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

that particnlar writ. a Crunch, %, ~ ana
that instruction has since been carried inso
tien BY that court, and the various
SWhsst- AZ Kearney'sesse; 3NcKeon, SO, A l2D
And afler it is awarded i carries WIN !. sn1 Pr.
perties OF the writ at common Iaw NVlanen; 20,
b. Peters, 20l In this view o. me sunloes, - -
nsne form of She court, or by its original auchcri
". inasmueh as it is process which may emanase
d;yectly from court, and is not simply tbs warrant
~ an Individual magistrate. The sOurt haylpSS
bower % grant the writ ard act upon .sresaf, The
Judge who amends it ac chambers may maze u re-
turnable in court, instead Of before hfsei person
ally, "a Black. CON- .II The Sfeuss Ccrs
tYict Judge this course was taken. to help 10 obvate
. supposed difficulty in removing. a proceeding from
before judge at chamhersto the supreme Court.
am not satisfied tina. in tho present instance there
have The proceedings conducted by tas Judge 40 one
of The u States court rooms, IN preferences TO the
other and indeed 10 all general incents, tho Judge
may be regarded in .he traasasspn 9. ssi sas,
G. R.) l can perceive no ground on which TO rest
an objection to the authority OF tho Judiciary to in
quire. through writ Of habeas coPs into theearse
Of commitment, in ease Of arrest Of iugluves from
Justice, an application made under the treaty be-
tween The United States and Great Britain. "A
stipulation in tho treaty prohibiting such jIrsats-
ton, equally with like enactmen. IN statute,
would be void, as in opposition to the constitution.
The treaty making power on Congress, is not COM
potent 10 suspend The writ Of Aateas corpus in time
Of peace. The provision in the treaty, so act 81
184s, respecting the functions Of ne exeeu.iye ID
or controlling power the Judiciary hu. If they
imply night in that deparanen: 70 withhold
| he delivery. OF fugitive, after !, shau
and &C. Of Congress, certified by magistrate that
the evidence Of criminaty IS sufficient 80 SUSTAIN
The charge agains. him, these provisions must be
understood as having relation TO political power
and mats 1iain ma u ~.
doubt newly discovered facts IA respec 70 the eri-
| minality oi the accused, may induce the rfesdent
| 20 refuse ne eN.raaition; but the POSSESSION o.
power TO do, in way impo!ss cha II yeyse and
rec,ify the proceedings before the magistrate in the
| character OF r tribunal Of appeal or srro-. The
power Of The courts and Judicial oicers Of she Unit
ed States 10 inquire into the canse ola commitment,
| pufpcrtng to be made under the trenty authority,
| is no way subordinate to- or dependent upon, the
executive department; and this objection to the
Jurisdiction OF the Circuit Court, or District Judge
smgly IN that capacity, mGst DC oVera.sa Ine
exceptions presented the part of the prisoner are
| 70 the ~ hority Of the Commissioner 70 arrest o.
commi. the yrisoner-to his Jurisdiction oyer the
subject matter, and to the legality and suteiency o.
! the proofs anon which he ordered the commitment.
These have been the main topics Of argument on
this protraetei hearing. IL was my duSy TO give
the arguments deliberate consideration; but II de-
ternining the case, do not dcere It necessary 20
examine, n. large, the propositions discussed ~
counsel, or spread out IN full detail the reasons
which govern my decision. In my Judgment, the
legitimate authority of tho Court is limited to two
| general cons derations.-first, tho competency OF
she committing magistrate 70 act at all; and, ss-
cond, his jurisdiction OYER the case made ny the
facts in proof for if he be . legally appointed ma
gistrate, and the matter Of accusation per.nine to
his jurisdiction, this Court, IN my opinion, has no
other supervisory authority by way fkd6eGs corpus
| than to ascertain whether the evidence Of thsse
Facts legally admissible, IS il cannot correct or
regsrd either error or irregularty o. the ocer "a
conducting the proceedings, or in his anal lce,mi-
nation. These positions viii be sufficiently deve-
loped, With reference to the PRINCIPLES and author.
| ties upon which they are based But as notice Will
be taken OF matters not strictly within these points,
it is proper TO advert to the manner II which the
is presented Both sides. On the part Of the
prisoner right is claimed TO file formal traverse 10
has been made sT the Ps eh n
American government for the surrender OF tho pri-
soner-that the Commissioner who directed his az
rest is not magistrate, within The meaning OF The
treaty, and was never duly appointed or. au-
thorized TO take cognizance CT tho proceedings
against the prisoner, under the statute-ttat no
legal evidence was adduoed to the Commits.
sioner to show that the prisoner could bs law
fully demanded OF surrendered under The treaty o,
the: he was guilty cf.any offence described in tbs
treaty There Is no statutary directions giving th.
courts or officers os the States in ths nfthos
3lst Charles I'd, may be referred to for q de-
ssrip.ion Of causes OF detention, against which re
liefis afforded by the writ, g Peters 2O2 Watkins
casey and if It might also supply fitting rule .,
practice there is no privilege given prisoner by /.
70 centroVer5 the return 10 hQ0eG5 corpus by rem
ding or otherwise. The Act Of 56, George 8. au.
| thorzes The officer or court to examine into the
cause Of commitment and .he trutr Of the iacts al,
legged on the return, but it is confnsdto cases other
than Of q criminal character The statute of this
State. and various ether States Of the Unien adort
similar regulations in criminal eases, q Kent, q
and note) but some Of those acts govern courts Of
the United States. The proceedings hero must as
suredy be in conformity with the rules of the COM
mon law, and they deny prisoner the rgh. 20 ira
verse the return to writ os habeas corStts or de-
mand On issue On the legality Of his comutmens.-
SBa Ab; hab. corp B. II. Ingsrsoll on hab. corp.
offered with that object cannot therefore be received
or acted on by the court az pleading in the case
Still the prisoner has substantially the same pro.ec-
ton ne could expect by way Of proceeding, because
the return itself or evidence allc,Eo, that the COM
uniting magistrate had no authority TO act in the
matter or thai there was no lega! evidence submit
ted to him. which tended to crmina.s the accused
| y Swartwout's case, Hon l76 Bletkgen's case
| The first objection to the competency Of the COM
missioner is, that he is not officer named and en-
powered BY the treaty, the act of Congress, 70
arrest fugitive from justice or order his commit
ment, or 4 he is comprehended with the denomina-
ton OF officers referred to by tho treaty, the treaty
Of Its provisions, and that the act Of Congress
affords no aid in that respect, not being adapted to
carrying them into effect ; and if the descriptions
IN the aet Of Congress may be understood az apply
| 20 ~ s'S SSAoSAehci, JSl lLS HcJ - Vel0,
because not in consonance with the treaty bu.
| on the contrary contemplates and provides for
subjects out Of the province Of the treaty compact
Although these objections were dwslt upon with
great fulness and earnestness on the argument do
not deem it necessary TO discuss them IN any sons-
derable detail. The treaty arrangements are
brought into the discussion IN many points Of view
that It will tend 20 give eea-nsss to the subject to
set forth the 10th Article, by which "It is
agreed that the United States and her Britannia
MAJESTY shall, upon mutual acquisitions by them or
their ministers, officers authorities, respectively
made, deliver up TO justice all persons who being
charged with the crime of murder, or essault ritE
intent toco,nmit murder, OF piracy, or arson, or
robbery, or forgery or the uterance &C forged pa-
per-. committed within the jurisdiction al ether,
SHAH seek an asylum snail be found, within the
territories of the other; provided that this shall
only be done upon such evidence Of crni nality az