The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-05-05

The practice Of delivering up offenders charged
with felony and other high crimes. who have fled
from the cosntry in which the crime has been COM
mitted into foreign and friendly jurisdiction, -
highly comrnendabe and sanctioned BY the usag es
of International law. At the same time il il del
icate power Of government, which should be linn
tied and guarded with great care, to prevent
abuses and exercised with the tmost dsliber alton
and caution. The difficulty Of entering into tres
ties for this purpose, arses out OF the character of
the criminal codes of different nations both "A n
respects the acts made penal by the laws, and the
De gree and mode OF punishment snnexed 10 the
offence. An enlightened nation. With . criminal
code ameiosated BY the advance 81 civilization
would not enter into treaty with a buvbaroua
one whose code vac bloody and cruel And even
among enlightened nations the stipulations for
the surrender are cautiously limited to few an
cited crimes against persons and property of
atrocious character. The treaty bet ween this
country and Great Britain, in 1894 was confined
10 the crimes of murder and forgery-the present
one OF 1912 10 more com pc che sve. though still
restricted, 10 also the treaty with France of
ls43. MIR. Jefferson, (l793.) in letter in reply
TO demand for the surrender of fugitives. BY the
French ministers, observed THAT the evil of
protecting malefactors OF every die is as sensbly
Felt here in other countries but until refor-
ton OF the criminal codes of most nations, to de-
liver fagitves from them, would be to become
their accomplish
mother objection to entering into these trea ties
10 the dificu ity in guarding against the abuse
arising out OF demands for the Surrender Of politi
cal offenders, under the form OF some OF the crimes
enumerated in the treaty. In most insta nces pei
haps, of political offences, the acts detached from
the political characters of the transaction would
bring the within some OF the offences enume
rated; and, unless the government upon whom the
demand 10 made takes the responsibility Of dis
tiuguisning between the two cases, the treaty obi
CATION would require the surrendef. The surren-
der in such involves a political question
which must be decided by the political, not the
judicial, powers of the government. IL 10 gene
raj princi ple a. 1T respects political questions
corning foreign governments, that the judiciary
he de m IA a of he
which has charge of it's foreign relations, and il,
therefore, presumed to beat understand what
IA ut and proper for the interest and honor
OF the country. They questions unit for
the arbtrament of the judiciary, especially 30
for the subordinate magistrates Of the country.
These questions. growing out OF political offences,
greatly embarrass governments in canvassing the
policy md expedency of entering into treaties of
extradtion; and when they arise, are cacula ed
to eadanger their authority and force. IL ~ss the
apprehension OF the people OF this country, at the
time, bat the offence OF Jonathan Robbins, who
was delivered up under the treaty with Great
Britain OF 1874, political offence, which pre-
vented a renewsl ofthe stipui,'ions from h-, time
down to the present treaty OF isa2, asst vas claimed
that be American citizen and had been i'm
pressed board British vcnsel. and that the
crime was committed in rescoinx niaDself from the
hands of his oppressors- Had the apprehension
been well founded, the inerse public ndigna ton
that followed vas crsditabe to the nation These
considerations. thus briefly noted, for hsve not
the time TO enlarge upon them, show that treaties
Of extraditon involve, in the execution Of them.
great national questions. which, In the first in
stance should be referred 10 the political power Of
the nation; and under our system Of government.
belong to the Executive, the head Of the milton.
decide.
The instances OF political offences in which De
manos may he made by one nation upon AnoSher
for surrender II the offs nder, By
imaginary or cases OF practical application.
The bistory Of the times Informs that. at this
day, more than one government Of the continent
OF Europe is agitstcd 2itn apprehension and alsrm
IA irns hfrn tne
ment of England seems not 10 have been entirely
free. And IN our Own country. how many political
Offenders, VINO have sought an asylum here from
the disastrous struggles Tor liberty IN the other
hemisphere, N ght be pointed out. and some Of
whom might be the subject of a reeuisition
under the very treaty in question? Tncse are some
of the considerations that strongly urge The inter
probation of the treaty before US, for whch have
heretofore commended, and the result of which has
been already stated, and 10 the one given to it by
Great Britain IN providing for its execution on her
part.
The demand by this Goyernme emit for the surren-
der of the fugitive must be first made directly upon
that Government, and its consent and authority
obtained, before the judiciary can be called into
requisition, In our Judgment, IL is a sound con-
struction of the terms and language of that instru
ment, and carries out the intention and policy of
the high contracting parties. The case immedi-
ately before may be one of comparative unim-
portance, "a the fugitive 10 obscure and humble
individual, and may even be the proper subject for
. surrender under the treaty. But we cannot for
get that the principles and rule of construction,
to De applied to hun, will be equally applicable to
the of the demand for the surrender of poti-
cal offender, and all others falling within its pro-
visions. We are not, therefore, at liberty TO dN-
tInguish, Whatever may be the supposed merit of
the application. 4
We think. therefore, the QUESTION shou Id have
been made, in the FIRST instance, upon the Execu.
tive, and his authority obtained in order to war
rant the interposition of the judiciary; and further
that the commissioner, before whom the spplica-
ton was made, possessed no jurisdiction Of the
n Wit he aty l,xy
of Congress passed in pursuance Thereof, and that
the evidence IN the case upon which the offence
founded was incompetent, and hence did not
warrant the finding of the magistrate. The proof
In all cases under a treaty of extradtion, should
be- not only competent, but full and satisfactory
that the offence had been committed by the fu gil
tive in the foreign jurisdiction; sufficiently so to
warrant a conviction, in the judgment of the
magistrate, of the offence with which be is char ged
ii sitting upon the final trial and helring of the
case No gstrate should order surrender
short of such proof The result is, that the pris-
oner Ia entitled to be discnal ged from imprson-
ment under the warrant or order of the commits
sioner, and, consequently, from arrest and con-
hnement under the warrant issued by the acting
Secretary of State in pursuance thereof But,
the discharge in quence of illezaiy in the
proceedings under the treaty and as the question
of surrender ia one of which can entertain juris
dctIon, am ready to hear any further evidence
ON behalf of the application which the representa-
tive OF the British government may see hit to pre-
sent.
Mr.. Jordan, for the British government, request
ed that the prisoner might be detained in custody
Of the United States marshal until the claimants
could be prepared with further evidence
Judge Nelson said he would adjourn il until to-
morrow.
Mr. Jordan said it would be impossible to be
ready 10 morrow, and wished the to be ad :
iourned to next week.
Jud re Nelson said that the case was pen ding for
nearly twelve months, and ne thought il fun time
to have il decided and counsel for the claimant
could not procure the necessary evidence in due
time, the court would order the prisoner TO be dis
charged.
Counsel for the prisoner informed the court that
Commissioner Morton had issued n warrant for
toe of the prisoner for the same offence.
The court read the warrant, and said that as il
had been issued in the face of the decision just
given by the court and in violation of t, the court
would enforce its decision. IT,
After some further remarks from counsel on
both Sides the United States district attorney said
that according to the construction which the court
had given to the treaty, the United States marshal
would not be justified in arrestng the prisoner.
The court then ordered the prisoner to be dis
charged and &c left the court, and was received
outside by loud cheers from his countrymen.
FaoN DoMINIcA-Dsah of the American Con-
sa.-Ca plain Mohigan, of brig Truxillo from Rio
L. <>vu n,ru fpira Aortt a tpt,r Of n,