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

l
| that country, who may choose 10 prosecute the
alleged fugitive in making the req,isition, and is
entitled 10 the obedience Of the judicial tribunals
for that purpose, and il sufficient evidence Is pro-
| dpced before them, TO arrest and commit, that
| Surrender may be made; and that in this respect
such officer is put on the footing OF any of the prose-
cutting officers OF this government who authoriz
cd to institute criminal proceedings for violation OF
it, laws that the country is open to him through
out the limits Ct the Union and the judicial tribunals
hound TO obedience on his reqisiton, and proofs to
make the arrest and commitment. This Is the argu-
ment. Now. upon recurring to the terms OF the
treaty 1t will be seen, think, that no such stpula
lions were entered into intended to be entered in
to ny either government, or any authority conferred
TO Justify such proceeding. The two nations agree
That upon mutual requisition by them or their Off
GERS or authorities respectively made'-that is on
requi-tion made by the one government, or by its
ministers, or officers properly authorized, upon the
other-the government whom the demand isthus
made shall deliver up to justice all persons charged
With the crimes, Us provided in the treaty, who shall
have sought asylum wthnher territories. In other
words, On demand made by the authority of
I Great Britain upon this government il shall de-
liver up the fugitive; and 20, in respect to demand
by the authority Of this government upon her. This
l. the exact stipulation entered into, when plainly in
tsrIreted. II is a compact between the two nations
inr,spect toa matter Of national c0ncernthe punish
ment Of criminal offenders against their laws--and
where the guilty party could be tried and punished
only within the jurisdiction whose laws have been
violated. The duty obligation entered into is the
duty obligation of the respective nations and each
u bound 10 see that II is fulfilled and each is
sonsblc 10 the other IN case of violation. When the
osus fudots occurs, the requisiton or demand must
he made by the one nation upon the other. And upon
ctr system Of government, demand upon the nation
must be made upon the President, who has charge OF
all Us foreign relations, and with whom only foreign
governments are authorized or permitted to hold
any communication Ut national concern. He alone
j. authorized 10y the constitution to negotiate with
foreign governments. and enter into treaty obga-
TOPS binding upon the nation and, in respect to
al,nuetons arising out Of these obligations, reiat
I'M D. foreign relations, in which other govern
mefts are interested, application must be made to
hli3 requisition or demand, therefore, upon this
goYnment, must, under any treaty stipulation,
he made upon the Executive, and cannot be made
through any Other department, or IN any other way.
Judge Marshall, in his celebrated argument in the
case 81 jonathan Robbins, who was demanded by
Great Britain under The treaty Of 1896, aud from
which this part OF the treaty Of ls42 taken al
mist rertoiis, speaking Of the requIsition in that
case, observes,
THAT the ca'e was n Is nature national demand,
made upon the nation The parties were the two nations
They cannot into court TO tigate their claims
court decide them. OF consequence, the demand
1. Dol 60. for Judicial cognisance.'
Vie further observes that
The President 4 the sole organ 81 the ton in it,
eserusi relations and IL sce representative with foreign
nations OF consequence, The demand OF foreign nation
cat euy be- made ON him"
Apaiu he says;--
-oregn intercourse of the nation with the negotiations
ri an treaties With the power OF dcms ndng reciprocal
the article which accountable
nation or The viola ion OF its engagements with foreign
n@iians and Tor tie consequence resulting from such
Violation eems the proper department TO be entrusted
viih he execution u national contract Ike that under
c.ratien
The idea a a requisi,ion u foreign nation upon
the Judiciary 81 another much more upon the humble
magistrate - another, demanding as Of right the
iulment "a treaty obligations, Il certainly novel
and one that would not wilinrly attribute to the
distnA ushej men who negotiated this one, nor to
the governments that ratified Il. So extraordinary
faef tgt ILL.,
s,rment, unless upon the plainest and most inn
peratHe terms. N does great injustice 10 both
nations. The proceedings consequent upon IL CON-
prout the character and dignity Of the one making
the demand, and dsrcspectful 10 the other, and
may be dangerous to the liberty Of the citizen.
The record before shows that a requisiton
with due soiemrity made upon the Commissioner
IN this case by her Britannia Majesiy's government,
through her consul, and seems 10 Imply that the
magistrate u n act under the power and authority
81 that government, rather than In obedience U the
laws 81 hi own: and that refusal 10 act would be
y contempt 81 that authority. and Of the casas fade
ris oi a treaty obligation. II any further authority
was wanting Tor the Interpretation OF the treaty for
which ain contendng. might refer 10 that given
BY the authorities OF Great Britain in providing by
act Of Parliament for carrying il Into execution on
Der part. ny the ith and ,th Victoria chapter 20,
II i 'pacted--
That IN rquiitiou hall al an time be made ~
The authority II The Quilted states in parsrauce Of and
according the sid treaty for The delivery Of any per
son charged with he crime Of murdr, Ac., II shall be
lawful Tor 81 hsr Nsjesys principal Secretaries OF
state or IN Ireland for the Chief Secretary oi the Lori
Lieutenant Of ,and and IN any 81 her W. siys colonies
OF po- icn abroad Tor the officer anir-iss"s tic 20
'snmsp' % sny saoh eooty o. ross.ss.ooi Y warrant
has been mad. and require az justices 81 the peace
and naFiatnies and ohssrs o. Justice within the several
jurisdictions "a govern themselves accordingly &c and
tI.srr- IL shs be- Nful for justice OF the leace,
&C to eaaras VI. cab any person person tcuca
Ing the charge. &c.
Now, il viii be seen thst, sccording 10 the in,eIrre
iation given 10 the treaty by Great Britain, the
QUESTION for the delivery Of the fugitive must he
made by ia. President upon that government and
IT, warrant obtained, before any magistrate within
her dominion l. authorized 10 act ia the matter The
act a Parliament deal With the treaty regulating
a matter of national concern and IN respect 10 which
both nations must act in carrying into execution IL
stipuaton.: and il j. only after both have acted and
an authority obtained for the surrender, that the
power OF the judiciary can W called into requsiton.
] an satisfied this i a sound Interpretation OF it
provisions. and j. one, while il secures the pnnsb-
Inent OF the GRINDER guards the citizens aud sub
jscts OF The respective countries against any sbu~e
IT the power. While H. exercise IL thus kept
under the supervision and control OF the two so-
yerlnunte there can bs no danger Ol ia being per
,ated TO the purposes OF private malice and re.
yence, which might justly be appTohended u iei
10 the unrsflsined discretion Of the subordinate
nicers q either The construction against which am
cCntcndng would refer the execution of the treaty. ~
the subcrdina, and inferior agent. 81 both govern
m.nts, far a. the surrender OF the iuDyt on cur
art j, concerned for, as J understand that con-
-tructon, any subordinate Officers " Great Britain
may make the reluisition directly upon tue magis-
;raic for the apprehension and ccmmittal and upon
upon -uch commitment being communicated 20 the
government the Secretary &c state Issues hi warrant
that IN, prisoner h. delivered 10 the British authori
tes. And, "a am advised, that department. Decided
il lie cas-. bcfse that the government woidd not
20 behind Tia. decision Of the CORNERSTONE sdiadg.
ing the prisoner guilty. Thus. the whole of toe
proceeding In the exercise o tii high aud delicate
power, Il n acquisition q the President IN tbe
rt place j. dispensed with. would pass out u
the hands end beyond the control ~ the govern
n.nt. Thi- seems 10 be- the result of the American
interpretation II tho treaty sought ~ h. established.
II ha- been 9rgued that, in Mezgers caSe, IN which
dsmrnd wa made ~ the French government, under
the treaty al November = LAS, ~. executive d.
cin,d H. act Until AN application had BEEN made -
the judiciary. aNu that th- c0n-iruciica wa Stue-
toned by The CoUr, IN that The treaty Ia
pres terms. require, The acquisitions 10 te made