Helena weekly herald., 1875-07-29

THE EXTRACTION TRIAL.
DECISION OF THE q. =. COMMISSION.
Err w. f.. CULLEN.
DISCHARGE of Defendants from Custody.
United States of America---District OF Mon
tana Territory-ss. In the matter OF the ex-
tradition of Thos. Hardwick, ct al.
1t is perhaps proper for the Commissioner
to say that in the investigation of this case,
and in the consideration which he has given
to the testimony, he has sought to deal impair
tally with the questions presented. 1t is due
not only to the rights Of American citizen
ship, but to proper respect for the Govern
ment making the demand for cxtradition in
this case, and entire good faith On the part Of
our Own Government in observing solemn
treaty st;pulations, that a patient and fair ex-
| animation of these cases should be had, aud
that the Commissioner, or Court, before whom
they are heard, should not be biased or in-
| tuenced by considerations not properly enter
ing into the controversy. That this case has
| been the subject of considerable newspaper
| comment, the entire good taste and propricty
Of which may well he questioned, is matter
to be regretted; but the Commissioner IS not
sensible that such comments have in any wise
influenced the conclusion which he has
reached.
The first question for our consideration is
as to the quantu1a and sufdciency Of the proof
TO be adduccd in matters of this kind. The
language Of the treaty under which these pro-
ceedings are had, and heextradition of these
defendants is claimed, is, ''Provided, That
this shall only be done upon such evidence of
criminality as, according to the laws of the
place where the fugitive or person SO charg-
ed shall be found, would justify his appre-
hcnsion or commitment for trial, if the crime
or offense had the.c been committed" Or
<linarily, it would be sufficient in this coun-
try, ii the proof before the examining magis-
trate showed that an offense had been COM
,nitted, and that there was reasonable or prob
able cause to believe the person charged had
committed the same, to warrant the holding
of such person to answer any indictment that
might be found against him. But the lam
gaage Of this treaty has received judicial
construction at the hands of the courts of this
country, of such weight and character as
would seem to require something more than
reasonable and probable cause to believe the
defendant guilty Of the crime alleged, to war
rant his being held in proceedings for extra
dition. Mr.. Justice Nelson, in &C parte kaine
(3d Blatch., c. c. r., p. 1O,) says: 1.-The
proof, in al! cases under treaty Of ext1adi-
ton, should be not only competent but full
and satisfactory that the offense charged has
been committed by the fugitive in the foreign
jurisdiction sufficiently SO to warrant q con-
viction in the judgment of the magistrate of
the otfense with which he is charged, If ST.
tiny aspo,s the final trial and hearing Of tie
case No magistrate should order q surren-
der short of such proof" The authority of
this decision is recognized by Mr. Abbott in
his treatise upon practice in the United States
courts, (see I'd Abb. Z. S. Practice, y. 206).
and is followed by Judges Woodruff and
Blatchford, tn re Mcdonnell. With refer
ence to this question Judge Woodruff says:
"a fugitive is not to be surrendered upon
slight grounds. There should be reasonable
evidence, reasonable cause to believe, and, in
| conformity with the case last referred to, we
might 60 further, perhaps, and say that there
should be such pgiaaG .tacie case made by the
proof as, being submitted to the jury, and
| being found by them to sustain the charge,
would make it the duty Of the court to sus-
tain the verdict" We conclude, then, that
| the defendants, in proceeding before
Commissioner for their extradition, are pro-
| tected by all those safeguards with which
they would be surrounded if upon their final
trial either before the courts of this country
| or those of Great Britain, except, perhaps,
! az to the means or instruments of proof.
| Passing now to the consideration OF the
offence with which these defendants stand
| charged, let us examine the nature of the
| offense, and the testimony adduced in support
of the complaint made in this case. The
complaint contains number OF counts, In
some of which these defendants are charged
with an assault with intent to commit mur-
der, and in others with having committed the
crime of murder upon certain Assinabolne
Indians, at Fort Farwell, near the Cyprus
Mountains, in the northwest territories in the
Dominion of Canada, on or about the first
day of May, A. D. 1873. Both of these Of
fenses are within the provisions Of the treaty,
and in both the same degree of malice afore-
| thought, of wilful premeditation, is necessary