Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1879-01-17
THE FRANK-BURKE CASE.
A Correspondent Takes Issue With Go,
Davis and Makes Strong Points.

To the Editor of the Globe.
DEAR SIR: In your paper of to-day you refer
to an article upon the Burke Frank matter,
published in the p. p. of yesterday. as an
article of ''merit"-a good one, and one that
Gov. Davis should receive credit for" If the
Governor actually wrote the article referred to-,
have the misfortune to disagree with him
upon some of the points suggested, to.wit:
First-I deny that the judgment or decision
of the probate court of Wisconsin by which
Frank was released is Of any force or validity
whatever either IN or out of the State OF Wis
consin. The constitution aud laws of the United
States by implication, if not otherwise au-
thorized the States of Illinois and Minnesota
exclusively to attend to MIR. Franks case, AID
this authority gives, as incident to that bust
ness, right of transit through the State of
Wisconsin. or any other State, necessarily in
tervening. The Wisconsin court had the right,
probably, to issue the writ of habeas corpus,
and to compel Burke to appear before
the court and exhibit his authority.
But the moment that it is shown to the court
that the prisoner is held under the authority of
the United States, the court should have at
once dismissed the proceedings and remanded
the prisoner to the custody of Burke. And in
neglecting to do so and in retaining the case
for further proceeding, and final decision and
release, the court acted without Jurisdiction,
and all subsequent proceedings were utterly
void and without legal effect for any purpose
either in or out of Wisconsin. This principle
has been repeatedly affirmed by the supreme
court of the United States and notably so in
the case Sherman Booth, which was a case
where Booth was held in custody by the United
States marshal of Wisconsin under process is
suing from the United States circuit court, and
the supreme court of Wisconsin released him
(Booth) upon habeas corpus, from which the
case went up to the supreme court of the
United States, and the action of the Wisconsin
court was reversed and the doctrine above men
toned was there established, and has since
been adhered to without question from any
source, until Burke tres passed on the royal do
main of Wisconsin judge of probate, and
then and not till then was the supreme court of
the United States taught a lesson of their ter
rible error in the Booth case. I cannot refer
to the volume of United States reports contain
ing the Booth case, as it is not in my library.
Second-But if it were otherwise, and, as
claimed by the author of the article which you
attribute to Gov. D., can an officer acting I'M
der process, and in good faith, be guilty of
crime simply and solely because he obeys that
process? Certainly, no principle of law is bet
ter settled, than that he cannot; indeed, all of
the late authorities now hold that an officer is
fully protected by his process in civil cases, if
it is valid upon its face, but if it is in fact in
valid on its face, and not known to be so by
the officer serving it, he is only liable to civil
action. To claim that the officer in good faith
serving process valid on it's face commits a
crime is simply ridiculous.
As to whether the affidavit charging the
crime against Frank was or was not sufficiently
definite upon which to base requisition to the
Governor of this State, was a matter upon
which the Governors of the two States were the
exclusive judges, and they in doing the bust
ness were under no obligations to consult the
probate functionaries intervening between St.
Paul and Chicago; nor were they legally liable
to supervision by any of the courts of any
State, except of the two that were engaged in
the transaction, or of the United States courts.
Why! it cannot be for a moment tolerated that
Burke has got to be overhauled by every con.
stable, justice of the peace, judge of probate
and sheriff between st. Paul and Chicago, in
wouldn't get to Chicago with his prisoner until
after the second advent if he were to be an
noyed in such manner. In other words, the
extradition laws Of the United States
would be practically annulled. If the
first Judge of probate refused to re-
lease the prisoner, the next one might
do SO, and then, according to the meritorious
argument, for which you say Gov. Davis
should have credit, there would be two, or per-
haps dozen, final and conclusive judgments
in opposite directions, all of which would be
entitled to "full faith and credit all over the
United States; and here is where the very point
in the decision of the United States supreme
court In BOOTH case comes in. When court
is informed that the prisoner is held under
process over which it has no CONTROL the law
then deprives it of the right to proceed to
due, by declaring that if made it shall be void,
and entitled to no faith or credit anywhere.
ST. PAUL, Jan. 49, 1879.
ANXIOUS CUs1A.