusetts provided for the punishment of a person sentenced to death, where the week appointed by the court for the execution had elapsed without execution and without any lawful action by the governor in the way of pardon, commutation, or respite, and therefore that the detention by the warden was contrary to the provisions of the 1st section of the 14th Amendment of the Federal Constitution; second, that for the same reason the detention was contrary to the 3d article of the treaty between the United States of America and His Majesty the King of Italy (17 Stat. at L. 845), and contrary to § 2 of article 6 of the Constitution of the United States; third, that by § 28 of chapter 214 of the Public Statutes of Massachusetts the court in which the trial of an indictment is had may at the term of the trial, or within one year thereafter, grant a new trial; that therefore execution could not lawfully be done upon him until the expiration of a year from the term at which he was convicted, to wit, in this case before July 1, 1901, and that the execution of the sentence before that date would deprive him of his life without due process of law, and would deny to him the equal protection of the laws, contrary to the 1st section of the 14th Amendment; fourth, that for the same reason the execution of the sentence would be contrary to the 3d article of the treaty between the United States and Italy; fifth, that the execution of the sentence within the year would deprive him of his right under the statutes of Massachusetts to move for a new trial within the year, and of his right to be present at the decision of such motion, which right was guaranteed to him by article 23 of the treaty between the United States and Italy, which reads as follows: 'The citizens of either party shall have free access to the courts of justice, in order to maintain and defend their own rights, without any other conditions, restrictions, or taxes than such as are imposed upon the natives. They shall, therefore, be free to employ, in defense of their rights, such advocates, solicitors, notaries, agents, and factors as they may judge proper, in all their trials at law; and such citizens or agents shall have free opportunity to be present at the decisions and sentences of the tribunals in all cases which may concern them, and likewise at the taking of all examinations and evidences which may be exhibited in the said trials;' sixth, that the motion for a new trial which he had filed on May 10 not having been determined, execution could not lawfully be done upon him until the decision of that motion, notwithstanding which he had reason to apprehend that the respondent intended to immediately, upon the determination of the appeal to the Supreme Court of the United States, cause execution to be done upon him, which execution would deprive him of his rights under the 14th Amendment and article 23 of the treaty; seventh, that the respondent derives his authority to hold the petitioner in custody solely by virtue of the provisions of chapter 326 of the Massachusetts Statutes of 1898, and that by them no authority was given to him to retain the custody of the petitioner after the expiration of the week appointed by the court for the execution of the sentence, except through the lawful action of the governor in granting a respite, that no lawful action had been taken by the governor in the matter, and that therefore the petitioner was deprived of his liberty contrary to the 14th Amendment; and, eighth, that for the same reason he was deprived of his liberty contrary to the 14th Amendment and the 3d article of the treaty between the United States and Italy. The 3d article of the treaty between the United States and Italy, referred to in this petition, is as follows:

'The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives.'

On the presentation of this petition to the circuit court, that court dismissed the same for want of jurisdiction, without prejudice to an application to the courts of the state. Re Storti, 109 Fed. 807. A certificate of this fact was signed by the circuit judge, and from the order dismissing the petition an appeal was taken to this court.

Messrs. G. Philip Wardner and W. M. Stockbridge for appellant.

Messrs. H. M. Knowlton and Arthur W. DeGoosh for appellees.

Mr. Justice Brewer delivered the opinion of the court: 

Notes
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