New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1861-02-21

S;srt IN sustain the charge. That fact has not been
certified 10 u.s. though 1t may have been 20 Tue uov
80, and the statute says distinctly that II on the
baay;no of the evidence 1t be deemed sufficient by nun
bs msestrate TO sustain the charge, he shall IN adj
ALTON 70 certifying the same &C., issue has warrant lor
tbe commitment Of the person so charged 10 the proper
;aI tbero to remain until such surrender be MADE or
until such person lie discharged according TO law II
then the committing Justice or Justices deemed the
evidence su ent TO sustain the charge, the prisoner
oueht 10 have been committed for the pupose Gf beng
.urrepdered II they did not declare that they hau
no committed him, what evidence have We thai tner
Adjudication was unfavorae to the prisoner may,
OF course be urged that If they bad not In ehooe h
surrender they would have discharged HIM IRON
This is only negative mode Of proving tua' nv ~
what was required by proving that they nae nyt M
tended TO do 30 they ought 10 nave p :; IsarlS
else In matter Of this kind we mus, ns,e 80,
ehown that the magistrates Oid osolue Inrn"
ebe ,soner "a 10 the evidence sustaining the cnaSe
sne ~ Tba only proper way Of proving that
tbey had 50 decided in this Gaze 10 ths way S 10"
hsfore ms 4 by showing that they had Issued sueh
Warrant the statute requires 10 follow iO1 oDS
saGs;on The warrant shown does not DO TINS, ana
tbe omission ia an important part OF 1t. cannot say
that have any doubt thst the warrant Is Daeed on
tbis ground. The next point for consideration
whether tie order Of the Court OF Queen behch re-
Committing the prisoner 10 the custody Of the Jaor OF
{be County of Brant until warrant shall issue LOT inc
urrender of the prisoner to be tired III the Sa'e "
Missouri for the murder of Digges &c, supplies the
deficiencies in the former warrant and msASs naS
cnt detention lawful No doubt any ofiense against
che law of the Queen, and triable by our laws Ap-
teared sufdciently made out against prisoner
kekinQ bis discharge a habeas corpus, though
warrant Of commitment was oeleeuve, ne Co oal
is discretion might order his detention for tris',
uecause under these circumstances, there would
e no doubt Of their juriadietion as Court over tue
cfense But here there is no jurisdiction gwen 10 Tie
CoDyt as SUCH 10 commit the prisoner TO be surren-
dered That must be done by the Justice or Judge who
NAV have heard and considered the evidence OF cinn-
Atty ANY one of the Judges Of the Su'eiior Courts an
5oubedly has power under the statute 10 issue war
rent and bring the party accused btfo1e h ana 10 con
Aider the eyiden % of lily in the same way as
Justiceof the Peace But this power Is ony bestowed
on the Judges individually il Is not known 10 tne
Court as such. 1t is more likely the power formerly
Sven under our Municipal Acts TO Judge III IMAM
bers TO try the validity of an election on proceeding o
quo vdrfdnto Then the Court could not IN the hrsI
instance have decided the question which the tbgIe
Judge called upon 10 dispose o. Is True, we
tsion of the Judge might under the statute be reversed
itbs full Court but that did not gave the Cour power
10 decide in the first instance, but only 10 te'is"
as provided by law In the present state OF 'Ie iu
hicipa act the jurisdiction gwen a. ., g.
fectiye adjudication by Judge the Court could inter
fere TO put it right Having arrived at The conclusion
that the prisoner entitled TO s discharge on c Op
factions taken TO the form Of the warrant, 90 mol
think we ought TO detain him in custody until the
Court are prepared to decide the other questions raised
upon the argument, which Se sTe not ID POsuon "
do at present. If we should finally concur 10 opihon
those questions we would still be bound to dlseharge
the prisoner on the objections rlsed on bis behalf 70
the warrant; and If we differed from them the pis-
oner would of be BET at liberty Being tnere-
fore entitled to his discharge, we ought not 10 delay
eanecees1Iiy Under ordinary circumstances IL we
were prepared 10 decide the main question, we might
express opinions on it, though bad determined 10
discharge him on the obJection 70 the warrant N oruer
that those who might be e4ed hereafter TO act In sun
liar cases might know what views the Court
entertained on the subject. Ii Is probable thar
q similar question viii not come up again
very soon and In the mean time circumstances
may occur, and such changes take place, thAt ior
practical purposes our juoguent would be useiefs'
Having as already intilnhted cone 10 the conent9n
that the prisoner ebttled 10 his GiscGsrge On 'ne
grounds mentioned have doubt that ii Is best, OF
&c whole that We should do 30 III once rather IMAM
detail hin 10 ger in custody or unnecessarily discuss
Questions or express opinions which may be OF no pae-
teal advantage and which possibly tend to ce
ate difficulties and embarrassment. Our Judgme pro-
ceeds on the ground that the prisoner Ia detained under
The treaty and act of Parliament, aud IN accordance
with the views of the Court Of Queens Bench Ia En-
gland, expressed in Bessets care. Ii was not con-
tended before u.s. ii II would be OF any use 90 TO con-
tend (which at present am far from tupposing would
have been the easel that at couInon law and ~ tue
comfy of nations The prisoner might be detained by
the order of the Crown 20 be- surrendered as fugitive
from justice. Even If that view could be sustained
does appear that there is any such order Tor hs oe
tention. The other formal objections 10 the proceed
ings taksn on the arguments ale disposed OF by the
Judgment Of bis lordship tie Chief Justice.
Mr.. Justice Hagarty said-I am Of opinion that our
provincial stsiute allows the proceedings TO be COM
psnced by the complainant oath before the justice
of the Peace without proof OF charge pending III the
foreign State. Whatever msy he our view OF the
offence apparent in the depositiOns, think that We
are bound 70 see if the prisoner be detained on q
charge which the statuta6e authority, the examining
Justice has deemed sufficiently sustained az to some
one VI the crimes mentioned III the ektradltlCn treaty,
and il IL do not appear that rue1 QuaS adJLdlcalon
has been already made by such authority, DO not
understand that either OF the Superior Courts can
assume the task of examining the depoflilos and
h1ge them sufficient TO sustain the charge That duty
4 think cast else where and must be performed by
the commit ting Justice. lie is 70 be sat SIZED that ole
of the ststuAtle Ofenses Is made out, and he mutt
certify the result at which he has arrived. IL
is not that the Court may think Lis mate
rails warranted lis arriving therest, or that be
should have doDe He must do 30 him
self and cannot, think, do it for him. He must
declare in unequiyoc language that charge for
an le Of murder IL made out. The statute directs him
to certify his finding with copy Of the testimony 10
the Governor, and presume It item rests with the
Queens Government on a view 0t the case 10 assume
tho responsibility Of fnrber action. Ia the absence Of
Sosilive finding by the Justice ~ the efficiency
Of the evidence sustain Of the statuable ofense
an Of opinion that the whole ease f;ls, aud that
legal authority exists to correct supply the defect
In this case the only evidence before Us OF any such
HIDING IL the warrant The charge there expressed IL
that The prisoner In foreign country "wiully, ma
hcio0sly, and feloldonsly stabbed and killed Digges.
Does tins clearly declare crime under the extrad ION
treaty, VIZ: mUrderi au Of opinion that the magis-
trte had no night 10 substitute words Of bis own
If he intended to commit for welIknOvyn crime men,
'toned by a wellknOwn name in the treaty,
and require us 10 assume that be meant the
crime OF murder by these expressions. Ii ID abun-
dainty clear that an indictment for murder 30
worded would be bad and although tie intro
duction Of the word "mshiOusy" would be unsua
bic 10 Indictment for manslaoghter, / do not
how that can help the case In commitments for trial
he