New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-04-27


ol-2 Ssk. Il. 6o3; Ad. * ELL 1911 In one Of the
cases referred to- the prisoner had obtained this writ from
two OF the highest Common Law Courts OF England, and
also from the Chief Justice of the Kings Bench At Cham
bers succession and their judgment upon the cause Of
his Imprisonment; and the learned Judge in delivering his
opinion IN the last application abiding 10 the decision ON
s6e former ws refusing TO discharge, observed: THAT
This was objection TO the hearing on that occ,sion a.
the subject in confinement had right 20 call upon every
Court Magistrate in the kingdom having iurisdc Of
the matter to inquire into the Of his being restrained
The decision, therefore, Of the Circuit Court upon nre
vious writ of habeas corpus obtained behalf OF the 5r
oner, refusing to discharge him. VIII not relieve me from
inqurng lto the legality OF the imprisonment under the
order of the Commissioner the present application
The learned counsel also asked permission 10 aryue the
questions arising upon the construction Of the Treaty and
act Of Congress passed in pursuance thereof and also upon
the jurisdiction of the Commissioner and the competency
of the evidence before him upon which the prisoner was
found guilty inasmuch these questions had not been
argued before the Supreme Court the side of the British
Government counsel appeared that argument in
its behalf. The request readily granted and is
matter OF qualification 10 me that have had the benefit
the investigations and views OF the learned counsel in aid
of the further consideration Of the which have been
called upon give to the very important and somewhat
difficult questions involved in the final determination of it
For although upon the further consideration Of these cues
lions am obliged to adhere to the opinions originally en-
teained and which have been stated large elsewhere
am the more confirmed and satisfied with their soundness
finding these opinions unchanged after the able adverse ar
gument submitted at the hearing.
The opinions referred TO- and which were cOncurred in
by two OF my learned brethren the Chief Justice and Mr.
Justice Daniel led TO the cOnclusion-l. That the Judi
cary possessed Jurisdiction entertain the proceedings
under the Treaty, for the apprehension and commal of
the alleged fugitive, without previous requisiton made
under the authority of Great Britain upon the President of
the United States and his authority obtained for the pur
pose. g That the United States Commissioner Mr Brdr.
ham, was not an officer within the Treaty or act of Con
gress upon whom the power conferred TO hear and de
termine the question of criminy, upon which determine
ton the surrender is TO be made That there was no
competent evidence before the Commissioner if ne pos
sessed the power to authorize or warrant the finding of the
Oense charged. AS have observed, the grounds upon
which hs conclusions arrived have have been
stated at large elsewhere and shall not on the present
occasion rcpe It them They such would have salts
fed my mind beyond all question doubt had not been
for the different opinions entertained by four Of learned
brethren for whose judgment entertain sincere respect
Those opinions however, not constituting majority
of the Court, and which therefore necessarily led
to dismissal of the without any decision upon
the merits, | am left to follow out my
yictons and cOncu Illusions in the final disposition to be
made of it and being satisfied of the sOundnes5 of them
must enforce them till otherwise authorativey instructed
The practice OF delivering up offenders charged with felony
and other high crimes who have fed from the country
which te crime has been committed into foreign and
friendly jurisdiction is highly cOmnendable, and
toned by the usages of international law. At the
time, is delicate power OF Government which should be
limited and guarded with great care prevent abuses aud
exercised with the deliberaton and caution The
difficulty Of entering into treaties for this purpose arises out
of the character of the criminal codes Of different nations
both respects the acts made penal by the laws and the
degree and mode of punishment annexed to the oen3e
An enlightened nation with criminal code ameOrated by
the advance of civilization would not enter into treaty with
barbarOus one, whose code bloody and cruel And
surrender cautiously limited to few specified crimes
against persons and property OF arocOus character The
treaty between this country and Great Britain in 1894
confined to the crimes OF murder ana iorgeythe present
one of 742 is comprehensive though still restricted
as is also the treaty with France of 1915.
Mr. jefferson, (l793 in letter in reply to demand for
the surrender of fugtves by the French Ministers OBJ
served that The evil of projecting indicators of every
dive i as sensbly felt here other countries; but until
reformation of the criminal codes OF most nations to de-
liver fugives from them would be to become their accom-
plces Another objection to entering INTO these treaties
Is the difficulty in guarding 'nst the abuse arising out OF
demands for the surrender OF political offenders under te
form of some of tho crimes enumerated IL the treaty In
most instances. perhaps OF political olenseS me "c DC
tached nom the political characters oil me uaS't'ol'
youd bring the within some OF the ohenNes cnuneA
ted and unless the government upon whon the d'hfhl
Is made fakes the responsibility of distinguishing between
Tho tso cases he treaty obligation would require the
render The surrender IN such cases Involves Poica
ou...on which must be decided by she political not te
iudic,I mowers of the government It's q general primer
mic as respects political questions concerning oe gov
eminent. that the Judiciary follows the determination OF the
political power which has charge OF ITS l'rcSn relations
and therefore presumed 20 best understand what Is miami
nropcr for e interest and honor of the country lhey are
auestior unit for the arbtramrnt of the judiciary epec
" so for the subordinate maSstrltts OF the country
These questions, growing out OF political offences Sr9ay
embarrass Governments in canVlssng he Pocy an" eNo
d;encv Of entering into treaties ot eNUaNon anu Wnc
tbey arise are calculated To endanger their authority aad
force II was the apprehension OF the people Oh tuS co
frv M the time that the offence OF Jonathan hoo0h WI"
3 diyered mn under the treaty with Great Britain OF
17oa was political offence, which prevented rem 5"" VI
the sipua0ns in the treaty from Il UNI "' Va m
,,,ese,it treaty of 1912 II was clsed uu lie "S M
American tizen and had been impressed on Oo'rd bt
80 ,,aoeol and that the crime committed III reScunS
ioif from the hands of his Oppressors iiad e RPPe
Leusion been well founded, the intense Puo'TT, n5 i
tbat foIowed was credtabe to the nation lheSo cpusu
a ,bus briefly noted for have not time 10 enlarge
~ ~, chow flat treaties Of extradition involve 10 tle
Pau,;on cf them great national questions Whch III u9
g. instance should be referred 10 me PohucI pow" VI
a. na,;or and under system oil governments oo.nk
90 tho Executive. the head OF tle n1u"" " uo -
instances of political offences, IN whch uelna & +po
,node nv one nation upon another ior 30 wv 80;
Asuo y! ~ b,, mo means imaginary cases OF no pracu
I nNncot;on The history OF the times inuIl ~ . 80
a.. A. more than one government On INC OV' 49,
Eone i asitated with Apprehension ana atl. =" Ti1
;act and from which even the gov ~ -. - 5,rr
seems not have been entire h boa songht an a,y.
~ how many political offenders VINO hay yH, =; "a
~ nc from the disastrous struggles ~" noJ ~
I ~ might be pointed on anu soiilc ~
even might be the subject OF reqU'S''io" "
treaty in question , loro+;,p. that strongly urge
ines .,ot;on of the treaty before Us, for when nave
silo va commended and the result oil "nch nv" 80: %
,t.d and Is the given To IL oy rio ~ ~
feau! -, Cor its execution on her part lac ueW1uu ny
srnment for the surrender OF the uS'i' g mus 20
Es ~ d;rcctly upon that Government ana It's CViS
mrs, ,rt~ Obtained before the Judiciary can De ceu
"u In Judgment NJ Is sOunu 0"li5'i
~. - be terms and language OF thN ihstI .,
uo ", ,be intention and policy OF the h'su VV i 60
re- The case Immediately before me ni'! oo -,
par'es -, vnnportance, the fugitive Is an ooSCu'o
colnpsl" and may be the proper S1oJeo
ana hU' rJcr under the treaty. But we cannot ioISo
.Vl n rincines and rule OF construction " W ptSnI
Ia' u H. edually applicable 70 the ciso ~ t en-
MN y" r.nder oi a political offender anu al ou q, -,
; r;,b;n rs provisions We are not 1 mart of he
ing Win isb ft whatever may be the suppose" "''" " ~
aPPe"G therefore the requsnSn sn1ue anS his an
We thhh ft instance upon the Executive anu ms us h