The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-07-29

any justice Of the peace, other magstrste Of any
81 any 81 the United Saoee where he may ke found,
so, be arrested and imprisoned, SC Q6taas at
large 81 A commissioner in this mode, acquiring
in the arrest and commitment Of offend
ers against the United States, because by such
functions himself q magistrate. The sppeiiation u
one ofwidcst sgni6cancy, embracing every func-
tioDary from the chief Of the government 20 the
loves. subaltern concerned in carrying the laws
into execution (Websters Dictionary; Bias,
2i8 O. 1856 Z; Burns Justice Woes; Sims clse, su-
preme Court, Mass, April. 1861 The duties inl-
referred to, constitute them magistrates, within the
mamie st import Of the treaty. The act OF Congress
Of August IL, lS4s gives to United States and
Stateisdges and certain commissioners powers to ex-
the term magistrates; and accordingly, II this com,
missioner does not come within the character OF
these specified By the statute, he has no authority
in this case except that impaired by the treaty
tions-frst whether in bis character Of magistrate
he can take and employ any powers created by the
statutes for the purpose Of carrying the treaty into
eectl and second whether ne can proceed nnder the
treaty ITSELF and perform the duties therein epjoin
ed upon rim, independent Of the statutary prori-
sions Inverting the order ofthese inquiries, have
no difficulty in declaring that the treaty, without
any aid of Legislation by CONGRESS, Is law adj
all adequate authority for its own execution This
nroposiion Iregard as definitely settled by the ad
iuacatory Of the Supreme Court independent Of the
imperative language Of the constitution Craneh,
100. lIG; United States vs. schooner Peggy;
Peters, 3I4; Foster VS.. Neson) In this first case,
the court says, +" where treaty is the law Of the
land and as such effects the rights of parties iti-
eating in courts, that treaty as much binds these
rights, and is much to be regarded by the court,
as an act of Congress" In the other, the court
saws our constitution declares treaty 70 be the
law Of the land. Il Is consequently to be regarded
in courts Of Justice rs equivalent TO m act OF
Lot, vrha N writ
out the aid of any legislative provision %
Nep York Legal Observer, 81, and cases cited)
In m ore recent case, in which fugitive from JUS
tice was arrested in this country by warrant OF an
United States indigo under the French convention,
appeal was made to the Supreme Court for h0beds
CORPUS, to discharge the prisoner and the counsel
grounded himself in his argument on the position
that The courts of the United States and the judges
Of these courts exercise powers ofa judicial
character. and can possess no Jurisdiction except
that which IS conferred upon them under the au-
tbority 0e the constitution by act OF Congress-; and,
in pressing his argument, the counsel urged j. as
conclusive consideration that tne only ground upon
which the claim of jurisdiction was rested before
and By the district JUDGE, B that of the treaty spu-
la.ions with France, and the means by which he ac-
ournd Jurisdiction on application addressed 70 him
| by the DIPLOMATIC agent OF tho French government.
The Attorney General, IN his reply, discussed This
position; that the point was brought directly to
the notice of the COURT The court, IN delivering
their opinion in the case. commenced by reciting the
4
lection that the treaty, without the aid Of eglsa-
ton does not authorize arrest Of fugitive from
France, however clearly the crime may be proved
against him; that che treaty provides for snrren-
der by the executive only, and not through the in
strunentality of the judicial er,"-ansWer, that
''the mode adopted by the executive in the present
case, seems 10 be the proper one Under the proyl-
sons cs the constitution the treaty is the supreme
law of the land, and in regard to rights and respon.
siblties growing out OF it, IL may become subject
| of judicial eogni2ance The surrender of fugtives
from justice is matter Of conventional arrangement
between States as such obligation is imposed by
the law of nations Whether the crime charged i!
sufficiently proved, and within the treaty, arr
matters Tor judicial decision; and the executive
| when the late demand Of the surrender OF Netzgel
vas made, very properly, as we suppose Tsferred !
which followed, and the conmittal Of tie accused
suisse. "a tho order q the executive, seems 20 o.
effect 10 she treaty. Is Hon. r. l76 Mes7ger'
| case.) | ind no authority controvertng the rul
laid down by the Supreme Court in the above de
cisions, other than q decision by State Fngistrae
in The case Of Metzger, corpus, dischargn
him from the warrant issued by the President 10
his extrad.ion, and setting him at liberty, beeeus
the United States had no jurisdiction in the matter
under the treaty, without the aid Of an act o. Con
gress. This decision was placed upon the aushort
3: . iudgmen. rendered IN England by Court z
his opinion prS ct e aEan l Fsy
the Supreme Court, and with tba. case before hSr
q .lNe,c York Legal Cbserrr, 367, Mergers casa
Considering the pro:ee dings before the Commisiou
er az taken under the authority Of the treaty alone
happears 70 me the return shows enough 10 Civ
him jurisdiction Of the case. Complaint was ma D
1 to the Commissioner, under OATH tha. the rrsone
| lad committed an'assault, with intent TO ninrie
one James Bale, in Ireland. and had He'd from Jus
tlce there 10 the United States and staen with
this district AMI his arrest under the treaty
The Commissioner issued warrant under whic,
the prisoner arrested on that charge on the lts
ofJune last, and on the 18th Of tho same month b.
issued and delivered 70 the Marsha, warran: D
orderof he following tenor ~
IN me Mat.r of Thomas Kdine:-This cas-
having been heard before me- On requisiton through
anthony Barclay, Esquire, her Britannia Majesty
Consul Of the port Of New York, that the said Kains
be committed for the purpose Of being delivered a.
fugitive from justice, pursuant TO the provisions
| the treaty made between the United States and
Grea. Britain, August 8, 1872. find and adiudge
tnat the evidence produced against the said kaine
is sufficient in law to justify his commitment On tina
charge of assault with intent to commit murder la
the crime been committed within tho United Stats
wherefore, order that the said Thomas Kaine be
committed, pursuant 20 tho provisions of The said
treaty, to abide the order Of the President Of the
United States in the premises. Givenuader my hand
and seal, SC -
No evidence contradicting the avermenss in these
warrants is produced on the part Of the prisoner;
but the original evidence upon which the tomrri =
sioner aeteds BY consent Of both parties laid be-
fore the court and the fact that such requisition
and complaint On OATH and the further fact that
1917 oriucnco " Pose the commission OF the crime
IN Ireland by the prisoner, was produced on the
hearing, Is indisputably established. The treaty
does not, asis supposed by the counsel for the pr-
soner provide that rhe requsition for the arrest Of
fugitive, shall be made BY one government 10 the
other II will bear the Interpretation that the rst
application may be made by complaint on oath,
to- Judge or magistrate, without the intervention
q either nation. The act Of August IL, 1919.
more plainly signifies that Congress. SO under.
stood the obligations OF the treaty ON our part,
and means 10 shall bs executed in that sense
Nodoubt, the call on the government either pre.
cedes the application to magistrate to arrest and
detain the supposed fugitive, is concurrent with
IT,. Still! think the terms Of the treaty are salts.
ned II the competent ministers, officers, and artho.
rites OF Great Britain prefer their application under
the treaty, in the first instance TO Judge or rnaeis
trats; and that the judge magistrate may there
lore take action in the matter, without any com.
ing no other evidence to this particular other thar
the return AID thu reomi titan aad=a..sl -. -