The daily union. [volume] (Washington [D.C.]) 1845-1857, 1853-10-12
Extradition.
ATTORNEY GENrRAL's OYYIcr.


August 81, 1853
SIR have considered the question presented by your
note OF yesterday.
Il appears that. application behalf Of the British
government duly made TO that OF the United States,
mandate issued the eth instant. in the name OF the
Presidents calling certain magistrates therein designa
ted, or any OF them, to William Calder. charged
with the crime OF forgery committed IN Great Britain to
be arrested fugitive from justice, and TO examine
the evidence OF his eminaly, and il The charge should
be sustained certify the 10 the President, the
end tina, sad Calder may such case, be surrendered
the proper authorities Of the British government.
This mandate, the rsue OF which is aueparture from
the recently preexlstIrg practice OF The government
seemed to be called Tor by the action OF The Supreme
Court OF the United States kaine's case In re Kane
xiv Howard 1903 j for although the necessity OF such
mandate is not the thing specifically passed upon by the
court In that case, yet the views expressed by OF
The members OF the 10 the OF pro.
ceeding in such and the analogy OF the practice
Great Britain ITSELF led to the conclusion the part OF
The President that in case OF claim for exTadon fall
ing within the scope OF any treaty proper
for this government, being requested by the foreign
government desiring exaditon Of alleged fugitive
from its justice. and reasonable in HE premises be-
ing shown, 10 move 10 action the proper judicial au-
thortes OF the country order 10 the and proper
examination OF The party charged with crime, and The
investigation thereof for the information OF the govern
meDt
So that, whereas heretofore the party desiring the ex-
tradition u an alleged fugitive from the justice OF for
eign government went, in The first instance to
OF the officers designated the act OF Congress of the
18th OF August ls4s entitled IAN act for The giving ei-
iect TO certain treaty spulaons between this and for
eign governments for the apprehension and delivery up
OF certain OFFENDERS, and sued out warrant OF arrest
and pursued The other acquisitions OF that act, now IN
son especially, in Kanes case the party may, if be
please, commence by applying to the President OF the
United States Tor mandate: which being granted, the
act OF Congress above cited then TAX The case, and
pursues to the conclusion corresponding The particu
lar facts, and to our treaty obligations towards The given
foreign government.
say here in repetition substantially OF The idea init
mated above, that the foreign government may. If il
please, apply to the President for mandate. The fed
eal government does not require this, but only stands
ready TO do il required by the foreign government
For, when carefully anaiyzed the decision IN 5aines
appears TO be this Thomas Kane, charged fugi-
tive from the Justice OF Great Britain within the treaty,
was arrested by one OF the commissioners New York
appointed by The Circuit Court OF the United States
take afhdavs and examinations. and committed TO abide
the order Of the President Thereupon writ Of habess
corpus in the matter issued by the Circuit Court of
the United States, and upon hearing before the district
pus ordered by Mr. Justice Nelson at Chambers and
hearing thereon reserved by him. to be had before the
Supreme Court of the United States in bank. On the
them Justices Cation MeLsan Wayne, and Ge de-
cared through MT Justice Cairon, that in their opinion
the proceedings before the commissioner correct
and the party had been rghfuy committed for exirad
ton, but that the SHpreme Court had no jurisdiction of
the habsas corpus; Mr. Justice Curtis for ether
assigned by him. came 10 the same conclusion as to The
precise question before the court and Mr. Justice Mel
son, and the Chief Justice and MIR. Justice Daniel Tor
whom be spoke, of opinion that the proceedings
before the commissioner incorrect, and that the
Supreme Court had jurisdiction of the writ of habeas
corpus TO revise the question OF The awiuness of Kanes
commitment.
Judic,on, the only thing decided by The court tina, dis
,r "a came up nrgutsdo as 10 the rghifulness of the
p', dings before the commissioner. Mr.. Justice Nell
with whom The Chief Justice and Mr. Justice
Daniel expressed the conviction that previous mandate
rom the President necessary, and that commits
ioner could lawfully act unless appointed specially ad
Lee. he nv lire CafrO
with whom were Justices Mclean, Wayne, and Gner
and Mr. Justice Curtis expressed no opinion upon these
points.
The only thing auhontatvely adiudged, therefore, by
five judges out OF eight that the Supreme Court had
not jurisdiction.
Now, the decision in Kaine's not de6nvey esah
lishing the necessity OF sach mandate, and that alleged
necessity being part oil the argument only, and that OF
a minority Of the court the minister OF the foreign gov
eminent has the faculty still 10 20 10 some lawful mags
ate ia the fret instance, and take his chance OF what
may be ultimately adudged TO be the law in the premises
But if the foreign government, desires be relieved OF
this hazard, the President, has the power, and in the
OF just comfy, and especially the discharge OF
his whole obligation TO the faithful observance OF
treaties, he WILL when occasion requires, proceed TO give
his mandate by which The foreign government will be
relieved OF the difficulty arising the opinion OF Mr.
Justice Nelson and others OF the judges OF the Supreme
Court OF the United States.
In the present case a warrant of arrest had been
issued by the Hon. John w Edmonds, OF the Supreme
Court OF The State OF New York. who eertihes 10 the
President under date oil the 23d instant that he had had
the party before him, and had heard the upon
dence and argument AID is of opinion that there s
evidence enough OF the crminaliiy Of the said Calder
according 10 The laws OF ,hs State OF New York. JUS
lily his apprehension and commital for trial for the
offence charged II the same had been committed in said
Stale.
Mr. Justice Edmonds reports the evidence in the case
and supports his conclusion in carefully drawn opn-
ion independently of which, the precise question before
him was one exclusively within his province judge
10 Determines and upon his report whether his opinion
oil the effect OF the evidence be erroneous not, il is
clear the President order the surrender of the said
Calder
But another question arises upon second report OF
Mr.. Justice Edmopds; foi appears that motion has
been submitted 10 the court 10 remand the party until
evidence be obtained from Gtea, Britain main.
tain the charge TO grant which application the court has
II anywhere, in the government OF the United States
upon which, the Minister oil the British government here
applies 10 the Secretary OF State requesting "hat d.
Tecions may be gwen tor the detention oil the prisoner
IN custody Tor the time required" for the procurement oil
further evidence - and the inquiry il oil the duty and
the power OF the President in Tins behalf.
His general duty IN this OF course that which
the tenth article OF the treaty with Great Britain i'm
poses namely, 10 "dever up 10 justice all persons who,
intent 10 commit murder, piracy, arson robbery
forging, or The uusrance OF forged paper committed
within the Jurisdiction OF Great Britain, shall seek an
asylum in the United States. (Treaty OF August 9th
1874, vii Stat at Large, 376)
But this by the OF the treaty. to be done upon
such evidence Of crimnaliy as, according the laws
OF the place where the alleged criminal shall be found,
would Justify bs apprehension and commitment for trial.
the offence had been there committed and the
Judge and other ssates thereto lawfully authorized
are TO the OF the party charged hear and
nrst1a as. ~-.J~ - - kn~x ~.