New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1852-08-06
THE EXTRACTION CASE.
Opinion OF Judge Nelson,

Opinion OF Judge Nelson,
! In TIE MATTER OF Thomas KANE, claimed Gss
tire from justice undr The Treasy 6etsceg the Uslsi
| States and Grsdt Britain Of the &t AHsast, ls42.
NELSON, J.-ThiS is an application on
the relation Of KANE icr writ OF habeds corpus phs
In jail under the custody Of the Marshal Tor he
Southern District Of New Yors, charging that he is de-
teued In prison by virtue OF an order made by the Cir
Court OF the United States OF said District, dated
July . 1882 of the April term of said Court purpon
ing To be made under the Treaty between the United
States and Great Britain Of the 9Ih August, 1872 and
which order rensnds the prisoner To the custody tho
said Marshal, to be detained under Commitment pre-
ylousy made by Commits Oner BRIGHAM under the pro-
visions Of the aforesaid Treaty and that since the grant
Ing OF the said order by the Circuit Court the Acting Sec
reary of State OF the United States has Issued
rant directing the Masba he prisoner 10 tho
Government OF Great Britain, 10 OF the pro-
visions of said Treaty The having been fully heard
Ina the origin al proceedings before the Commissioner
In accordance with the requirements Of the Treaty and
of Congress in pursuance thereof and the declson
of that officer committing the prisoner for the purpose
of surrender to the authorities OF Great Britain, ass
fugitive from Justice having been subsequently revised
and confirmed by the Circuit Court, have declined
graz ting the writ Of kd5eds corpus taking any step
In the matter of the application until the whole oil
| the previous proceedings in the case including
the evidence, points OF counsel before the Commis.
sioners and opinion of the Court were laid before
me, that might be apprised OF the ground OF the
commitment, and of the objections TO the same. Il
Is proper 10 say, aso, shat have entertained the
case and called for these proceedings. not with
view to original hearing of tho matter ON habeas
corpus for tue purpose OF passing upon the legality
Illegally of commitment 10y the Commissioner, with
a view to decision OF the order of commitment, by the
Circuit Court, and final disposition OF the same
Chambers but eOlely for the purpose OF ascertanns
whether the questions involved, any of them
we're Of character so difficult and doubtful and their
final determination was, Dy the highest authority, OF
sufficient public interest," TO require justify the sub.
mission Of them to the Supreme Court of the United
States By a series OF decisions Ia that Court, the
questions involved present appropriate subjects OF
examination in the exercise OF its appellate powers.
@ Cranch, AS 10, 70; WI, 80; Peters, 1873
I H., 500; How, leg, 1907 Looking at the
case in this aspect, and with this view | find the
trs, and leading allegation Is, to the legally Of the
commitment by the Commissioner, (and the a~funess
of the detention Of the prisoner depends this will
be heresterD namely, that be possessed juns
dcton the case and consequently that the warrant
of commitment void The Treaty provides, "that
the respective Judges ar other magistrates OF the two
Governments shall have power juTisdiction DO, TO
nue warrant, &c. The act of Congress, l2b August
S passed give effect the provisions OF this Treaty,
with others for extradOn provides that It shall and
may be awful for any OF the Justices OF the Supreme
Court Judges of the several District Courts Of the
United States and the Judges OF the several State lur
end Commissioners authorized so TO do by any of the
Courts Of the United States hereby severaly vested
with powers jurisdiction, &c AaOh-T section provides
"bst it shall be- lawful for the Courts Of the United
States any of them TO authorize any person persons
TO act Commissioner or Commissioners under the
visions of this act" The Commissioner before whom
the proceedings had has been appoated under
and in pursuance Of this Act of Congress- of the
officers to carry into execution the provisions of the
tr atty, butacted In pursuance of his powers derived from
appointment under previous acts of Congress for the
discharge Of other special and limited duties and were
II not for contrary opinion expressed by The learned
District Judge, sitting Ia the Circuit should haven
tertaned very decided opinion that he possessed no
power under the Actof ls4s the proceedings
10 question and that an appointment by the Coar, 10
pursuaLc OF the power conferred by that act was e.
teniisl, to give the Commissioner jurisdiction It's
said however, that admitting the Commissioner pos
sessed no ursdiction under and In pursuance OtheA
OF le4o still he was conpetento under and BY virtue
OF the power conferred by the Treaty, ndependeniyo
the Act OF Congress and that the Limitation OF autnon'
" by the act could control the provisions Of the
treaty, even II In conflict with them We have seeh
that according 10 the Treaty, the respective Judges
and other Magistrates OF the two Governments, are
empowered TO arrest and examine the fugitive and, the
argument IT, that the Commissioner Is a magistrate 81
the Government the United States within the mean
ing of the Treaty Besides taking BAIL and deposiens
Of witnesses In civil cases, these officers by the ae
of Congress OF 23d OF August lsi2 are authorized
to arrest offenders for any cri ne or ornse against me
United States and imprison or ball the same Inc
thirty third (33) section Of the Judiciary Act con.
ferred the same power upon justices OF tho Peace
OF any Of the States. The possession OF these pow
ers by the Commissioner whose proceedngs 40
Ia question constituted him. as alleged, mag'nlN1
within the Of the Treaty, and by virtue Of when
such magistrate be had right TO actin the premises
notwithstanding the OMISSION II not exclusion oil tnese
ofsers by the OF the act Of Congress- passed
carry into execution the provisions OF he iiosy
Whether or not this view will sustain the competency
ofthe Commissioner under the Treaty. tndepeno
emily Of any power conferred upon him BY the &C, On
le4s is question upon which do not propose, a. ns
time to express opinion IL 10 sufficient 10 ssy me
ltis one at least Involved In much difficulty and oouuf
and well deserves the consideration and Judgment
the Supreme Court II the view Is sound one u souo
seem TO follow that any Justice Of the Peace II "a
several States, possesses the like power 20 arfess
commit under the Treaty, by virtue OF iheir cnasso
as magistrates derived from the powers c9nlenv
under the thirty third (3{ section of the JUDICIARY ~.
Of 1853. We can hardly suppose this % nave 49,
the intention OF the trainers Of the Treaty. h uoN.
ground Of objection 10 the Jurisdiction Of the Comus
siOner h. that ID not shown before tois enco' r.
vsus 20 the institution Of the proceedings, or Pens
the same, thar the Govern ment Of Great Brian OF
officer authorize by the Government, had appnea ~
made demand for the arrest Of KANE under inc ily
and that application on behalf OF that 0oVeln. ..sr
was essential TO give jurisdiction TO act In the
The Treaty provia That the United states ana ne
Britannia Majesty shall upon mutual requ'Suon' ~
them or their Ministers, officers, or authorizes, s
spec,ively made, deliver up 10 justice all persons,
In this case the application for the arrest was 49,,
panied by q request from the Bidsh Consul, re'o1
IN the City Of New York which would seem 70 oS
the case within the words Of the Treaty. lnc S,ss
Congress is silent upon the subject. The Ian
Tresty IA very broad and If construed literally, wo
confer authority upon any officer OF ne bfiI,n lts,
mept however subsrdose and whether civil or niH 81
~ 20 make the Necessary requisiton upon thus on
the of the fugitive, and so Ia the case o. IA.
alton of this Government upon Great Britain. 10
ills can hardly be the true construction TO DC
The treaty There must be some Limitation 10 'o'f