, 1866-11-16
rhe ReIease of nonahna.

Donahue, the man charged with the murder Of
Ferd. Patterson, has been released from custody
by order of Judge Dwinell, of the District Of
San Francisco. As a matter Of local interest, an
esteemed correspondent sends US copy of the
decision, which, we think our readers will Join
with US in regarding as the most singular dOcu>
ment that ever issued from court of justice.
The following are the authorities and arguments
given to sustain the decison:
In 1882 in the matter Of John L. Clark, 70
Wend., 2l21 who was arrested as a fugitive
from justice from Rhode Island, and brought
before the Supreme Court of New York. on
habeas corpus, Chief Justice Sawyer said tiBut
under our Federal Government this matter has
been regulated, and we are hot left to the lncer-
tainty arising from an inquiry in one State into
the particulars of an offence committed in an
other. The Constitution of the United States
provides that person charged with treason,
etc.,-quoting art. 6, Sec. 2, as above. Here,
then, is the law on the subject, positive regu-
lAtion, and tantamount to treaty stipulationi
and we are not to resort to the comfy of ma
tions for our guidance. Every person Who. is
charged with an an offence in another State,
shall be delivered up. II is not necessary to be
shown that such person is guilty. it is not nee
ess as under the comfy of nations, to examine
into the facts alleged against him constituting
the crime: it is sufficient that be is charged with
having committed crime. But hOW charged
The law of Congress has answered this question
as follows, quoting lst section Of the act Of
1913, above cited.
Chief Justice Nelson, (now Justice Of the Su-
preme Court of the United States in Jack VS.
Martin, IL Wen6., 3ll-a case before the Su-
preme Court OF New York, involving the guess
tion as to which was the paramount law in re-
ference to the surrender of fugitive slaves, the
third section of the act of Congress of 1893,
above quoted, or a provision ID the Revised
Statutes of that State on the same subject
| says "The counsel for the plaintiff in error
contends the mode of making the claim, and of
delivering up the fugitive; is subject exclusive
ly of State regulation, with which Congress had
no right to interfere; and upon this view the
constitutonality of the law of this State is
sought to be sustained. Iapprehend it can be
defended on no other ground than the one taken:
for if the power of the State to legslate on this
subject is only concurrent with Congress, after
the exercise Of it by that body in enacting the
law of 1893, it would be incompetent for the
State authorities to act in the matter. That law
must be paramount, from necessity, to avoid the
confusion of adverse and conflicting legislation.
So far as the States are concerned, the power,
when thus exercised; is then exbausted; and
though they might have desired different leg
.
qualify, or in any manner alter il. This rule as
understand it, is settled by authority in regard
to the construction of concurrent powers of
legislation in the States, and which is conceded
to be binding upon the State tribunals on cues
tons arising under the Constitution and laws of
the United States. This principle is undoubt-
e1ly essential to peace and harmony in the ac>
tlon of the two Governments. If the power of
each in its sphere was exclusive throughout,
there would be no reason or necessity for its
application, for then there could be collision
without usurpation. But, as there is large
mass of concurrent powers belonging to each
10 the arrangement of the system, confusion
would have inevitably followed their operatious IS
if one of them had not been made paramount.
il was therefore provided '-(Iere the learned
! jurist quotes Article VII Sec 80, of the Federal
Constitution, above set forth, and continues:
| "Whereas Congress can lawfully act unde.
| the Constitution, and do act, Their Judgment and
discretion are supreme over the subject under
this provisions; and in the exercise of concur
rent powers the States must ne,ssarily be sub
ordinate! Neither can the Suites exercise a
concurrent power in conjunction with Congress
| Congress without their express permission; for
the right to do so would be in derogation of
their paramount authority and lead to all the
evil it was destined to avoid. though the act
| of the State might be in direct repugnance to
the legislation of Congress- it does not follow it
is not so in legal effect; for it has been correctly
said that the will of Congress may be discovered
as well as by what they have not declared as by
what they have expressed that two distinct
wills cannot at the same time be exercised in
relation to the same snbjcct egrctually, and at
/ tue srrno tl:%nv Ue compatible with each other
If they correspond in every respect, then the lat
ter is idle and imperative; if they differ, they
must, in the nature of things, oppose each other
so far as they differ"
Fhe same principles are sustained by the SuS
preme Court of the United States. (Prigg. Vs.
The Commonwealth of Penn syvania, l6 Pc
tiers, 539,) in which Judge Storey wrote the
principal decision; (Sturges Us. Crowninshield,
Wheaton, 1872, in an opinion BY Chief Justice
Marshall Ogden Us. Saunders, IL To-, 2l3,
| Boyle rs Zacharie, 6 Peters, 34S.
The Federal Constitution having given Con-
gress the erelusiee power to legislate regarding
the surrender of fugitives from Justice, that
power hdUiHg been exercised by Congress-, it fol-
lows that our statute, under witch the Police
Court acted, is imperative and void, and the
petitioner is illegally held by the commitment
aud proceedings hereunder.
Therefore the petitioner, Thomis Donahue, is
discharged from custody.
DwIxELLE, District Judge.