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

the Commissioner is such an officer empowered by
the statute to take cognizance Of the matter mas
much as the understanding Of the soeond section
seems to be imperfect, that the mode OF proof
authorized thereby, is limited TO the particular
offences named by The statute. "In every case OF I
complaint Aforesaid, terms Of reference con-
Meeting the subject matter of the two sections and
should be understood in the absence Of al otter ev-
dencs Of the intention Of Congress- as the
statutory proof to proceeding under the statutes;
The title to the aot denotes broader purpose, and
that the statute was not enacted with view TO COM
municate Jurisdiction to the various judges and
commissioners therein referred to, but to aid and
amp,iAy the powers derived by them from the
treaty. It is "An act for giving effect TO certain
treaty stipulati0ns between this and foreign 60
vernments for the apprehension and delivering up
Of certain Ofenders"s This language plainly sig-
mites that the legislature intended 70 supply an
auxiliary 70 the treaty spulations, and there being
nothing the enactment Of the second section
sarily combining its operation to proceeding before
the officers named in the first, it would DO giving no
more than reasonable effect to consider the meth
cd Of proof thereby authorized whether applicable
TO complaint made directly under the treaty The
terms of the section are--"That in every case OF
comp amt rs aforesaid, and Of q hearing upon the
return Of the warrant Of arrest copies Of the depo
sion upon which original warrant in any suchfor-
egn country may have been granted, certified under
the hand Of the person persons issuing such war
rant, and atested upon the oath OF the party pro-
positions may be received in evidence Of the criminal
ity Of the person 50 apprehended Inc autnenti-
eating evidence in this was prld acie sufhcent
to justify the Commissioner receiving the complaint
and deposition, and that with the corroborative
evidence produced was pertinent to prove the crime
haIged, and that it was committed by the prisoner,
and this court has no capacity in law to decide tnat
the magistrate determined these points enormously
In my opinion, accordingly the habeas corpus mast
be dismissed, even if the commissioner had no ju-
risdiction in the matter, other than what ne
derived from the treaty, because nothing was done
I before him in any way conflicting with the direc-
tions of the statute and because the provisions OF
| the second section of the act, apply as well to
magistrate acting under treaty, rs 70 the oicers
| distinguished by the statute, and give to the
copy Of the original deposition tho same ef-
| feet as the original would have had in law
| il made in this country. Bnt, in my opinion. the
Commissioner comes under the description OF ofhScrs
named in the act, and all the proceedings before
him we're fairly within its province. Before stating
the for this conclusion, j, Is proper to advert
to IN objection raised on the part OF the prisoner,
ha. Congress- In the enactment of the statute, has
gone OUT Of and beyond, the stipulations of the
treaty and the treaty being the supreme law OF the
land. the statute becomes thus migratory and vold'
am not able TO discover such discordance between
the two laws as that one must necessarily dspsace
/ the other on the contrary, think they substan-
| tally coincide in those particulars upon when
both operate, and that the differences between the
/ two are no more than that the Legislature has
extended its ennetments beyond the provisions OF
the treaty. The inquiry, consequently, is not which
authority must PREVAIL If both cannot pc executed,
| but whether Congress is debarred by the existence
regulations upon the topics embraced within the
1 treaty compact. The Legislature, it is to be
observed is wholly domestic and mira territorial
i and does not assume to interdct or diminish the
engagements u the treaty 1t would seem that this
Mt of the action of Congress would, OF tse
supply an answer to the objection IL is incontest
bly, within the competency, and az the discre.ion
of Congress to provide by law for the extradition
Of criminals escaping from foreign countries TO this,
without re gard 10 any reciprocal obligation the
par. Of tbs home country Of the fugtives towards u.s.
This is entirely, matter OF domestic policy. Inc
provision may be merely to expel them from our
territories TO reconvey them to the country from
which they fed, rs may be most consonans with our
security or interests; and no one can question the
right Of the government to enforce such law WITHIN
our own dominiops Had this statute directed the
delivery up on requisiton, or the expulsion without
demand, Of British subjects, guilty OF other crimes
CON mittsd abroad, than those enumerated in the
treaty no well gr ounded objertion, in my Judgment
| could be taken to the validity OF such o law
II Whether, then, the act Of August IL, lSiS, be re
earded as msrsly auxary 70 the treaty, or q sub
stantive law, taking effect independently ofany treaty
compac.. the, raRtgr confederation can only he o.
moment in case the commissioner who acted in this
matter is rot an officer named in the law, for if the
description in the statute embraces this officer,
then all foundation for the objection ia removal
and he is clothed with all the powers conferred by
the sct. The enactment is, 1t shall and may be
awin Tor any OF the justices Of the Supreme Court,
or judges OF the several District Courts of the
United States, and the judges OF the several State
Courts, and the commissioners authorized 80 to do
by any Of the courts Of the United States are hero
by severally vested with power, jurisdiction and
authority upon complaint made on OATH SC. and
the 9th section provides, :" That it shall be lawful
for the courts Of the United States or any Of them
authorize any person persons to act az commits
Soner OF commissioner under the provisions Of this
act; ana the doiDgs Of such person or persons 50
authorized, in pursuance Of any Of the provisions
aforesaid, shall be COED and available to all ntents
i and purposes whatever" The enactments taken
together empower commissioners already in office
IN nYan.s 20 he ,rk ~, kla-.-
OF the acts Of the United States a. also such COM
missioner Or commissioners as may be specially de-
aIgnated and appointed by such courts to that par
.leuiar service The difference between the act aud
treaty IN tins particular, consists in substituting
Tor magistrates" named in the latter commission
ers referred in the formers and accordingly instead
al magistrates Of the general and States govern
nents being employed BY the Legislature 10 per-
form the service, tho authority is limited 10 iudpes
as portion Of that generic class and commissien-
d the United States courts, in their capacity Of
MAGISTRATES solely would be excluded from jurisdio-
t?n under the act, They would be authorized %
take cognizance Of the subject, by some court of
the. United States, (seo. ID or specifically an
pointed to that duty, (sec. o. to constitute them
Of the Circuit Court for this district adopted in
| October term, 1850, and entered upon the minutes
Of the court Jan. 81 1851, ful6ls either or both re-
quirements Of the law. That rule designntes and
commissioner in this case was one) commissioners
to execute all the powers and to perform all
the duties authorized and empowered by any
act OF Congress having relation TO such COM
nissioners, or their duties or powers. The
sane rule in substance had been in force with
in this district since 1885, and the commissioners
by virtue 9fsuch appointment had performed the /
duties Of judges and magistrates in criminal mat
ters Subsequent to the act Of August %. 1872 and
notoronsy superseded, in .ha, respect the employ
msnt Of State Judges and magistrates; and exeep.
also relieved the United States Judges Of that duty
in this district. IL is believed such was the case
pretty universally throughout tho United States; 4
and that persons accused o. crimes against the
United States were arrested, examined, committed,
81 bsed by this class Of ocers and no other stand
ing Commissioners are known to the practice Of tho
United States Courts, authorized by its laws
to be appointed by the courts. In 1912, Congress |
had conferred criminal jurisdiction on these officers