The Burlington weekly hawk-eye. [volume] (Burlington [Iowa]) 1860-1876, 1860-03-10

1uninR o3 &ntua = - 49, keee.
Y Govosn0S cf ;kin1S dcSo hO<NC Nrettnd, d
Y seetEs 70 apq lAs a - his jecaicn ~ h
|tin9 - 90 ConGA sed eptezsF 4
o5o. ne 90 .IDuS III overfr of ssa +
= fhlted % - TIT N ~ - Con-
assed On the 10th day 81 EeptembeT, 1850, Il y |
rovided that Ia ~ cases n which, under the i
~ Of the United States, oaths y allrmations,
1 acknowledgements may be taken before any |
nsticc 81 ~ Peacs % m Btate a. 1prrit0fI,
MN oaths, aiitmations Of acknoM ledgDscnts may I
ercsfter b also taken Or made By o. before my
Totary Public duly appointed in any State or /
'erfitory. This act, he adds, completely |
verfhrOws the reasons assigned ~ The Cover
IT, Of lows, and makes the case - plAin that |
rxurnent and illustration can add nothing 70 II
/ Il true, I had not seen this act when refused
he warrant Tor C0ppoc's arrest; but IT had seen
|. INV action would have been the same. ~ |
nswer ID my ohjcction that the seal Of the No
ary MS not attached to the AFFIDAVIT, he says:
The Notary before whom the affidavit was made
vas duly appointed ii pursuance Of the laws Ct
his Commonwealth, (virginia) and his signatatre |
ras arcoMpani<d 6y scr0N, in precise conformity
nth established usage and the decisions OF our
courts which recognize scrolls % seals
III the Governor Of Virginia has not "failed 70
seen the '.act Of Congress, passed september
l6th, 1850, be has certainly failed e read it,
70 suppose that be had read il, would be 70 sup
pose that he had quoted Just 70 much Of said law
as tended to support the position be had taken,
and suppressed SO much Of Il Is showed the pc
sition TO be untenable--a snpposition which my
sense Of comfy forbids my. entertaining for 4
moment. / supply that portion Of the law which
he has loubtlessly through inadvertence. oiiiit-
ted The last words quoted BY HIM, the words
State or Territory are in the law AZ printed.
followed by q comma, and then in Immediate
connection follow these words: "dad chen ee,1s-
led uade. tie Aend and Official xsai Of such No
tary. shall have the same force and effect, as II
taken or made by or before such justiccor jus
tees DC the peace. [See 9th U. .. Statutes 1t
large, page ASST From this it appears by ex-
press provision OF the law Of Congress, nm afii-
dayit made before Notary Public, shall have
ssforce and effect only when tcerfied aHdEv his
hand and official seaL' Now, the affidavit made
in this case before Notary Public, is not certi-
fed under his hand and official seal, and regret
to be compelled to add that the statement Of
Governor Lctcher, that the signature Of the No
tary to the affidavit, twas accompanied BY
scrolI.i wholly unfounded in fact. So far is
this from being correct, that to this document
received from him and still in my possession,
there is neither seal, nor scroll, nor mark, nor
device whatever. Comfy" requires that shall
express my belief that in 50 radical an error Of
fact, the Governor of Virginia was misled BY the
information of others, or by defective memory,
rather than by desire to support his argument
by Misrepresentation
To recapitulate upon these points: The Law of
1898 provides that when in this class of cases,
an affidavit il used, such affidavit must be made
ssbefore magistrate The Governor Of Vir-
ginia does not pretend that Notary Public is
"a magistrate" within the meaning of that law,
but claims that BY the law of 1850, the law Of
1898 was so modified as to permit the use Of
affidavits made before Notaries Public. But the
same law Of 1850 which modifes the law of
1793 expressly and in terms provides that such
affidayits, made before Notary Public, stshall
have force and effect" only when certified uader
lis hand and official SEAL and the affidavit in this
case was not 50 certified. Not being so certified,
| it did not have tforce and effect" and not bav
| ing s'force and effect no warrant could Issue
upon it. 1t will be observed that the official seal
of the Notary is expressly required by the act Of
| Congress, and beng so required, could not
waive it if would. 1t appears to me that upon
these points "the case is so plain that arguments
and illustration can add nothing TO it,
! leave this part of the discussion here, waiv
| ing the question whether this law Of 1850, SC
general in its terms, can be construed as repeal
| ing or amending the specific requisites Of the
"
| which fugitiyes from justice are to be surren
dered to another sovereignty for trial am ad
vised that this construction would not he admit
ted by the Courts, and is altogether untcnablt
and is without precedent in this State.
My third and fourth reasons, (which shall
also consider in connecticut are that the affidav
its did not show otherwise than BY inference
that Coppoc was in Virginia at the time HI
ssaided and abetted' John Brown and others, Al
stated; and did not legally charge him Will
crime. What is the substance Of the affidavit
Stripped Of all verhiage, it is this and this only
Andrew Hunter swears "that John Brown ant
others on certain days and at certain place il
the State of Virginia, committed certain crimes,
and ''that from Information received from seve
raj persons recently condemned and executed il
Virginia. and from other facts that have conn
to his knowledge he s'eriiy 6elietes' that Bar
clay Coppoc, ''aided and allotted" said Johl
Brown and Others in the commission Of sait
crimes, and that from other information NOR
recently received, he ",e,.zy 5licres said Barcla,
Coppoc il a fugitive from justice now escapin;
into the State of Iowa.
Now what il the law quote note from
Brgntlys Digest Of the laws Of the United St ties
page 293 .sThe affidavit, when that form Of cvi
dence il adopted, must be at least 80 explicit AM
certain that II it were laid before magistrate j
=
answer the CHARGE 6 Pam Lar Jour 4l4, AS
1t must state positively that the alleged crime wa
committed in the State from which the party j
alleged to be fugitive, and that the p4rty
actually fugitive from ttat SGate. "Erpm7
Smith, 3 -NeC7ean l2l, l22, letters case Zabr. 81
In the matter of Hayward, Lar Of s. o., 1Ol
Dcgam u.s. .Aichaei, 2 Carter, 1896 / quote fur
Their from 4HcI2e1a l35. "Again the affidavit
charges the shooting on the 9th Of May in tn
County of jackson and State Of Missouri, that
b'eres md has good reoso;, 70 be'iee from, eideac
and information ttiea.) IA his fossessioa TN
Joseph Smith nus accessory before TIE faet, aad
4 resident or citizen 81 Illinois,, The Court g, O.
to say: There are several objections to this
Mr. Boggs, 1.-THE afiant in that case having til
evidence and information in his possession
should have incorporated Il IN the a5ida,it, to ena
BILE the Court to Judge of their snfhciencv t
support his belief Again he swears to lega
conclusion when he says Smith was an accessor
before the fact. What constitutes man an aC
ccssory is question of law; and not always cas-
Of solution. Mr. Doggs' opinion then is no
authority He should have given the facts. III
should have shown that they were committed i
Missouri, to enable the Court to test them b
the laws of Missouri, to see if they amounted /
d crime. Again, tie atfd,tit Is fatally deftctis
~ tbs Rat Boggs Saears 10 his belief
Let US apply these rules to the affidavit unde
consideration. Andrew Hunter does not swea
posaiHflg that Coppoc was ever in Virginia. H
says certain persons other than Coppoc comgiil
ted certain crimes at certain places in that State
and that Coppoc aided and abettedn them
leaving to be inferred that he was with them i
Virginia !, bat he might have furnished arm
from Ohio, or ammunition from Pennsylyanis, 0
aid and comfort from Maryland; thus staidin
and abetting' the crime committed in Virginia
without being there in person, and yet not b
liable to be tried in Virginia for so doing MI
: Hunter says Coppoc is "a fugitive from justice
escaping in the State Of Iowa" From wha
States From Virginia, or Maryland, or Penn
sylyania, or Ohio? 1t may be inferred the q
cape from Virginia but it is not positively
so stated, nor IS there on either point that .'cel
tainty that would justify magistrate in commit
ting an accused party Again, Mr.. Hunter cha,
ing the evidence and information in his possession
Should have Incorporated 1t in the affidavit
He swears to legal conclusion when he say.
"Cnppoc aided and dbettodn What constitute
aidaag and obtttsng SIS question of law and nc
always of easy solution Mr.. Hunters aopinion
is not authority. He should have sworn to III
! facts The affidavit is fatally defective in Thu
that Hunter swears to his belief The Who'll
case is this. A paper was presented TO me pu
t.arfiner IN aff;Iax;t ,,rfa.