The Hawaiian gazette., 1886-02-16

Enacted after tho treaty il Is independent
of II. and / SEQ no roSsen 10 held that tho
treaty shrSdges the law, This view dis
poses Of one series Of the petitioners oh
jecti0pS
As to the form Of the demand, I'm
doubteily tho State Of California cannot
maintain diplomatic relations, with tins
or any other foreign power, unless, which
am not informed about, she Is included
among the States which the Republic Of
Mexico by treaty with the United States
permits 10 make ONtradinon demands
directly upon her But here the United
States Minister adopts and presents this
request, which Is not demand, only
trpSty StipulatiOnS being domandable
that this government viii put in operation
its own statute In this view IL seems 90
mo nothing morc Is needed. Indeed the
statute reluireS only complaint made
under oath" before any magistrate by
whomSoeyer may b. credible and have q
proper relation 10 the ease. 10 put Il IN
motion. Query Why could not officer
Bee without the request ot the Governor
Of California and without the inquest OF
the United States Minister, have demanded
warrant for the apprehension. These
requests, the one and the other, are highly
influential but | do not perceive that they
are essential 10 the operation Of the Stat
ute The authority Of officer Bee 70 NJ
ceiye HIM without special authorization Is
however different thing frOm making
the complaint,
Now was the evidence Of erimina6ty
sufficient 10 sustain the charge Doubt
L. tv ~
Cs-pas Of the Suffciency Of evidence will
bo held by all the constitutional provisions
guaranteeing the rights Of personal liberty
and Of trial upon evidence Of witnesses
produced face TO face, both for the defense
and prosecution. which rights belong 10
all persons being for any time within our
jurisdiction.
Without referring to the authorities
given in the opinion Of the Court l cite
only the result expressed in Spears Law
Of EStradition, p 20, in these words The
general rule Of evidence adopted in the
extraditi0u treaties Of the United States Is,
that the charge Of Criminahty on which
the demand for delivery Is bslSed must be
supported by such evidence Is would
justify the apprehension and commitment
for trial Of the person accused, II the ri.
legged offeuse had been committed IN the
country on which the demand Is made,
This rule Is 70 treaties may be adopted for
action under our statute. We have before
Us in this ease evidence Of criminal pro
ceedingS commenced in the Court OF
California. An indictment h ; been
found by at least twelve grand jurors
acting upon sworn testimony. y
bench warrant has issued thereon Tor
his arrest, and h q service thereof
has been defeated only by the depart
ure Of the petitioner from the country.
The case has reached the stage Of prob
able cause and apprehension already IN
California. Evidence Of Criminaity" re
guired by Section 40 cannot be taken to
mean conviction of guilt Mr.. Mccarthy
Is not TO be- tried here. He Is wanted 70
be tried In California. The proofs offered
here satisfy NE that there Is no infringe
ment of personal right II rendering him
for such trial On the other hand II would
be unreasonable to require more There
Is q clear distinction between q mere
charge or accusation and commitment
or Indictment found If there were only
the inst. 1t would be proper to require
here evidence Of probable cause on which
q commitment for trial might be made
We are certified that this has already
been done. If our statute does not apply
to this case 1t Is not easy to see what 1t
was intended to accomplish
Regarding the jurisdiction of the Court
to inquire into the discretion of the Exec
utive in this proceeding it seems to me
that when we have determined that the Is
sue of the certificate To the Minister of
Foreign Affairs was well based on the
statute, We have done all that belongs to
Us Upon such certificate given We are
not to advise him to issue his warrant, and
certainly are not to advise him not TO issue
II