New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-02-01


decided that there must be new hearing in
the extradtion case Of Thomas KANE, and
judge Nelson has ordered such re-hearing TO
take place on the first Monday Of April, in this
City.
THE KANE EXTRADITION CASE.
The L. s. Supreme Court has decided
as we always hoped it would and believed it
must-that persons claimed BY foreign Gov
ernments as fugitives from justice are not to
be hustled out Of the country on eI Partc
testimony and Commissioners certificate, as
was attempted in Kaine's case The act OF
Extraditicn is avery grave one, and requires
the very highest Judicial or Executive sane
lions. We omit Judge Nelson's reasoning and
array Of authorities, and give his statement
and decision Of the case-as fellows
IN SUPREME CouRT OF THE UNITED SrArEs.-EEPsrse
Thomas KANE claimed rs a. fugitive from justice. un
der the Treaty between the United States and Crest
BTitbin Of 9th August, lsi2.
Mr.. JUSTICE NELSON'S OPTION IN THIS CASE
WASHINGTON, Jan. 81, 1888
This important decision which settles principle In
isw in which every adopted citizen is deeply interested
will be read with much interest. the argument OF
counsel fully ead0rssd BY the opinion of the principal
Judges and vii have the eject 70 bring mp the Kane
case aguin ia proper and lsg0i shape before Judge Mel
son II IL presumed who doubtless viii yield % the sp
pcson OF Messrs Busted and Brady 20 grsntthe writ
Of Ao5eds corpus The Chief Justice, and Justices Mel
son and Daniels fully agree In this opinion 10 IL under
stood that Judge Cuts agreed with them substantially
ON the merit but differed the question OF jurisdlc
ton Of this Court The ether Judges differ quss
ton Of jurisdicton but think proceedings regular
Judge Nelson saidThe application for the arrest and
delivery Of Thomas Kane, originally made on the
regulation Of the British Consul resident a, the portof
Ecw-York, before Joseph BRIGHAM, Esq, United
States COMMISSIONER for the Southern District Of New
York warrant was issued aud the arrest msde, and
On the return before this officer examination took
place upon charge that the fugitive has committed an
ssssulf with intent murder upon one JsInes Bstc,
in ireland the 9Th April, 1851. The Commissioner,
upon hearing the allegation and proofs sdiudgcd the
prisoner guilty and ordered that he be committed In
pursuance Of the Treaty TO abide the order OF tbs fres
dent OF the United STATES petition then present
ed TO the Circuit Court for the Southern District of
kewlork, holden by the District Judge, for wrft OF
AaJeas copv, directed TO the Marshal 10 bring the
body o. The proncr and also osTtiorarf 10 the Com
missioner to bring up the proceedings thst had taken
place before himj and upon full review Of all these
proceedings. the 9th July 1852 adjudgcd that the
commitment ard detsuon were for sufficient cause asd
ordered that the writ Of habcss corpus be dismissed and
The prisoner be remsuded end continue in the custody
Of the Msr-hal under the said commitment.
On the l1t July copies Of these proceedings having
been forwarded 10 the Department Of state ri Wash
nslon the Acting Secretary issued his warrant 70 the
Marshal having the custody OF the prisoner directing
that he be surrendedcd 10 Mr. Barclay. the British Coa
sul 10 any other person or persons duly authorized
receive the fugitive and transport him to Great Bit
ain for trsl.
On the ed July petition was presented TO me at my
Chambers In CoOperstown on behalf Of the prisoner,
for writ Of habess corpus which declined allowing
until the whole Of tie proceedings that had already
taken placein the matter were laid before me. Copies
Of them subsequently furnished, and upon an ex-
animation Of them being satisfied that the Commission
orb aa ~ uriat on uVC
on the ID August re,pnable before me at my Chsm'
bers on the Nth Of the month and which return
was made accordingly.
ierent opinion from that Of the tribunals before whom
the proceedings had taken place, not only to the
Jurisdiction Of the Commissioner, but also in respect
TO their Interpretation OF the Treaty and OF Con
srsss passed 10 carry ii into effect and the ques
tons involved were OF considerable interest OF them
selves and concerned deeply the tgo nations who
parties in the Treaty, the return 10 the Wi, en-
tered order directing that the case be heard before
ell The judges 81 the commencement Of the next term
Of this Court
The case has now been heard In fun bench, and am
inclined 20 concur with my brethren that cannot
entertain jurisdiction of it. upon ray allowance of the
writ and adjournment Of the proceedings 10 be heard
in this Court
We detach the two following paragraphs
from their connection, referring to leading
points made in the decision of the case.
The ides Of requisiion Of foreign nation upon the
Judiciary Of another, much more upon the kEabt a4g
lrats Of another demanding ~ OF right the fulhment
ofuesiy obligations is certainly Hotsl and thai
would not willingly attribute % the disngui he'd men
who negotiated this enc nor to "A, GorerHEsa,s tst RAJ
,asd a. so extraordinary an Interpretation ought not 70
be given % the instrument unless upon ths panst and
mos, imperative terms IL does greet injustice to both
Raiions lie proceeaines consequent upon n couIpro
mis- the ehace and dc Hs'y fthe making the de-
msnd, and Is dsrespectfsl oi the ether and may DO
seEsocss % lks hbcry IF he eiii.ss.
q n - -. 4 49,.
doubted principle OF this Government that its judicial
tribunals possess no power 10 arrest and surrender 10
foreign country fgiriyes tom juStca, except su
ihoIizsd by treaty supusilons and acts oi Congress.
Posed in pursuance thereof Whether Ccngress could
confer The power independent OF Treaty, Il question
lot necessarily invoyed IN tAs case and need not be
eNsmined Ii il Ai present advised. free %
-sN tnsf have found no sach powers IN any arcle
clause 81 the Constitution, dcegs:ed 20 that body by the
people Of the States. bsssgs tss rres,s- masiHg
poKc sad 20 liar sls asi as exercise Is deyesassg zyoa
u, LSecHirt Hepcrt1eRl ga he o0Aeavrrso, Of ir0
a6Gs e S SsEat0rS and ssoA isk las 6csH IA prac
t,cGl e0asscf1eG lea 70 Le COAs. a0a sncs ilS oAa
2e'isR cf the GprersgsRk
Judge Nelson then concludes IS follows:
Upon TIE whole an ss'isaea thA; the prisoner "a in
eonfnms ni under the Treaty and Of Congress with
Ott sny lawful sathori;y.
am Of opinion, therefore that the WI, Of AsScs, cor
yls should issue IN the case 70 bring up the prisoner
!. On the ground thsf the JahcAry possesses no ia.
rdcton 10 entertain the proceedings anlert the Treaty
lN tne itfenensca ana ccrllntS Q. the alegel iQ-
tive without previous requ<i;ion made anler the sa
toriiy OF Great Britain upon the President Of the Uni
ted States, ard hs aatbory obAiael for the purpose
Iha the United States Coaass.onsr IN nis case is
act en- c1cer, within the Treaty CT act Of Congress
upon wnon the power Is conferred 10 hear and deter
nne the question Of cEhnin4ty upsn waieh heslrren
der Is 10 be made
IhAi there was no Competent evidence before the
Conmissscaer be possessed that power % issue the
warrant And
4 uPOn these grounds the Circuit Court ought to
have discharged the prisoner Instead Of REMINDING h
INTO custody, AID is decision in the case IL proper
subject OF review BY ths cour ~ virtue OF the wr OF
kstees eorP&s
MERCANTILE LissARY ASSOCIATION. As
the question Of Removal or No Removal of the
Mercantile Library is regarued as stiu OMEN.