The Council Bluffs nonpareil. [volume] (Council Bluffs [Iowa]) 1857-1867, 1860-03-17

OF SCO44 81 NEE l. AN ~
GIL BLUFFS, IOWA,
] refused the order of arrest in this cast
for the following reasons:
lst-The affidavit presented, was moi
made before a"magistrate," but before 9
Notary Public.
2d-Even had the law recognized an affi.
davit made before Notary Public, the aft.
davit in this case was not authenticated BY
the Notary's seal.
3d-The affidavit does not show, unless
it be inferentially, that Coppoc was in tht
State of Virginia at the time he s'aided and
abetted John Brown and Others" as stated
therein.
4th-It did not legally ssoharge him.
with commission Of ''treason, felony OF
other crime."
will consider the first and second rea-
sons in connection. 1t will not be preten-
ded that Notary Public, an officer un-
known to the common law, and equally un-
known to the administration of Justice, and
never charged directly or indirectly with
any step from first to last in the trial OF
criminal offences, 10 ga magistrate within
the meaning Of the term" as used here OF
elsewhere. The Governor of Virgins does
not 90 pretend, but seeks to avoid the force
OF this object By citing an act of Congress,
passed September, 1850. He says:-ssBut
the Governor Of Iowa has failed to see tina.
by an act of Congress, passed on the 10th
day Of September, 1850, it is provided that
10 all cases in which, uoder the laws of the
United States, oaths or afirmations. or ac-
knowledgements may be taken before any
Justice Of the Peace of any State or Ter
ritory, such oaths or afirmations or ac-
knowledgements may hereafter be also taken
or made by or before any Notary Public du-
" appointed in any State or Territory
"This act" he adds, completely overthrows
the reasons assigned by the Governor Of
Iowa, and makes the case so plain that mr.
gument and illustration can add nothing to
it." It's true, had not seen this act
when refused the warrant for Coppoc's
arrest but If had seen it, my action would
have been the same. In answer to my OBJ
jection that the seal Of the Notary was not
attached to the affidavit, he says: ssThe
Notary before whom the affidavit was made
was duly appoicted in pursuance of the laws
of this Commonwealth, (Virginia) and kis
signature vas accompanied by scroll, in
precise conformity with established usage
and the decision of our courts, which reccg.
nize scrolls as SEALS" -.f ,, ...t -
If the Governor Of Virginia has not fail
Cd to see the "sct of Congress, passed Sep
tember 10th, $780," he has certainly failed
to read it. To suppose that he had read IL
would be to suppose that he had quoted
just 90 much of said law as tended to sup
port the position he had taken, and suppress
sed go much of it as showed that position to
be untenable-a supposition which my sense
of "comity'' forbids my entertaining for
supply that portion of the law
which he has, doubtlessly through inadver-
tance, ommitted. The last words quoted
by him, the words estate or Territory"
are in the law as printed, followed by q
comm,, and then in immediate connection
follow these words: sand phen certified
under the hand and official seal of such No
tary, shall have the same force and effect,
as if taken or made by or before such JUS
tice or justices of the peace. [See 9th U.
S. Statutes at large, page 1851 From this
it appears by express provision Of the law
Of Congress, an affidavit made before No.
>sry Public, shall have "force and effect"
M, " when "certifed under the hand and
Gc;n-l SEAL" Now, the affidavit made in
his case before Notary Public is not GER
,6 cd under his hand and official seal, and |
epret to be G. compelled to add that the state
nent of Goyerp,,r Letcher, that the sigma
ure of the Notary 70 the affidavit, "was ac-
.omnan;ed bv a scro,.'' is wholly unfounded
q fact. So far is this from being correct,
hat to this document recs. we'd from him and
till in my possession, there ~ neither seal,
Tor scroll, nor mark, nor deyie 2 Whatever.
Comfy" requires that shall e. press my
relief that in so radical an error OF 1act,
he Governor of Virginia was misled bv the
of others, or by defective
rather than by desire to sup
port his argument by a Misrepresentation.
To recapitulate upon these points: The
aw of 1893 provides that when in this class
If cases, an affidavit is used, sucn affidavit
must be made "before a magistrate." The
Governor Of Virginia does not pretend that
! Notary Public is ga magistrate" within
he meaning of that Law, but claims that by
tho law of 1850, the law of 1898 was so
modified as to permit the use Of afhdavits
made before. Notaries Public. But the
,ame law of 1850 which modites the law of
1893, expressly and in;terms provides that
such afidsyits, made before a Notary Pub
|ic, sshall have force and effect" only when
''eertifed under his hand and official seal,
and the affidavit in this case was not so GER
tilted. Not being so certifid. it did not
have "force and effect" aud not having
''force and effect" no warrant could issue
upon it. 1t will be observed that the Off
cial seal of the Notary is expressly required
by the act of Congress, and being so requi:
red, l could not waive it if | would. 1t ap-
pears to me that upon these points "lhe
case is so plain that arguments and illustra.
ton can add nothing to IT," -....
/ leave this part of the discussion here,
waving the question whether this Law of
1850, 80 general 10 its terms, can be con-
strued as repeating Or amending the specific
requisites OF the special act providing in all
respects the mode by which fugitives from
justice are to be surrendered to another SOW.
ereignity for trial. am advised that this
would not be admitted by the
Courts, and is altogether untenable and is
without precedent in this State.
My third and fourth reasons, yhich l
shall also consider in connection) he that
the afidavits did not show otherwise than
by inference that Coppoc was in Virginia at
the time he "aided and abetted" John
Brown and others, as stated; and did not
legally charge him with crime What is the
substance of the affidavit? Striped of all
verbiage, it is this and this only; Andrew
Hunter swears that John Brown and others
on certain days and at certain place in
the State of Virginia, committed certain
crimes" aud "that from information re.
csived from several persons" recently con-
demned aud executed in Virginia, and
"from other facts that have come to his
knowledge" be ssperily believes" that Bar
clay Coppoc, "aided aud abetted" said John
Brown aud others in the commission of said
crimes, aud that from other information
more recently received, he rerily believes
said Baclay Coppoc is a fugitive from JUS
tice now escaping into the State Of Iowa.
Now what is the law? quote a note
from Brightly's Digest of the laws of the
United States, page 293: "The affidavit
when that form Of evidence is adopted,
must be at least so explicit and certain that
If it were laid before magistrate it would