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


liberty Of the citizen against the abuse OF power,
shall be made to yield to the snggestionsof conyc
nience; for although the prisoner before us may
be foreigner, and even may be NJ subject u be
given up to the subordinate and irresponsible agents
OF the government claiming him. still IL IL not Ia b.
denied that the same power thus attempted 10 DC
exercised by them in this instance, " equally appl-
cable TO any citizen Of the country upon like COM
plant; aud besides, under our system OF laws and
principles OF government, No far ~ respects per
scnal security and personal freedom, know Of no
distinction between the citizen and the alien who has
sought an asylum under them. viii simply add,
that according to the act OF 9th and 9TH Victoria al
ready referred to- carrying into effect this treaty,
the indulgence Of any such convenience In its exc
cution, 10 regarded as too dangerous 10 the subjects
of that government residing within ts dominions,
the other side OF this learned boundary The treaty
after providing for the requstion Of the govern
ment upon the other for the surrender then provides
that the respective judges and other magistrates Of
the two governments shall have power, Jurisdiction
issue warrant for the apprehension OF the fugitive
After the requsition has been made upon the Presi
dent, the organ Of the government AZ regards our
foreign relations and his authority obtained, the
means are thus provided for procuring the surrender
An application is then made to the Judiciary of the
country, not upon the requisition OF the foreign
government, but, as in all other cases, upon the
authority of its own-and the warrant issued in
pursuance of such application, runs in the name
Of the President of the United States. The act
of Congress, passed to carry our treaties of ex-
tradition into effect and Of course this one among
others, takes up the subject at this stage Of the
proceedings, and designates the Judicial officers
who are authorized to act, and prescrbes in general
terms the steps to be pursued in the arrest the exam
nation Of the criminal charge and final commitment
for the surrender if evidence Of the crimnality is
found sufficient There is no necessary Discrepancy
between the provisions OF this act and the treaty
the reqistion of the government upon the other
is not attempted to be regulated or defined but is left
as regulated by the terms OF that instrument. The pro
visions OF the treaty must therefore, be resorted to
for the purpose of ascertanng how that reqisition
shall be made. | have already explained my inter
probation of them, and need not repeat it, The ju
dicial officers designated in the treaty, and upon
whom jurisdiction is conferred are :" the respec
tive judges and other magistrates Of the two govern
ments.h The act of Congress, in carrying out this
provision designates the Justices of the Supreme
Court the Judges Of the several District Courts OF
the United States, the Judges of the several State
Courts and Commissioners specially authorized 80
to do, by any Of the Courts of the United States
The terms other magistrates of the two govern
ments' are quite indefinite and difficult in their
application by judicial construction In an enlarged
sense they might embrace all the United States Com
mssi0ners appointed by the Circuit Court, who, IN
der the act of Congress of the 23d Of August, 1872
are authorized to arrest persons for crimes against
the United States, and imprison or bail the same
and, also, all the justices OF the peace of the several
states upon whom like power is conferred blythe 33d
section Of the Judiciary act Of 1879. / can hardly
suppose that the distinguished citizen who repre-
sented this government in the negotiation of the
treaty or the President under whose supervision it
was entered into contemplated the exercise Of high
and delicate power over the rights and liberty of
The citizen by so numerous body Of the magistracy
of the country But, he this as it may Congress in
providing for the execution of the treaty, has de-
clared who shall constitute those I" other ma
gistiatesp before whom the application may
be made for the arrest and examination, and
have confined the jurisdiction in this respect, to
the Judges of the several State Courts and Commits
soners specially authorized by the courts of the Uni
ted States, for the performance of that duty. The
provision necessarily excludes the great body of the
State magistrates and Of United States Commission
crs possessing general power to arrest and commit
tor offences against the United States, and is in no
respect in conflict with any clause in the treaty but
in harmony with it and in furtherance Of proper
and discreet execution OF its stipulatons.
IL has been argued that, admitting the State magis-
rates to possess no power under the act of Congress
passed to carry the treaty into effect yet that act
authorized to arrest and commit for
crimes against the United States under the act OF
1872 slight attention to the provisions Of the act,
think, viii refutc any such conclusion. The 1st
section cofers the exercise Of the power under the
treaty, upon the judges Of the Federal Courts and
n the State Courts, and npon commissioners autho
rized so to do by any Of the Courts of the United
States" and the 9th section proydes
THAT il shall be lawful for the Courts of tho United
States, or any Of hem to authorize any person per.
sons to act as Commissioner Commis soners under
the provision OF this act and the doings of such person
persons authorized in pursuance Of any OF The pro-
visions aiore aid shall be- good and available to all intents
!; nd purposes whatever
Taking these two provisions together and constli-
ing them a part OF regulation by law Tor
,ar.ing tie treaty into effect think it plain that
commissioner, competent Ia act In the matter must
be specially appointed, or authorized by the Federal
Courts for that purpose The first section conlers the
exercise of the power TO Commissioners thus special
y authorized to perform this duty: and the sixth pro-
des for the appointment of them and declares that
heir doings in the premises in conformity with law
ha We good and valid. How it can be said that the
exercise Of powerthus guarded and restricted both
IN the grant and in the appointment, is conferred,
also upon body OF officers appointed under different
set. and for other special and limited duties, admit
Is beyond my comprehension. But it is urged that
!. the act oil Congress cannot be construed con-
I,rring the power, it may he derived from the APP
pontment OF this commissioner, under rule Of the
Circuit Court oil the United States, adopted il,
January, ISL That rule provides that the clerk Of
The Circuit Court and OF the District Court, and
other deputies. 1.-THE commissioner in question being
deputy OF the Clerk of the District Court) shall
be ~ cFcio Commissioner of the Circuit Court; and
shall be authorized to execute all the powers, and
perform all the duties conferred by several acts
Of Congress enumerating them, but OF which the
act cf ls4s, the one in question, is not included,
" on OF any act Of Congress having relation to such
and their duties or powers" These
officers thus appointed by the Circuit Court,
are authorized by the several acts enumerated
t. take afidayits aud bail IN civil cases; and
TO arrest and commit for offences against the
United States, and the latter clauses OF the rule
provide for the performance Of any other duties
that may be conf. rred upon them by any other
acts Of Congr,s-. Now it is apparent, unless it
b. shown that the act OF ISIS coDfers the power
a. &C; under the treaty in the extadou Of fugtive-
upon these officers this clause in the rule has no ap
riicaton 10 the case; and that no such power has
cen conferred by that act il am not greatly mis-
t1hen has been already demonstrated. The rule Of
the court adds nothing 10 the argument in favor Of
The power, that depend, upon the act oil Congress
Which provide for carrying the treaty iuto effect,
and which col.ers tie power only npon commission
err specially appointed Icy the federal courts for this
purIose The treaty provides that the arrest Of the
alleged fugitive and commitment for the purpose OF
q surrender, shall he made
iron such evidence 81 crrninality according 10 the
law q the pac, where the fugitive person charged
.LaD b. found would tfy HI apprehension and com
nilmcnt for trial u he crime offence had there been
eCmnltle-in
Tho act ~ Congress makes no provision on this
subject except ~ u respects the admissibilhy OF
ayc.ies 81 evidence which will be noticed hereafter