New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1861-02-21
ming counter to the opinion expressed In ez psrr

us by eeTtOr0r ss to which technical obectiont
may be suggestedl reqCire further time before cad
adopt rs priDdplsOf the law, that because man IL
slave in country where Slavery Is legaized, be u
legally incapable VI committing ciine, that he Is not
to be teemed "per.on" who may be charged With
an otense. Nor am prepared TO decide that ON a
charge OF murder sufficiently sustained by evidence to
warrant bis Icing committed for trial according TO our
law tie prisoner accused of that crime would not be
witbe We mearing OF tie treaty, because IL acquitted
Oh tii IN the country where the accusation arose
be would be detained In bondage as slave or because
1t might be feared, and Wth rtaIcn feared that
because lie slaye he would not be treated Ia the
spiIit Of justice and igpartialiy freeman be-
fore the tribunals Of foreign State where Slavery il
established by local law. or, 10 take possible case
to arise in Free State, let il be supposed that slaye
flee from Slave State into Free State whose laws
nevertheless, unlike onr own happy institutions, sane
tiOu and require his nder merely slave, that
the fugitive kill officer If the Free State who 10
under regular process to arrest and dean
tim with view TO his surrender, and having killed
the officer ESCAPES into this Province, do not yet see
any way TO the cOncluin that we could bold the case
not TO be within tie treaty aud tie act clearly not to
be murder that there would be nothing for Jury to
Try but hat the Court could dispose Of il as a pure
question OF law. For If there be question. Of fact 10
be tried apprehend he meet be surrendered as such
question could only be uied In tie country where the
fact arose.
These and other similar quotations Of too serious
character to be decided upon impulse or IN haste, anc
do not scrue TO ray that 30 long as the pisoEer sus-
nounclng AN OF inion upon them. sm reluctant on
the one band where the accuser does lot make II In.
dspenable declare that each individual OF the assured
number Of 900 QUO Of slaves ia the Southern States
may commit assassination la aid Of his escape on any
part of bis route this Province, and lind immunity
and shelter his arrival here. am reluctant, on the
other hand to admit that Great Britain has entered
into treaty obligations TO surrender fugitive tave
who ss lis sole means Of obtaining Liberty Las shed
the blood OF the merclsss tskmaster who held him in
bondage. An occasion may aiise when il will be my
duty to adjudge one way Or the other But the Decee-
sity does lot exist az present. and au rot AFRAID 70
| avow that rejoice i. am, however, glad that
the discussion has taken place. that the doubts and diff
fcules Il suggests have been brought prominently
forward. The power OF dealing with taem Is 10 the
hands of Others aud tie ty Of dealing with them
must NIX be felt BY those who possesS the power.
Mr.. Justice Richards sad--It seems to be generally
conceded that unless there are treaty Guisaonst TO
that one nation is not bound to deliver to ansther
fueitives from i1ste ser king refuge IL the Territories
OF such Power. Mr. Justee'StoIy, in bis "Confct Of
Laws" D. So states that Lord Coke expressly main.
tains that he Sovereign Is not bound 10 surrender Up
fugitive Criminals from other countries VINO nave
sought shelter in bis doinions. Mr. Phijlimofe, IN
lis recent very el bOrate work International Law,
Observes D. ALL "France, kussia, England, and the
North American United States have constantly either
by diplomatic acts or decisions on their Tribunals ex
pressed their opinion that apon the principles OF lner
national law irrespective OF treaty, the surrender oil
foreign criminal cannot be demanded" lie adds
"the result If the Whole consideration OF this sub.
ject is, that tie extraoition OF crl ninaB Is Hst,
Ter OF county, of hight, except Ia cases OK special
convention apprebend there can be 30 doubt that
if it were not for the treaty and the Act OF Par
lament carrying it out we would not be Obliged 10
discharge the prisoner from custody, although II was
clearly shown that be had committed murder in the
state of Misoui Ii it does not appear that he has
committee sou.e oieuse against tue Queen pea e we
haye 10 ght 10 detan him except under the authority
ofthe AT OF Parliament Nemust look then TO the stat
ute 70 bee il this prisoner IS charged with any oense
under it, and if be had been committed aceorong 10 ts
ere. II l. objected that the statute requl es that tue
IrisoLer should lie charged with murder ana that ne
should be committed TO the JAIL there TO remain until
he is suirencefed tbe words used Ii the nu-
mus ouly inEy charge Of uanslaughter, and by the
| warrant 10 stands committed until delivered by cue
course Of law There l. 10 doubt that II the ofense
| charged is rot, murder then tie prisoner must be
| discLafgeU and it is equally certain that the
statute prescnbes that the Magistrate deemed
The evidence sufficient 10 sustain TIE eh.rge, he
ought, among other things, to have com
nitied the prisoner 10 the proper jail, there TO
remain until he surrendered or until he was dis
charged according To law Tie words of the warrant,
With states the Charge as to the prisoner are tns' ne
cid in Howard County, III the State OF hissoari, on
tie 2th OF Sc ytenber, 1883, "wiJully malitiously
and felouioul stab ana XIII one Seneca r. Digges"
II these worCs the only ones used by witch Q
charge of murder Lid in Indictment, !! would
be Clearly bad, well on account VI the omission o.
the allegation that the act done OF malice afore!
thought, Of the further omission OF the Allegation
that the ri.oner bad murdered the said Dgges. In
IL is necessary 20 state that the act by which the
death WAS occsoned done feloniOuely, and esPec
ally that il done OF malice GtoJehoRSh, which
tie eaies ehaacte istic OF the chine Of murder and
IL must also be stated that the prisoner murdered the
licensed" IL is still Lecessary under our ow1
statute Con- Acts, - Vie. cap ~ sec. - In an
iuGiltment for murder, TO state that the prisonei
| did felouiously, willfLhy and OF his malice afore
| thought sill and murder the deceased" II Is not
however, as general rule necessary in Warrant q
commitment 10 charge the otense with the same GER
tainty ID in Indictment and where II saneientiy
appears from the warrant and depOIons that felony
has been committed the Court though toe warrant ot
defective, II the oiense be one COMMITTED against lh
Queens peace, VIII recomuit the prisoner under Z
warrant of their own. Bat in these cases felony
must be clearly shown To have been committed; II that
is not the case, tue prisoner VIII be enlltied 70
baed or discharged. Now here, far tho right 10
arrre,t the prisoner is concerned, 1t ought clearly 70
appear that he is charged with MURDER for If charged
with lees oiiepse, though that be felony
which is not within the treaty, he cannot be
detained. Ii tue charge is not clearly one OF
murder and it is doubtful If mansllughter or
murder is charged, then l take IL the general
rule must prevail that that inteTpretatll IN must
be given which is most 10 favor oil the loerty %
toe accused If it had been charged against the prio
ner that did wllliuly ana ielouiously stab and XII
Seneca T. Z. Digges, this would only be charge OF
mansaughter, and the prisoner without doubt "olid
be dis harged. Does, then, the Introducing te wore
,naLcf0,sis into the charge show that the prisoner
charged with the crime of murderi Two essential IN
gradients still wanting 10 make the charge clearly
hat ot murder, viz: That the malice shoald haye
been aoeethought, and the killing should have oeen
alleged 10 be murder The general deuiiIon VI NAM
slaug litter being The feoniols killing Of aIo'her wh
out mali e. expressed Piled, it would seem thIt
the slega ion that the prisoner did manlousiy say
and Kill Digges would afford a strong arBuneh. 'ua.
the charge Was not one Of msnslaughter. but Tue
omi,sion 10 charge the malice as aiorethought may
Ina the same way be urged 10 support the propoeinop
that the charge is not for murder, when y