The Sun.
London, England, 1864-09-13 00:00:00

The Extradition of Muller.

Owing to the extraordinary interest felt by the
public in this case we take from the New York
papers full details of the hearing in the New York
District Court. The lengthened summary which
we gave exclusively yesterday, however, conveyed

the main features of the case.
The hearing on the extradition case of Francis
Muller, charged with the murder of Mr Thomas
Briggs, near Hackney, London, on the 9th of July
last, was resumed on the 27th ult. before Commis.
sioner Newton. The British Government, through
its consul at this port, was represented by Mr F.
F. Marbury ; the accused by his assigned counsel,
Messrs. Chauncey Schaffer and E. Blankman.
The examination took place in the United States
District Court-room, which was thronged with per-

sons, who evinced the greatest in the proceedings,
and who anxiously sought fora view of the accused.
The latter sat beside his counsel with an unmoved

countenance and a calm demeanour, apparently the
moat uninterested and unaffected parson in the

denely crowded court.

Mr Blankman said that as the prosecution had
closed their case on the previcus day, having had
everything in preparation for submitting it to the
Court, it devolved upon him to make a few remarks,
in urging upon the Court an application for an ad-
journment to give the counsel assigned to the ac-
cused an opportunity to read over the testimony,
and to agree upon the proper line of defence. There
was, however, much to urge preparatory to entering
upon that stage of the proceedings. The warrant
issued for the apprehension of Muller set forth
that " on the 9th day of July he (Moller) did felo.
niously, wilfully, and of malice aforethought, kill
and murder one Thomas Briggs." It a case of

murder had been made out in accordance with the
statutes of Great Britain and the law of this land

the duty of the Court would certainly be a plain

one. Bat if to the mind of the Court this did not

appear to be (as it did not appear to him) legal
evidence of a murder having been committed, then
the case did not come within the treaty of 1842,

and there were no grounds whatever for the appre-
hension and commitment of the accused. If the case
even be one of manslaughter it would not come
within that treaty. Whatever view might be taken

of the case, it would be an aet of simple, justice to
allow counsel for the defence an opportunity to
examine the testimony adduced against their unfor•
tunate client. He, therefore, moved that the fur-
ther hearing of the case be adjourned, in order to
give counsel time to prepare their defence.
Mr Marbury, on the part of the British Govern-
ment opposed the motion for the adjournment. On
the day the prisoner's arrest, Mr Beebe had been
assigned by the Court counsel for the accused. That
gentleman had accepted the task, and had an inter-
view with the prisoner, and it was expected that he
(Mr Beebe) would have been present to defend him
on the day fixed for the examination. The deposi-
tions in the case had been handed to the two able
counsel subsequently (in consequence of the absence
of Mr Beebe) assigned for the defence, and those
gentlemen were present on the previous day when
the testimony of the witnesses was given. This in-
quiry was a preliminary one. The commissioner
was sitting in the capacity of an ordinary commit-
ting magistrate, not for the purpose of determining
whether this man was absolutely guilty or not, but
whether there was a sufficient degree of suspicion
of criminality against him to justify his commit.
ment for trial, supposing the offence charged had
been committed here. In other words, supposing,
instead of Mr Briggs having been murdered between
Bow and Hackney, he had been murdered between
Twenty seven-street and Harlem, under precisely
similar circumstances as appear in this case,
the question then being whether the evidence
that h,is been presented would justify the commit-
ment of the accused for trial in the ordinary way,
and according to the duo course and process of
law. IL (Mr Marbury) would extremely dislike to
do anything bearing the appearance of a desire
to withhold from the unfortunate man any privi-
lege or right that belonged to him ; but it seemed
to him that the request made by counsel was not a
reasonable one. The wno!e facts lay within an
exceedingly narrow compass, and from the reading
of the depositions, and from the testimony adduced
on the previous day the general conclusion arrived
at must be that, whatever the ultimate fate of the
man may be, whatever the result of the more formal
and legal investigation, enough has appeared and
transpired here to justify his commitment. What
follows? He is committed for trial ; he is sent to
the scene of the murder, to the place where he can
find and produce witnesses who will state all the
circumstances of exculpation that can be found. A
great and appalling crime has been commhted, and
circumstances of great weight and moment con-
nected the accused with the commission of that
crime. Necessarily, the case must undergo an in-
vestigation, and it is not depriving the prisoner of
the right to the fullest defence secured to him by
the common law of England and by the practice of
English jurisprudence to commit him for trial. He
did not think that anything was likely to arise in
the case that heretofore failed to present itself to
the experienced and acute counsel who represent
the accused on this occasion ; and it appeared to
him that great inconvenience and detriment would
arise from any postponement of the case.
Mr. Blankman briefly responded to the remarks
of the counsel for the prosecution, urging anew his
motion for a brief adjournment.
Mr. Chauncey Shaffer folowed for the defence.
advocated no new doctrine, advanced no new
law when he declared that there was nothing in
the evidence before the Court to justify the com-
mitment of the accused on the charge here pre•
ferred against him. The accused was a foreigner,
a German by birth, who had a few days since
arrived on these shores in the ordinary course of
transit. When any man thus lands here he is
presumed to be innocent of any crime. The law
throws around him that !shield of presumptive inno-
cence, and he is secure, and that power which
sends forth fleets and armies, and which
on this occasion is embosomed in your honour, is
here to shield and defend him from any violation
of that principle. He was not present to-day to
quarrel with the policy of England; but here he
would fearlessly state, at the outset, that he did not
regard the treaty under which it was thought to
extradite this man as enything else than a violation
of the constitution of the United States, and utterly
inoperative. The great Webster held and ruled and
wrote and declared that MiLeod, who crossed the
Canadian frontier, and landed at Slosser, and who
murdered Duprey and set the steamer Caroline on
fire, and theu set her afloat, so that she went down
into the sublime depths of old Niagara, that be
should be set at large. Great Britain defended
M`Leod as justified by the mixed and unsolemn
state of war that then existed. Webster was for
discharging that man, after he had been arrested on
the soil of New York and indicted for trial on
the charge of murder, But the Supreme Court of
the State held him, and he was tried and acquitted
but the dignity and sovereignty of the Empire State
was vindicated, and Excelsior is her proud title
still. Now the constitution of the United States
provides that no man shall be put in peril of his
life or liberty, except upon indictment by a grand
jury or presentment of a grand jury, which
means the same thing. The extradition of this
man is claimed by virtue of a treaty between this
country and England. Treaties are made by the
President and (submitted by him to the Senate, and
when ratified by that body they become part of the
law of the land, with almost the same binding force
as the constitution itself if the treaty be not in
violation of the constitution. He would not stand
there and say that it would be better that the nation
should perish than the constitution be violated, but
ho "outs °”' that it would 1)4 far better for him as
an individual, and for all of us, that this ono° proud
island and all it contains ahould ha destroyed, better
indeed that this goodly became a sand-
bank for the storms of earth and ocean to
meet in conflict dire—that it should bo a
spot for sea moast..ira to fatten on, than that the
supreme law of the island should be violated by the
treaty-making power of any other power. Now, by
this treaty you are asked to surrender the man to be
tried for his life before he is yet indicted. In that
the treaty is in contvevention of the constitution.

Yon aro asked to do what the President and Cons
gress could not constitutionally do—put this man
in the peril of his life before an indictment for any
offence is found against him. He did not ask the
Court to say that the treaty was unconstitutional,
but he would show conclusively that it was at pre-
sent suspended by the act of the British Govern-
ment itself, who seeks here for its enforcement.
The ocean is as much a portion of the heritage of
the American people as the broad prairies of the
West. He would come briefly to the main point
of his argument. It was an elementary principle
recognised by the law of nations, that a state of
war between the two nations suspends the opera-
tions of all treaties. But it may be said, there is no
war between this country and Great Britain.
Neither is there in their sovereign relations and
capacity, but there is a war notwithstanding.
Thera does exist what the eminent Grotius terms
" a mixed and unsolemn state of war" between the
two nations—between the subjects of England on
the one side, and the subjects of the United States,
as represented in her commerce on the ocean, on
the other. The test is easy of application. For
instance, the officers who are here in court to-day,
representing their Sovereign while in pursuit of
this man, supposed to have his hands red with the
blood of his fellow man, were actually afraid this
supposed murderer would escape condign punish-
ment. Why ? What gave rise to their fears ? The
fear that a pirate vessel infesting the ocean as the
highway of nations—sent out from the friendly
British ports by British subjects, would snatch from
British justice that which it was in pursuit of.
Britain committing suicide upon her own justice.
That is a state of war, and that state of things by
the common consent of mankind suspends all
treaties between the two countries. There is that
hostility on the part of English subjects towards
this country which the writers on international
law denominate mixed and unsolemn war, and
which can be carried on without any formal declas
ration of war. There are three sorts of war—
public, private, and mixed. Mixed war is subdi-
vided into solemn and unsolemn war. When hos-
tilities are carried on without any previous declara-
tion of war that is a mixed and unsolemn war; and
this, as in any war, leads to a suspension of treaties
previously existing, being a war between the sub-
jects and citizens of one nation against another
nation ; and that nation or power which cannot
prevent this state of things, that nation which can-
not control its own subjects ceases to be a nation.
England cannot say she is neutral in this matter,
when she furnishes our rebellions subjects with yes•
sels of war, mans them, opens her ports to them,
furnishes them with arms and ammunition, and
sends them forth on their errands of destruction,
burning merchant ships, and destroying the com-
merce on the seas of a friendly power. The Alas
bama, built and armed in England, and manned by
Englishmen, sunk and burned 120 of our ships ;
and when at last she meets the fate she so richly
deserved, we find an English subject, in his yacht,
snatching from an officer his legal captives. Look
at the case of the steamer running from this port
to Portland, in Maine, seized by pirates, the engis
neer murdered, passengers murdered, the vessel
brought into an English port, and the murderers
and pirates protected by British subjects. But, as
in the case before the court, when a man is found
murdered near London, they pursue the supposed
murderer to our shores, and cry, " Treaty, treaty,
treaty." They tore that treaty to pieces three
years ago. (Applause.) Nay, more, great argosies
laden with the choicest treasures of the nation have
been eunk in countless numbers, with connivance
and consent of this ntutral friendly power. The
torch has been applied by the pirate Florida, built
and seat out by English subjects, a robber
on the highway of nations, murdering our
citizens and destroying our commerce, and
humiliating the nation before the world, so that no
longer is it an honour to claim to be an American
citizen. This was not so much the act of the Goe
vernment or the people as of the aristocracy, who
misrepresented the government and the people. The
latter were true to liberty and to the United States.
God bless them. This treaty, then. under which
the rendition of this man is demanded is suspended
and Is a dead letter until this mixed and unsolemn
state of war on the part of the British 80j-es
against the Government ceases. England to claim
this man must come into court with clean hands.
She must not coece here and ask of us to honour her
justice when she dishonours her own justice, breaks
her treAties, and cries peace and neutrality while at
the same time she lets slip the dogs of war, and
with piratical vessels drives our peaceful commerce
from the ocean. This cannot long continue. Better
for us we had war at once, when we could send our
cruisers and assert our rights of retaliation on the
ocean. The times of Decatur are not forgotten,
and we have aFarragut worthy to take the first place
in any contest, where the pride and honour and
courage of America are at stake. (Applause.)
Leaving the case of his client in the hands of the
court he would close.
Inspector Tanner was re-examined as to the height
of the prisoner and his personal appearance, to show
that be could not be one of the two men seen in the
compartment of the railway carriage with Mr
Briggs on the night of the murder.
This ended the case for the defence.
Mr Marbury, for the British Government, then ad•
dressed the Court. He did net think it quite generous or
becoming in him to enter upon a criticism of the speech of
the gentleman who had just spoken, nor would he attempt
to follow him through the wide and discursive range of
topic he had introduced int.) the case. He would even
hold himself excused from the necessity of as much
as adverting to many of the irrelevant matters which
he had dragged into the discussion of this question.
All that was immaterial. With reference to the
treaty under which the accused was claimed, whether
that treaty was faithfully observed or not was not a ques-
tion for this Court to determine. That was for the execu-
tive government, and when the executive shall have taken
the ground that by reason of the grievances to which coun-
sel had so eloquently referred, the Ashburton treaty was of
no further force or effect. it would then be time enough
for the courts to follow the action of the executive. But as
long as the government of the two countries regarded that
treaty as a subsisting treaty then it holds its place under
the constitution, next to which and under which it is the
supreme law of the land. It would be trifling with the time
of the Court to pursue that point any further. The only
excuse or apology counsel could possibly offer for the intro-
duction of such topics must be in the tact that the case on
its own merits affirded no entertainment to the audience
which the counsel is always expected to produce whenever
he appears in court. This was a very serious and grave
business for this young man, and looking upon him one
could hardly conceive that he perpetrated the dreadful
crime with which he stood charged. And if he could escape
from the evidences of guilt that came from so many quar-
ters, all converging and pointing to him, he (counsel)
would experience relief from a weighty responsibility. This
was not a case for sickly sentiment or sympathy. If he were
really guilty of murdering the venerable man (Ur Bilges)
in the way described, then his crime was one of the blackest
dye, as well as one of the meanest and most revolting in all
its aspects, that had ever been perpetrated. The facts were
these .—First, the corpus Mick is fully established, At
half-past 9 o'clock, July 9, 18d4, Mr Briggs was seen alive
and in perfect health. In two and a half or three minutes
afterwards he lay moaning and insensible in the six-feet
way of the North la. ndon Railway. The carriage in which
he had been riding, and from which he was thrown, exhi-
bited proofs of a recent and bloody struggle. Several mortal
wounds were inflicted on the deceased, from the effects of
which he soon afterwards died. 2d, the evidence which has
been adduced shows clearly and conclusively the prisoner
is guilty of the murder of Mr Briggs with which he is
charged. On Saturday evening, July 9, between half-past
seven and half-past eight o'clock, Muller left the house of
Mrs Repsch, 12;, Jewry-street, Aldgate. He did not return
that evening to his lodgings as it was usual for him to do.
On examining the compartment in which Mr Briggs had
been oseaulted and murdered, a hat was found, made by T.
H. Walker, 42, Crawford-street, Marylebone, London. It
was crushed, and had marks of blood upon it. This hat is
proved by the witness Matthews, who has been examined
here, and by 'Mrs Repsch, whose deposition has been taken,
to have belonged to Muller, and to have been worn by him
up to the time of the murder or nearly so. Mr Briggs's hat
was taken away by the murderer. Muller, on the 11th day
of July, had on at Mrs Repseh's a nearly new hat, with
white silk lining. Ile told Mrs Repsch his old one had
been thrown into a duathol4. When arrested here a hat is
found stowed array in his
box. Mr Briggs's hat is gone,
and Muller is found with one in his box. From the person
nt Mrßriggs a gold watch and chain were taken b y violence..
This chain is proved distinctly to have been in Muller 's
possession on Monday, July 11. On that day it was ex-
changed by him at the shop of Mr Death, 55, Cheapside,
London, for another chain and ring. This other chain was
packed in one of Mr Death's card-boxes and delivered to
the prisoner, Ile subsequently exhibited this new chain
[
and Tin?, to several persons. The box w.th Mr Death's name
and address on, ho gave to Mr Alatthors' little dart.7,4!er.

On the 12th July, 1864 (Tuesday), the prisoner pawned
the new chain to Mr Annie, No. 121, Minories, and re-
ceived a pawn ticket therefor. On the 13th July (Wed-
nesday) 1861, the prisoner sold this pawn ticket to John
Haffa, his room mate, for the sum of 12e, which sum he
needed, as he said, to pay for his passage to America.
On his arrival here he is identified clearly by Mr Death as
the person who sold him Mr Briggs's chain. Ho is also
identified by Matthews as the owner of the hat which was
found in the compartment of the railway carriage where
Mr Briggs received the wounds, from the effectq of which
he died. There is also found in Muller's box a heavy gold
watch, made by Archer, of Hackney, where Mr Briggs re-
sided. Muller is not known to have had any watch of his
own. If he had he would probably have exhibited it, or it
would have been seen by Matthews and other witnesses to
whom he showed the chain and ring and with whom he
was on terms of intimacy. Third, the evidence is such as
would plainly require the commitment of Muller for trial if
the offence had been committed here, and it results that a
certificate leading to his extradition, that the case may un-
dergo an investigation, should be granted. Thus the chain
of evidence was complete; not a link was wanting to con-
nect the prisoner with the commission of the crime with
which he stood charged.

Commissioner Newton then proceeded to deliver the
decision of the Court. Having complimented the counsel
assigned for the defence for the able manner in which
they had defended their client, he said—l am not at a
loss to see, after carefully looking over the testimony and
weighing it in my mind, that there is sufficient testi-
mony for me, sitting in the capacity of a committing
magistrate, to commit this man for trial. My simple
duty is to determine whether there is sufficient probable
cause from the evidence which has been produced to that
effect, which would cause me to remand him that ho may
have an opportunity to be tries at the place where the crime
was committed, and there proving his innocence, or, being
found guilty, to be punished for his crime. It is not neces-
sary for me to determine absolutely that he is guilty of the
crime. The fact to determine is, has a mime been com-
mitted ? If it has been committed, is there probable cause,
from the evidence, to show that the party accused is the
party who has committed the crime? Now, it appears to
my mind, looking at it in the light of probable cause, that
my duty is very simple and very plain. Ido not desire to
sit in judgment upon this man—far be it from me. I wish

it was in my power to discover any evidence or trace of
innocence to justify me in withholding the certificate of
extradition. Bat lam free to say that, from all the com-
bined circumstances, the chain which seems to have been
inked around this man points fatally to him as the guilty
man. So clear and distinct is the question of probable
cause that I cannoz, for one moment have a doubt as to the
proper course to pursue. Under the circumstances lam
constrained to grant the certificate, and the prisoner there-
fore stands committed.
The prisoner was then removed.

SPIRIT OF THE PUBLIC JOURNALS.

TIMES.—While Lord Russell has declined to in.
:ervene on behalf of the Georgia, the Governmen

of the United States has justified the confidence of
the English public by ordering the immediate extra-
dition of Franz Muller. It was only a vague idea
that the evidence might be incomplete or that some
technical point might be raised to procure delay
that suggested any doubt as to the issue of the pro-
ceedings at New York. Whatever may be said
against American politics, and even against the con-
duct of the American Judges when they merge their
proper character in that of politicians, no well-in-
formed:person would venture to speak disparagingly
of American tribunals. Acting in their judical capa-
city, Anierican jurists have merited and obtained a
very high place among legal authorities, and the
present Attornes -General has more than once taken
occasion to cite with the utmost respect their deci-
sions on international questions. In the present in-
stance, indeed, there was little room for the exercise
of a magnanimous impartiality, inasmuch as the case
—that is, the prima facie case upon which the requi-
sition was founded—proved to be free from all doubt.
The only hitch was as to the identity of the watch,
and the want of this link was not material.' Nothing
seem to have been elicited in cross-examination that

could loft ience the result of the inquiry, except the
alleged want of resemblance between the prisoner
and either of the persons seen in the railway car,
riage with Mr Briggs. Nothing was said in the
course of the defence that could shake the presump-
tion of Muller's guilt, except in this one particular,
and the terms used by Commissioner Newton in
granting the necessary certificate indicated no hesi-
tation whatever—" My duty is simple and plain.
I do not desire to sit in judgment on this man ; far be
it frcm me. I wish it was in my power to discover a
trace of innocence to justify me in withholding the
certificate of extradition, but I am free to say all the,
circumstances point fatally to the prisoner as the
guilty man. So clear and distinct is the question
of probable cause that I cannot for one moment
have a doubt as to the proper course to be pursued?'
Language such as this is perhaps a little more em•
phatic and unqualified than we should expect from
a committing magistrate; at all events, it does not
betray any unworthy re!uotence to surrender an
English criminal under 'he Extradition Treaty. It
is right, however, that we should take notice of the
strange arguments employed by Muller's counsel—
first in support of the motion for a further adjourn-
ment, and afterwards in support of the motion for
the prisoner's discharge. It was urged that the
case of Muller stood on the same footing as that of
Anderson and the Confederate pirates, and that in-
asmuch as the claim for extradition was there dis-
allowed by the British Courts after solemn inquiry
and deliberation, time should at least be granted to
find a like flaw in Muller's favour. The answer was
obvious—viz., that the murder of which Anderson
was accused appeared on the face of it to be no mur-
der in the eye of the English law, and that the
piracy with which the Confederate seamen were
charged turned out, upon the preliminary investi•
gatioo, to be piracy of a kind for which they could
be tried in this country. No such objection relating
to the nature of Muller's crime had been established
or even put forward; the evidence went to prove a
murder in the plainest sense, or nothing at all, the
only possible doubt being as to Muller's com-
plicity. But, then, argued Mr. Shaffer,
the Extradition Treaty itself mast b 3 con-
sidered void as violating the American Consti-
tution, or if not void ab initio, it has been annulled
by the state of war now subsisting between Great
Britain and the United States—not,indeed, between
the two Governments, but between the peoples, so
long as Confederate cruisers issue from English
ports. We are not surprised that Mr. Marbury, who
conducted the prosecution for the British Consul,
wasted very little time on this marvellous paradox.
It is AO obvious that the Executive Government
alone can abrogate a treaty that we can hardly sup-
pose the exception to have been taken in earnest.
Remembering Mr. Edwin James's famous defence of
Bernard, we are not disposed to snake too mush of
national
prejudices, or to pre-
sume this kind was thrown
that
a atppeal
because s
fallacy
oat, in desperation, by an advocate, it had the least
chance of imposing on the court. We question,
however, whether an English barrister would have
had the assurance to address such a piece of reason.,
ing to an English judge, even if he were capable of
trying its effect on a jury. As it to deprive it of all
plausibility, it so happens that when the Extradi-
tion Treaty was made, the relations of the two coun-
tries were in quite as precarious a state as they
have been at any time during the last three years,
and serious difficulties had arisen, the recurrence
of which it was calculated, and probably designed,
to prevent. Disputes on the frontier, originating in
the Canadian rebellion, constantly threatened to em-
broil us, while the controversy about the right of
search was still outstanding, the Slaves States were
furious at the release of some negroes at Nassau,
and, besides the unfailing sympathy of an American
party with disaffection in Ireland, there were the
formidable questions of Texas, MeXico, and Oregon
to keep hostility alive. If, therefore, there was
ever a time when either party might be tempted to
repudiate a treaty expressly made terminable at the
will of either, it was when the ratifications of it
were first exchanged. Yet, so far from regarding
it as an additional element of discord, its framers
seemed to have intended it as a palliative, and it is
a little curious that it is more comprehensive than
the treaty made with the friendly Government of
France a few months afterwards. The latter, it is
true, includes the crime of fraudulent bankruptcy,
but it is silent as to piracy, arson, or robbery, the
very offences which are most akin to private warfare
on the border or the high seas. Since this treaty
was signed similar conventions have been made by
the United States with France and other Powers,
and a special machinery was provided by Congress
in 1848 for giving effect to their stipulations. It
is by virtue of the Act then passed that Muller is
now in custody of Inspector Tanner, and on his
way to England in the Anna. The American
Courts and Government having thus honourably
discharged themselves of their obligations, it
re-
mains for us to consider what is due to English jus-
tice. When we hear of vast crowds awaiting Mul-
ler's arrival at Queenstown, and lister to expres-
sions of relief at the murderer being captured, we
are compelled to remind our readers that the prie
soner has still to take his trial, and that it will be a
disgrace to us if it be not a fair one. It is too much
to expect that any one of the jurymen vi ill not have
) read accounts of the case and formed an impression
of his own, No one will envy these gentlemen the
effort of clearing their minds from all prejudice and
`weighing the evidence as if they heard it for the
first time, but it is an Effort that must be made.
Without entering upon details which are already
familiar to every one, it is manifest that almost
everything must turn upon Muller's ability to
explain two facts,—the discovery of a hat be-
lieved to be his in the railway carriage, and the
p9SSCSSiCU of Mr. Briggs's property. If he can do