The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-08-06


1lth day Of August, instant Accompanying this writ
the Judge has sent lengthy opinion the case,
now stands wherein II he doubts the legal author
y Of the United States Commissioners in the prcmi
ses The effect Of this writ sill be to the whole
Of the proceedings before the Supreme Court of the Uni
ted States
The following is the
OPINION OF JUDGE NELSON.
In the matter Of Thomas Kane claimed ugiry from
justice. snder the me United States ana 1feH
Bri'dsr Of The VII .atsus. 1872 ,
NELSON This Is an application on the relation
OF kaine, for writ OF habeas corpus prisoner IN Jau
under custody of The rshal for the southern dis
rct of New Yk charging that he detained in prison
by virtue of order the Circuit Court of the
United States Of da "a July o 1852 Of the
April Term of raid court purpmtng to be made under
the between the Unit-o States and Great Britain
Of the 9th August and which order remands the
prisoner to toe custody 81 the said Marshal, to be
detained under commitment previously made by
Commissioner Brigham. under the provisions OF
the aforesaid treaty and that since the granting Of
The raid BY the ccm' Court The acting Secretary
Of State for he United states has issued warrant direct
ing Msrha 10 surrender the prisoner to the govern
mtnt OF Great Britain In o the provisions Of
aid traty The Gaze having been fully head in the
original proceeon e. tvor the Commissioner in
dance with the requirements Of the treaty. and act of
Congress pursuance Thereof the decision of that
officer committing the prisoner for the purpose of
render 10 the authorities OF treat Britain fugitive
from Justice having been rubeouen ly revised and con-
irmed by the Crcus court have declined granting the
wit Of hoteos taking any ttep in the matter
Of the application until III. whole of the Previous
counsel before the Commissioners and opinion OF the
court were laid before ne that might be fully apprsed
Of the grounds OF the commitment and of the objec
tioE to the anne Is pioper tosay also that have
entertained the aud cd for these proceedings not
with view TO origins, bearing OF he matter habeds
corpus for the OF passing upon The legality IL
legality Of commitment b. The Commissioner with
view to deci,ion Of the ord OF commitment by the
Circuit Court. and final deposition Of the ut
chambers: but solely for toe purpose OF ascertain
ing whether or not the questions involved. or
any OF them were Of character 80 difficult,
and doubtful and then final determination by
the highest authority Of sufficient public interest,
to require justify submission Of them the SUI
preme Court Of the United Sates BY series Of deci-
sons in that court The question involved present appro
pirate subjects examination 10 the of its ap-
p,iate powers g Cranch 4iS. Id 49, VIII, 3s; 5
Peters, 1913 ID SOS, dow. S9 1907 Looking at the
in this aspect and with this view, find the first
and leading allegation is to the Legality of the
commitment by the Commissioner (and the law
fuincss Of the detention Of the prisoner depends
On this, as will be seen hereatter.l namely
that he possessed jurisdcti N the case, and
consequently that he warrant Of commitment void
The treaty provides THAT the resp ctiv- judges and
other magistrates OF the two government shall have
power jurisdiction &c to issue warrant &c The
act Of Congress of 9Th August s4s passedto give effect
TO the provisions OF this cafy with ohers for extradi
ton provides That IT shall and may be lawful for any
Of the Justices OF the SUPP me Court Judges OF the
several District Courts of the United States and the
Judges of the several Stare courts and Commissioners
authorized so to do by any of the courts of the
United States hereby se,eraIy vested with powers
jurisdiction sc. Another section provides, That
it shan be lawful FIR the courts Of the United
States any tn. authorize any person or persons
to act commissioner COMM soners under the pro.
visions OF this act &cm The Commissioner before whom
the proceedings were had has been appointed der
and in pursuance of this act Of Congress- Of the
officers to into execution the provisions Of the
treaty bqt acted in pursuance Of His derived
from an appointment under previous acts Of Congress- for
the discharge of o. her special and limited duties end
were NOT for contrary opinion expressed by the learn
ed district Judge sitting In the Circuit should have
entertained very decided opinion that he possessed
power under the of 1913 to entertain the proceedings
in question and that appointment by the Court in
pursuance OF the power conferred by that act, was
essential 60 give the Commissioner jurisdiction 1t
possessed jurisdiction and in pursuance of the
act Of lS4S still he competent TO act under and by
virtue power conferred by the treaty independent
ly Of tho act of Congress and that the limitation Of
thory by the could not control the provisions of the
treaty even If in conflict with them We have that
according the treaty THE respective judges and other
magistrates Of the two governments empowered
arrest and examine the fugitive and the argument is
that the Commissioner magistrate of the govern
ment Of the United States hin the meaning of
the treaty Besides taking bail and dispositions of wit
in civil there ocer by the act of Congress
Of 2Sd August 1912 authorized arrest offenders
any crime or offence against the United states and i'm
prison bail the The thirty (33) section
the judiciary conferred the power upon justices
Of the OF the states The possession Of these
powers by the Commissioner whose proceedings in
question constituted him alleged magistrate within
the terms OF the treaty and by virtue Of which such
magistrate, he had right TO act in the premises not
withstanding the omission If not exclusion of these Off
GERS by the terms Of the act Of Congress passed
to carry into execution the provisions of the treaty
Whether not this view will sustain the competency
the Commissioner TO under the treaty Independently
Of any power conferred upon him by the Of Si2 is
aque.tion upon which do not propose this time
express opinion 1t is sufficient say that ii is
at least Involved in much difficulty and doubt and we'll
deserves the consideration and judgment of the Supreme
Court IL the view a sound one would seem 10 fol-
low that any justice OF the peace in the several
States possesses the like powers to arrest and
NIT under the treaty by virtue Of their characters
az magistrates derived from the conferred
under the thirty third (3S) section Of the Judiciary
act of l7sq We can hsrdy suppose this TO have
teen the intention If The Trainers Of the treaty.
Another ground Of objection to the Jurisdiction of the
Commissioner IL that it was not shown before this
officer previous to the institution of the proceedings
peDone the same that the 20 rnment Of Great Britain
officers authorzed by the had applied
or maze demand for the of Kaine under the
treaty; and that application on behalf Of that go
vernment essential 70 give jurisdiction TO &C. In the
matter Thu treaty PROVIDES; That the United States
and her Britannia Majesty shall. upon mutual rcQus
tons by tneu Their ministers officers authorities
respectively made o,iiyer to justice all PERSONS &c
In this the application accomp ined
by request from the B tsh Consul resident 10 the city
Of New York which would s-em to bring the within
the words u the treaty The Of Congress is silent
the subject The isuguage Of The treaty very broad
ana construed lii,iay. would confer authority upon
any officer the B h sov.rnn. mt however subordi-
nate and whether civil military the
sary rquon upon this for the of the fugi-
tive, and 20 in The Of requs,on of this
ment upon Great Britain But this hardly
lie the true construction TO be gwen 10 the treaty
There must be ZONE Limitation in respect to
the officers OF the respective governments autho-
rized 20 make the requisi,ion There may be
difficulty in settling tkis Limitation in the
absence OF any regulation by of Congress Perhaps
the true construction may that the requ.ition shall
be made by the through the al organs hy
which the one bv'd- cotum unicaton With the ofher
by minister officer specially authorized by such
government TO make the IL would scarcely s.em
1T 1t respected either government that tbs power to
claim pros. cuor. arrest and commtta Of the sup
posed fugitive boud be lodged in The Of every and
any Officer Of he who mig chose the
ter The act Of Congress that in every case Of
complaint. and Of bearing upon the return Of the
raDt o. arrcst copies OF the Propositions upon which
original warrant IN any such foreign country may have
been granted certified the hand Of the person
b~uiDg such sarrsnt and ateted upon the oath
Of the psIty producing them 10 be true copies OF the
original DISPOSITIONS may be received in evidence Of the
Grimm atty Of the person so apprehrnd-d This pro-
vision mskes copies Of he d~po ons before foreign
msgistrsie. vino may have Issued tnere AZ aust
the offender. tif by said masi-rate aud proved
TO be true copies Of the origin, competent evidence
before the magistrate here acting under the tretty
The act Of Congress doubtless contempste that tina
copy Of depoeiiioDs shall be certified oy magistrate in
the foseicn country Of competent jurisdiction to issue