The daily union. [volume] (Washington [D.C.]) 1845-1857, 1853-10-12

serves on the hypothesis Of the legal conclusion OF Mr.
Justice Nelson 10 give ursdcon but that jurisdiction.
when thus called into lie by the President excu
syey with the magistrate making the arrest and exam
nation II he certifcs the crmDaly OF The accused then
The President - 10 order sue0deI otherwise there H
the end, pro has WIGS, OF the duty and power OF the Pres
ident.
Nor appeal be taken from the decision Of MIR JUS
lice Ednonds TO any other court 10 revise that de-
cslon. The Judge or magistrate IN this case acs by
special authority under the act OF Congress- no appeal
Is given from his decision by the ac and he does not
exercise any part Of what is technically considered the
Judicial power OF the United States. Elk pane bletzger
Howard, ITO, United States .. FeneiIa, XIII Howard
49, As, per Chiei Justice fancy IN re kane KAY How
ard. 1903, 100 per Mr.. Justice Canis)
Indeed by the municipal law, as well OF England as OF
the United States The judgment upon the evidence on the
preliminary examination OF party accused as also 'he
mode OF conducting the inquiry including The quesuon
q demanding NE party are - xens se,sou BENZ wise
one OF course and guided by me piecedsns anu uoe
trines OF law but still subject TO appeal as SUCH TO
another mag srate or court. Chilty's Grim. Law by
Perkins, o. 50; Archbolds Grim Prac. by Waterman,
D. A; ii Nav York Revised Statutes, p. 709
ee constrained, therefore, TO come TO the conclusion
that the President has power to revise The action OF
Mr. Justice Eamonds or order the detention OF Calder
However announcement this may be 10 the authorities
OF the British government in the present instance. The IN
are obviously reciprocal and inevitable
The two governments have BY treaty. agreed to make
the question Judicial one and they could not do other
wise for the government OF the United Kingdom is
constitutional one well that OF the United States,
and in both countries the writ OF hsbsss corpus presents
itself as the safeguard the hands OF the Judges Of the
Freedom against all focble encroachmens on
the part of the Executive.
do not perceive how different conclusion could be
reached upon similar arising in the United Kingdom
The tenor of the statute there that Tequison oil the
United States, any principal Secretary OF State or certain
other executive authorities designated may issue war
rant, to signify that such requsition has been made
and to require all magistrates and officers OF justice 10
govern themselves accordingly and 10 aid in apprehsnd
ing the person accused and committing him TO Jail. for
the purpose OF being delivered up TO justice and there
upon proceeds the statute, shall be lawful Tor the proper
magistrate 70 examine. upon OATH any persons touching
codng 10 the law OF the place, would justify the appre-
henson and commitment for trial Of the person accused of
the crime had been committed in that jurisdiction, the
magistrate commit the accused TO Jail, there 70 re-
main until delivered up tn pursuance OF the requIslllon
of the United States. wi and WI Vcl, CD. 10, sec ID
of principal secretary 10 arrest the alleged fugitive or
direct the examining magistrate or to require the de-
teniion OF the accused for further examination.
All he is empowered by the act 10 DO. is, to issue
warrant "to signify that such reqnisitlon has been
made " upon which magistrates and other officers OF JUS
tice are govern themselves according 10 the provisions
oil the treaty and the law OF the land.
One Thing only it seems TO me, be done in behalf
of the British government. Mr. Champion may, I'M
doubleday, cause complaint 10 be entered against
Calder. and apply for new warrant Of arrest either
der has not been tried He has been examined by q
and the evidence adjudged 10 be insufficient
Justify his exiradilion. But upon complaint he
traie and exhibition OF additional evidence may lead
TO the conclusion of his crimnaliiy and the certificate
thereof 10 the President.
Permit me- in conclusion further to suggest with all
proper Difference for the opinion OF Mr. Justice Edmonds.
whether he has not power TO remand Calder, that 49, II,
his judgment, the circumstances OF the case and the
present Stage OF the examination justify it. Of the gen.
eral power of magistrate 10 remand tor re examination
there can be doubt, OF course 1t being the familiar
practice Of magistrates and cases not wanting OF prs
oners being detained mere than twenty days between
their first appearance ald their commitment for trial. and
being brought up for examination several different days
during the interval ii Chliiy's Grim Law by Perkins,
D. 10; j Archbod's Grim. Prac. by Waterman, p. SO
The authority do this has been recognised in New
York in the case of State magistrate examining for
charged against the United States (EI psre Smith.
Cowen, 273 J In Massachusetts it 10 regulated and al
lowed by statute. REV Stat, ch I35, g. 81 II is true
that some authorizations have been made in England
which subject the magistrate who remands TO an action
proper motive is pretended What is reasonable time
is mixed question of law and OF fact depending upon
the probability of obtaining further and competent evil
dence What is reasonable, MIR. Justice Bayley OBJ.
observes on one occasion, does in the dscre-
ton OF the magistrate there may be cases in which three
days might be reasonable lime, and yet there may
be cases where three months light be reasonable Da-
Wis Capper, iv Darlington Il p, 443, note
But the magistrate acts IN The question OF remanding,
under the peril that, iespass being brought, jury,
with proper instructions from the court shall hnd the
y Capper ,ubi supra Davsp. Capper, Barn. Il Or, 2S)
which The more conclusiveIy shows that the whole
question here is within the jurisdiction OF Mr. Justice Ed
monds And if, having decided the question Of
criminsy and made report thereon to the President,
this Judge should be OF opinion that is too late for him
motion for delay, and 10 remand the party
unit, igrEer evidence be procured, does not TO
that his doing be subject to any Just exceptions
tbs part either Of his own government or that OF Great
Britain.
c. CUSHING.
Hon. WIN. l.. MARCY. Secretary OF State.