The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-01


hight or title under ssd by virtue os their acts or
proceedings. mast 0rss show afrmstveiy that they
po~csrsd Jurisdiction or authority 20 act In the
matter The jurisdiction n never presumed. These
are principle. 10 familiar 70 require . reierrnce 70
authorities. II Wa proved IN this that the
person taking the dispositions IL ireland. and issu-
ing the warrant, seted A. . Justice 81 the peace,
and IL has BEEN contsnded that ~ 'rds evidence
not only IL his appointment q that Office. but also
of the competency 81 has jurisdiction. l cannot
assent a. this doctrine. I admit that evidence
Of person cising the duties 81 public officer
and even reputation Of the fact, may dispense with
tho proof II regular appointment and u there l. no
question 20 the extent Of hi power0r authority the
proof will be sufficient. Rut H. IN addition u the
appointment, II becomes necessary 20 give evidence
OF his jurisdiction, neither his acting In the Office or
reputation furnishes any evidence OF the fact Il
Phillips, Ev. Az, s33, &50; e. and N. Notes, ESQ;
2si; s; wend. 267.) ia contrary principle can be
found In The Law, u Il little remarkable that the
rule should ever hay. obtained that ia an action
founded upon the adjudication or decision Of q ma
gstrate. or any other officer OF special and limited
Jurisdiction. the party claiming right under il
must and prove jurisdiction in the particular
case, for the very adjudication. or decision,
would afford all the necessary evidence OF the
officer acting such within the principle con-
tended for. In other words, the judgment would
Afford evidence PER Of the jurisdiction, and
in all dispense with further proof and
thus every inferior magistrate would be placed
upon the footing OF courts OF general jurisdiction.
do NOT think II necessary TO pursue this branch Of
missioner acted ia the arrest and commitment OF the
prisoner without any competent evidence OF his guilt
OF the crime alleged against him. To permit the
copies evidence without proof OF the jurisdiction OF
the magistrate, would be against all principle, and
might yield 10 the most scandalous abuses In carry
ing into execution the stpulations OF the treaty This
species OF evidence Is very differently guarded in the
act six and seven Victoria. There copies of the de-
positions laid before the government, and upon
which the proper officer issued his warrant to the
magistrates, authorizing them to institute proceed
ings TO arrest and commit the fugitive, are those
only permitted to be given in evidence. In other
government acted in the matter are admis-
sble evidence OF the criminality. The orr
gina OF these are those upon which our gov.
eminent make the requiston and of course
the good faith of the nation is pledged that they
We're taken before competent officers, and that the
facts stated in them were true. But, in the be-
fore us, the copy was taken by police officer Of the
foreign country, and produced here before the com
missoners without the sanction Of either govern
ment, and without any competent evidence Of the
authority of the person before whom Il was taken.
There was no evidence Of the authority OF this
magistrate, of any authority under the treaty for
the arrest Of the accused, before the commissioners,
but what depended upon the oral testimony Of this
officer and the statement Of the consul Of what had
been represented to him on the matter. The consul
does not aver that any OF the facts stated by him. in
what he calls his requison upon the commissioner,
were within his own knowledge. Even the authority
attempted to be derived from the Under Secretary OF
State in Ireland, depends upon the oral statement Of
this police witness; and assert and do upon the
responsibility that know belongs TO my place and
the occasion, that there is not one word or scintla
of evidence in the record Of the commissioners
upon which the accused in this has been tried
and adudged guilty, but depends entirely and exclu
sively upon the oral examination of this foreign POI
lice officer: and who does not pretend that he had
any personal knowledge of the commission of the
crime. His knowledge only extends to the vertical
ton Of the copy of the deposition taken before q
person in Ireland, of whose authority to take it, we
know nothing. TO those familiar with the criminal
laws OF this country, need not say, that such evil
against our laws, would be inadmissibe and ut
terly worthless, which must govern this case, I'M
less in support of it, and especially under the
laws Of the State Of New York, regulated by act
of Congress: and in my judgment, equally so,
within sound and proper construction Of the act
providing for the admissibiity OF these copies
of dispositions taken before the foreign magis
trate have thus gone over the case much more at
large than should have deemed it necessary were
it not for the very great diversity of opinion in res
pect to it, among my brethren. ] have regarded it
as case of considerable importance, not only from
the delicacy OF the power in the treaty the proyi
sions of which we are called upon to interpret in
yolyed, but also from the principles laying at the
foundation, which concern the rights and liberty Of
every citizen of the United States. cannot but think
the denial Of the power to grant the writ of habels
corpus, in this case is calculated to shake the
thorty of long line of decisions in this Court from
Hamitons case, decided in 1885, down to the present
one That case, as understood and expounded in the
case of Bollman and Swartwout, in 1907, which re-
ceiyCd the most deliberate consideration of the
Court, and to which the doctrine in Hamitons case
was applied, held that this great writ was within
the cogniZance OF the Court under the l4th section
Of the Judiciary Act in all cases where the prisoner
was restrained Of his liberty, under or by color
OF the authority of the United States and no case
has held the contrary since that decision, with the
exception of that Of Metzger decided in lS47 which,
have already stated, stands alone, bat which dis
fiprtI v olp fha op1 fiatin NJ fla
Court in the case before w. This writ has always
been justly regarded as the stable buwark Of civil
liberty, and undoubtedly, in the hands Of firm and
independent Judiciary no person, be he citizen or
alien, be subjected to Illegal restraint, or be de-
prved Of his liberty, except according to the law Of
the land So essential to the security of the personal
rights the uninterrupted operation and effect of
this writ in full vgor, regarded by the founders OF
the republic, that Congress cannot suspend it
except when in Of rebellion or invasion, tue
public safety may require it. cannot, therefore,
consent to cripple or limit the authority confer
red upon this Court by the Constitution and laws
tion but, on the contrary prefer to follow the
free and enlarged Interpretation always given
when dealing with it by the Courts of England.
from which country it has been derived. They ex-
pound the exercise Of the power bengnly and literally
in favor of the deiverance OF the subject from all
lawful imprisonment; and when restrained Of his
liberty he may appeal to the highest common law
court in the kingdom to enquire into the cause OF it.
writ. and unrestricted in it, operation in favor Of
tic security Of the personal rights OF the subject that
the decision Of court or magistrate upon the re-
turn to it. refusing to discharge the prisoner, is no
bar to the issuing OF q second, third more, by
any other court or magistrate having jurisdiction of
the case and may remand or discharge according to
it, judgment upon the same matters GIL. NJ. Il
Weisby, $40; ]. East 3la IA ib, 679 II. Salk sos;
y.M., & Welsby). Upon the whole, am satisfied
that the prisoner is in confinement under the treaty
and act of Congress, without any lawful authority.
am of opinion, therefore, that the writ Of habeas cor
pus should issue in the case to bring up the prisoner
jurisdiction to entertain the proceedings under the
treaty for the apprehension and committal Of the
alleged fugitive, without previous requistion made
under the authority of Great Britain upon the Presi
dent Of the United States and his authority obtain
Cd for the purpose.
2. That the United States Commissioner in this
is not an officer within the treaty or act Of Con
press upon whom the power is conferred 10 hear