The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-27

character Of .s e,i..ai eeaas 4 asst ,assaa ss.A
degree and mode Of pansAeut annsxsd - the ssacs.
enle htened nation with srininal code aueloatsd
tresty with barbsIous one whore code bloody sad
cruel And even among enlightened nations the stipu-
sFecSsd crss against psrsoss and property q afro
cious character The esty between this country and
Great Britain in l7e4 confined 70 the crimes Of muir
der and forgery the preent Of 1912 l.
hensve though st restricted Is also the treaty With
France Of lsls Mr. Jefferson, Q1ssl in letter il reply
minister observed That the evil Of protecting male
factors of every dye sensby felt here as other
Of most nations to deliver fusives from them would be
to become their accomplices." Another objection 70
entering into these treaties Is the dmeasy 10 gaasng
der of political offenders under the form OF some OF the
crimes enunt rated in the treaty In most instances,
of political offences the acts detached from the
political character of the Transaction would bring the
case within Of the offences enumerated and unless
the government poa whom the demand is made takes
the responsibility of distinguishing between the two
the treaty obligation would require the surrender
which must be decided by the POLITICAL not the judicial,
powers Of the government. 1t is general principle
respects political questions conserving foreign govern
mens, that the Judiciary follows the determination of
the political which has charge Of its foreign rc
tions and is, therefore presumed TO best understand
what is fit and proper for the interest and honor
of the country. They questions una. for
the arbitrament of the Judiciary especially SO
for the subordinate magistrates of the country.
These questions, growing Of political offences great
~ embarrass governments in canvassing the policy and
expediency of entering into treaties of extradtion and
when they arise calculated to endanger their
tho rty and force the apprehension Of the people
of ths COUNT at the time that the offence of Jonathan
Robbins. who delivered up under the treaty with
Great Britain Of 1874, was political offence which pre-
vented renewal of the stpuatiops from that time down
was An erican citizen. and had been impressed
board British vessel and that the crime committed
in recuing himself from the bands If his oppre
Had the apprehe nson been we. founded the iueose pub
lie indgna ion that followed credable to the nation
There considerations thus briefly stated Cor have not
the time enlarge upon them show that treaties Of
extadaton involve in the execution Of them, great
toEal questions which in the frat instance, should be
referred to the political power of the nation and,
under system of government, belong to the
tive the head Of the naon to decide The instances Of
political Offences in which demands may be made by o1e
alton upon another for surrender Of the offender
by means imaginary of practical applica
ton The history of the times Informs that at this
day, more than one government on the continent OF
Europe is aeitaed with apprehension and alarm this
subject, and from which even the government of Eng
land net to have been entirely Free And in
own country how many political Offenders, who have
songht um here from the disastrous struggles for
liberty in the other hemisphere nisht Be pol9ted T.
site under the treaty ia question: These some
of the considerations that strongly urge the intspets
ton of the treaty before for which have heretofore
commended and the result Of which has been already
stated and is the given to it by Great Britain ia
providing for its execution her part The demand by
this government for the surrender of the fugitive must
be first made directly upon that government, and its
sent and authority obtained before the judiciary be
called into requistcn. In judgment 1t is sound
construction of the terms and language of that instru
ment and carries ont the intention and policy of the
high contracting parties The Immediately before us
be of comparative unimportance the fugitive
demanded obscure and humble individual, and may
even be the proper subject for surrender, under the
treaty But we cannot forget that the principles aud
rule Of construction to be applied to him will be equally
political offender and all others falling within its pro-
visions We not therefore, at liberty t. distinguish it.
whatever be the supposed merit Of the appca ton
We think. therefore, the requison should have been
made in the first instance upon the Executive and his
authority obtained in order to warrant the interpretation
OF The judiciary; and further that the Commissioner
before whom the application was made possessed no
jurisdiction of the case not being officer within the
treaty act Congress passed pursuance thereof
found Incompetent and hence did not warrant
the finding Of the magistrate. The proof in all cases
under treaty OF extradon should be- not only cOmpe
tent but full and satisfactory that the offence had been
committed By the fugitive in the foreign jurisdiction
Of the magistrate OF the offence with which he u charged
Il sitting the final trial and hearing of the case
proof The result is ths the prisoner is entitled to be
discharged from imprisonment under the warrant order
Of the Commissioner and consequently from arrest or
Secretary Of State in pursuance thereof But, the
discharge is in consequence of ie9aty in the proceed
Of entertain Of
hear any further evidence beha Of the application
which the representative Of the British may
fit to present.
NJ. Jordan asked the Court to retain the prisoner in
custody unit the claimant had time TO produce such evil
depce required by the decision.
The Judge-wen, it will depend upon how much time
Mr. Jordan said 1t should be done forthwith.
Tie Enthusiastically, you are entitled to that; let it
be till to morrow morning at 10 O'Clock The case has
been much pIofracted and not disposed to de
lay it any longer than Justice reqniees.
Mr. Jordan-It will be impossible for to be ready
to morrow. viii your honor give until the
beginning of next week.
The Judge said If the counsel would give assurance
that he will be able to produce evidence in to
that laid down in the decision he would grant the app
cation.
Mr. Jordan would promise produce evidence prove
that the prisoner has been guilty of the crime with which
he is charged but the proof of the application to the Ex
ecutive he could d. not Of course promise
the prisoner must be discharged.
Mr. Jordan thought it proper that this matter should
all parties and that the Bctsh government should
that the highest tribunal Of this country had reviewed
The Judge-As you state that you do not expect to
furnish evidence the principles laid down in the deci
sop have other duty TO perform but to discharge
the prisoner.
BIZ Jordan could say that they would have proof
of application to the Executive.
Mr. Busted said he just informed by the Marshal
thai he had receved warrant for the arrest of Kane
signed by Mr.. Commissioner Morton, and charging Kane
with the offence rom which he has been discharg
ed by this Court Whether the Marshal intended in the
face OF The decision Just to execute the war
rant e @ nrepagea to snD1 to s
for writ Of babes corpus to take him out of the hands
Of the Marshal Mr. Busted then, at the request Of the
Judge read the warrant which da ted April IS 1851
Dir jordan hoped if there ha5eas corpus issued
in the case it would be issued by the Circuit Court and
tufnable 20 that court and Of there would be
habea corpus granted until after the hearing before the
Commissioner
The Judge Qookis at the warran t) sad-That warrant
il issued in the face OF this decson and of course
shsN direct that the conclusion have to is
forced
Mr. Brady said that The counsel for Kaine had de-
sired that there should be any decision in the bat In
accordance with law and the well settled rule of treaties
and he desired present the whole before his Honor
This warrant Is Issued by certain parties who would be
held responsible for il; and be asked his Honor to
pend the order for the prisoners dscha in order that
they might bring the before the Court in the
ing on petition.
Mr. Jordan acted in this in a protest. capa
city and without any private feeling BE thought it
which ought to be reviewed by the highest
court ef the United states. There is difference of
of opinion the question amongst the judi
cisry to the mode in which this treaty
should be carried He therefore asked his honor it
would not be proper that direction should be given
10 1t in that it might be revie we'd before the Supreme
Court If the prisoner discharged in the present
be nothing to prevent his being arrested sim and
brought before officer who has Jurisdiction The form