The New York herald., 1876-09-06
Careful Analysis of the Federal
Extradition Law.
The Governors Action Subject to Review
by the Courts.
The Relative Claims OF States on FugitveS
from Justice.
INVESTIGATING PENSION FRAUDS,

A decision OF considerable interest TO the general
public as well TO the legal profession was rendered
by Judge wesibrook, in Chambers OF the Supreme
Court, yesterday The case adJudicaied upon may be
briefly stated follows:-Benjamin W. Briscoe was
member OF a firm in Fulton county, Georgia. He
North and obtained quarty OF goods from New York
merchants, 1t would now appear, upon false pre-
enccs Two OF his creditors In this city had him ar
rested in civil suits 10 recover, granted by
Judges Donohuo and westbrook respectively Mean
lime Briscoe and his partners were indicted by the
Grand Jury Fulton county Georgia, for fraudulent
or property entrusted TO them by Virginia
arm to sell commission. On requisition OF the Gov
ernor OF Georgia Governor Tden granted a warrant OF
extradition the Sheriff OF Fulton county had tho
prisoner brought before Judge Westbrook on habeas
corpus. 10 have him discharged from civil arrest and
turned over to the authorities Of Georgia.
In giving his decision Judge westbrook says
From the TO the writ of habeas corpus it ap-
pears that Briscoe is IN custody by virtue OF civil pro-
cess from "a court legally constituted and he there
foro ''can only bc discharged" upon this proceeding
for one OF the causes specified In the statute % s.,
9th edition, page SIS. section 56l reference that
statute will show that for no such cause rs here pre-
senied has the Court power to discharge Brscoe from
the custody OF the Sheriff, which must bo done before
he delivered TO the custody or the agent Of the
State Of Georgia With these plain provisions in the
Habeas Corpus act limiting the power OF the Court
when party is detained by civil process IL rs useless
TO examine whether The writ Is mainainable
deliver party from one Imprisonment only transfer
him TO another. II is enough that the Statute has
specified the In which party detained. Brscoe
Is be discharged. Unless the case comes within
those provisions the prisoner cannot be released and
for this reason alone the VIII must be dismissed
Judge westbrook then goes to discuss the
power Of the Governor to issue his for the
rest and extradIion OF fugitive from tho justice and
Jurisdiction of another State except by proceedings
shans M a Ss @ Of this an
this point no says:As the Governor Of this Stale has
the case before Us exercised the power conferred
upon him by tho federal constitution and the act OF
Congress, the conclusion from tho foregoing cases
manicsty is that the act which he assumed to per-
form is not void tor want OF power; but on the con-
trary in proper both the constitution and
law OF Congress imposed upon him grave duty which
every moral reason required him to perform In ex
mining points sed by counsel In opposition
Brscoes discharge the Judge notices that made the
part OF the State Of Georgia. that AS the power and
auty OF exradtion is conferred upon the Governor OF
! State when the proprety and right OF ex-
tradition have been determined by HIM his judgment
be reviewed by the judiciary" This point
urged upon the present application has before
made by the Governor himself in the matter OF Nathan
uman Ia these words, ~ deny with great respect the
right of the Court said writ OF certiorar
me, or 10 rovew directly my action in dis
charging the duty imposed upon me by the Consultation
Of the United States with to the surrender of
lugitves from justice" Judge Westbrook, IN discuss
Ing tho point says:-If the position now taken had
been Judiciaiy overthrown shall frequently
show has been, while intending disrespect the
Governor of this State. should be constrained o
assert the power duty the examine and
inquire into OF tho detention OF prisoner,
though the warrant which detains him is issued
BY the Governor OF the state. he Claims under
power conferred by the pationai law He goes on 10
show that the writ o nabeas corpus OF ccrtorari
common law writ, which every man is entitled to
who restrained of.his liberty upon any pretenco
whatever, that the Court may inquire the JUS
OF his confinement; the Habeas Corpus does
exclude from the benefits OF habeas corpus person
sought oc exraditcd by the mandate OF the Cover
nor; follows that the Court has the power TO Enquire
INTO tie oil such Imprisonment or restraint The
Executive iniahble. lie may and issue his
when hc ought not TO issue IT, and II the ct
has right 10 prosecute hs writ, but must sub
NIT TO the Executive order, then II is clear that
We have oiicer State organized
under republican form OF government who
can hold at pleasure and remove at his Will
beyond the jurisdiction OF the state every citizen, and
whose action cannot be questioned or reviewed. This
is simply tyranny ana the statement the proposition
would. certain. cause the present Executive
well as the Court 10 reject II as unsound Alter
viewing this point at considerable length Judge West
brook comes 10 the conclusion mat although the Court
cannot interfere with the Executive discretion Il SIN
has the power to review that discretion. He then
the papers upon which the Executive warrant
Issued copy of Briscoe's indictment Tor fraudulent
conversion property having beer produced before
The Governor required by the OF 1893 this was
Of itscl! evidence OF tho right TO demand The fugitive
ana the Court holds that that was sufficient evidence
In itselI ON which to ground demand OF that
He then proceeds TO discuss whether such demand
should be granted, the papers being IN themselves su
eicnt warrant requlsltion, rs he comedies. lie
SAYS .W hen party is detained state because
It's have claims upon HIM, can he be extradied to
another State before the justice OF the Siaic which
holds him has FIRST been salsncdY In other words
Is the right OF ne state demanding tho alleged
fugitive order that he may be compelled answer
It's laws superior TO that which holds him
lar purposoy II il Is then State comfy is above
State scpreservauon, and the obligation OF 10
his fellows is superior 10 that which he him.
scli" There can bc no middle ground, he says,
upon the question before Ii tue United States
consultation means that the surrender must be made
though which holds the fugitive has demands
upon him, IL must mean his delivery every re-
ylrdcss OF the rights OF the state IN which he s H.
Ihen he is detained for murder within It's jursdc-
lion he must be surrendered TO answer simple charge
Of petty larceny IN another state This case
but 10 illustrate tho danger oil the position taken
No discretion committed TO the Executive to weigh
he force OF the demand and the OF detention
ing he may judge the gravity OF the claim may DO
greater less in one State than another If the
eral constitution places the rights of the State
making the demand above those OF that upon
which IL made must be obeycd In
every case: but II, the other hand the
State wGch holds him IS only bound surrender him
where lis own laws do not Gctan him. then case
ran he be delivered until the justice these laws have
been satisfied. II the question had been decided
and arguing IRON the duty which every State owes 10
Itself and TO Its own citizens, which must a rule OF
conduct cr lis own guidance be paramount the duty
which II owes 10 another and Its ciuzons, VIC sloud
bold that the national constitution only imposes the
tuty OF surrender when the laws o the state upon
Ehich the demand Is made have no claims lpon the
,erson OF The alleged fugitive Alter citing the case of
oorr, Howard los. HIS Honor concludes as follows
"Wth no intentional personal ds ospect To the cnio.
executive OF ihs state the remedy sought by this pro-
secding Is Withheld becausc-Ftrst tho provisions OF
The habcas corpus act do authorize the surrender
person held under civil process for any such cause
~ has been urged before Us, second. Briscoe being
detained under The laws OF this State cannot be dis
charged until the demands OF these laws have been
fuliy satshed and discharged Tho writ of nabeas
corpus Is dismissed and the prisoner reaneed to the
custody Of iae Sheriff"
PENSION FRAUDS.