New-York tribune., 1876-09-06
THE COUNTS.

LIMITATIONS ON sTAFR EXECUTIVE ACTING UN-
DER NATIONAL DUTIEs-A FUGITIVE FROM JUS
TIcE DEMANDED IN GEORGIA, HELD TO ANSWER
A SUIT IN THIS STATE.
BENJAMIN +. BriscOe was demanded by the
State OF Georgia fugitive from justice and the Gov
of this State gave the ordinary warrant for his ex
tradition Meanwhile Briscoe had been arrested on civil
process and the sheriff OF this county declined 10 sur
render him extradtiou. The civil process In this
State Issued before the demand for exradition was
made by the Governor OF Georgia Brscoes indictment
in Georgia. fraudulent breach OF trust was earlier In
date than the order Of arrest The Georgia sheriff woo
was sent on demand Brscces surrender under these
circumstances procureda writ OF babeas corpus to OBJ
tam possession of Bscoe fo the sheriff OF this county,
that the prisoner might be taken to Georgia Tor trial
The argument the wit was heard by Judge west
brook who has delivered very full opinion on the I'M
portaut questions involved.
Judge westbro0k In this opinion states the facts and
dwos on import OF the questions involved Stat
ing the It's legal shape, he points ont that Bscoe
Is in CUSTODY by virtue of civil process from court
legally oonsntued" and only be discharged on Ger
tain grounds mentioned IN the statutes winch are IN
cluded the case presented For this reason alone tho
writ would have to he dismissed, but there are other
questions involved he Of interesting character
that their .fnation may he profitable question
raised by counsel for the sheriff was that under the con-
stitu;ion OF the United States requiring the surrender Dy
State OF fu yes from justice no power was gwen 10
Congress TO impose any duties state Governors, ana
therefore the act of 1898 unconstitutional and the
only right claim the prisoner was under the voluntary
action of tho State by tho State law OF
1899, which has not been complied with Judge
Westbrook thinks there might be something In that
point il it had often overruled BY the United
states Supreme Court As the Governor has ekcc"ten
the warrant judge westbrooks conclusion from these
cases IL the Governors act Ia not void Tor want o.
power but In proper he had grave duty which
nc was required perform. II was again urged that
after the Governor had Issued his warrant the c0ur had
no power review and Gov Tiidens words In tine Sa
than Ulman case wero cited: II deny with great ro
spect the right issue said writ Of cortiorar
TO Inc or review directly action In dscnargnR the
duty imposed upon by tho Constitution Of the United
States with respect the surrender of fngycs from
Justice" Judge westbrook declares that this position
has been judcially oycrthrown. He says:
The Executive is infaibe. lie may err and issue
citizen has rglt prosecute this writ, but must sub
NIT 70 The EXECUTIVE order iLcn !, Is eier mat W. lave
government who can hOd at pleasure ana remove NJ
hs will beyond the jurisdiction Of the State every e
and whose action cannot be qhesohcd OF feVeWeu'
This IL ampic tyranny, and the statement or ie opO-
sition would, certain cause the present Lxeou
tive as well court. to ec as entirely dlsOunj
Judge WcsibrOOk then cites at some length tbe JCao
Lawrence case decided by the Court OF Appeals the case
OF Manchester decided by California court and Helm
rchs ciso decided In the United states Courts, as sup
porting toso views. lie then examines the acts in ts
TO determine whether the oferse charged was oifmo
and the Georgia indictment sufficient proof that the prs
Oner liable 10 be tried for g. distinguishing u IN tins
last respect from the Joab Lawrence Tie remain
ing question. he continues, Is when party IS detained
in one State because the laws OF that state have Claims
upon him, such person be eXtraded ana taken 10
another s,ate before the justice Of the State which holds
him has Grst been satisieli On this point he says
that no discretion II committed to the LNso-
utiye 10 weigh the focoo of tho dcmand and the
cause Of deeBti tO award or withhold the order
ascordnc ~ he may adjrdge the gravity OF tho claim
upon the gtve t0 bo greater or less IA State tan
IN the other State which holds MIN is only bound 10
surrender when rs own laws do retain hm and In no
case lac DO delivered until the jsdoo OF Hose laws
has been satisfied Judge WosbrO1k holds that n the
question were entirely the latter Wow would si be
the correct one but he argues that & Is sustanei by
Dorl's c4se IN which such view held aud that II
was immatcrial whether the imprisonment DO under
civil or criminal process though DORIS case was not OK
acly similar In its circumstances That ease was de-
cidod By tho Supreme Court OF the United States.
case involving the identical qucsIon-InnnahS case
decided By Supreme Court OF KewJcfsey, he says,
nkcs the same yicw and p;l another case In the United
States Supreme Court tlscs similar ground Judge
Westbrook conclGdes as follows:
with these for our guidance II would In our
opinion be grossly improper for this court TO ad tue
executive warrant by the release Of the priSJncr.
We are clrnIiy OF the opinion tnt no law chHbcs uo
Governor Of State 20 abridge the legal remedies
which snors in It's courts pursuing against PARTY
aud that consequently 40 duiy Is Hhpostu upon tlo
eout to yacitt It's 0wn order OF arrest and aid the
Execative mandate with no intentional personal DIS.
fes sct 20 The Chief Magistrate OF the state ihc ronedy
sOucLt by tis proceeding Ia withheld because, hrst, TIE
uovisias Habcas Corpus act do not authorize the
person held undor civil procces COR any
guch cause as iGs been urged before u.s. aud second
Brscoe being detained under the laws OF this state,
cannot be discharged un; tho demands of these laws
| have been fully satisfied aud discharged.
The writ was dismissed and Inc prisoner rcnanded to
| the custody of the sheriff.
| CIVIL NOTES.