Richmond daily times. [volume] (Richmond [Va.]) 1850-1853, 1853-02-04
THE KANE EXTRADITIoN CASE.

The Philadelphia North American publishes at
length the opinion of Judge Nelson, pronounced
In the Superior Court on Monday, of the Irish
man, kaine, claimed as fugitive from Justice,
under the treaty between the United States and
Great Britain, of the 9th August, Is42. Three
opinions were delivered. Justice Catron deli
vered the opening one, and held that the argu-
ments OF the counsel, Bustead and Brady, DENY
ing the right or power of Consul Barclay TO usurp
the functions ofthe accredited British Minister.
upon question of broad international law. was
not tenabte-but that the British Government
might delegate that power.
He delivered an elaborate opinion adverse to
the views of Justices fancy, Nelson and Daniel.
Justice Curtis followed, and differed with all his
associates upon minor points, but concurred with
the Chief Justice and Daniel upon the question
of non Jurisdiction in the case, under the existing
state of the acts of Congress.
Judge Nelson's opinion followed. 1t concludes
thus:
This writ has always been justly regarded as the sta.
bic buwark OF civil liberty; and undoubtedly, in the
hands OF firm and independent judiciary, person
be he citizen alien can be subjected illegal re.
stran be deprived of his liberty, except according
the law of the land SO essential to the security Of
the personal rights the uninterrupted operation and
effect OF this writ in full vieoi regarded by the founders
Of the Republic that Congress cannot suspend it.
except when, Sin of rebellion invasion the pub
lie safety, may require it,
Icannot therefore, cripple or limit the au-
thority conferred upon this Court by the and
laws, to issue it by technical and constructions
but, on the contrary, prefer to follow the free and en-
larged Interpretation always given to IT, when dealing
with by the of England from which country
has been derived.
They expoand the exercise OF the power bensniy and
literally in favor otc deiiverancr of the subject from
all unlawful imprisonment and when restrained his
liberty he may appeal TO the highest law Court
in the Kingdom 10 inquire Into the cause of it.
SO literally do the Courts o England deal with tl
"r, and unrestricted is its operation favor of the
eurlty OF the personal rights of the subject, that the
decision Of Court Magistrate upon the return To
it, refusing to discharge the prisoner, no bar to the
issuing of second, third more by any other Court
or Mag istrae having jurisdiction OF the case and may
the same matters. IN M. and Wesby, 679 | East,
314: IA H., 679; 2Salk, SOB; s M, and Welsby
Upon the WHOLE am satisfied that the prisoner is in
confinement the ire ty and ofCongress without
any lawful authority | am OF opinion therefore that
the writ ofhabeas corpns should in the case 10
bring up the prisoner
L. On the ground that the Judiciary possesses no iu
1isdcon to entertain the proceedings under the treaty.
for the apprehension and commta OF the alleged fuc
tive without previous reuusltion made under the a,,.
hcrty oGleat Britain upon the President of the United
States and his authority obtained for the purpose
2. That the United st Commis sioper in this ca
is not an officer within the treaty of Congress-
upon whom the power is conferred hear and deter
NINE the question OF crlmlnallty, upon which the
render ls 10 be made.
8 That there was competent evidence before The
Commissioner ifhe possessed the power to authorize
warrant the offence, &c.
4. Upon these grounds the Circuit Court ought to
have discharged the prisoner, instead of remaining
HIM into custody and It's decision in the prope
subject of by this Court by Virtue of the writ of
HdbedS Corpus.
The result. as we understand It, s that the prisoner
must remain in dess until action taken de novo upon
the merits, or until the writ be allowed upon future
motion OF the prisoner. that the case must again
come before the New York Court. An examination of
the case before the New ork Circuit Court las be- n
fixed for Aprll.-Enqat7er.