The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1886-02-08
SUPREME COURT.
The Mccarthy ExtraditiOn Case Ar
Eued Before the Court in BancO.

On Friday Mr.. w. Austin Whiting,
counsel for ]. w. Mccarthy, filed the fol-
lowing points in the Supreme Court on the
writ of habeas corpus:
l. That the State of California is not
a sovereign Power, and therefore this Gov
eminent cannot recognize its demand for
petitioners extradition.
2 Our treaty and intercourse is all with
the United States, and no person can or
should be delivered up to the officers of any
of its component parts unless the demand
therefore be made by the Government of
the United States at Washington.
3. The papers upon which the demand is
made are in themselves insufficient to war
rant a delivery upon a demand from Wash
ington and a fortiori from California, in
this that the paper purported to be bench
warrant is not issued under the seal of the
Superior Court of the city and county OF
San Francisco, and is therefore void there
and everywhere.
f. That the crime of embezzlement is not
one mentioned in the treaty, and even ii
the demand were made by the Government
of the United States this Government
should not give up petitioner because the
maxim "enumeratio unuis est exclusio
alterius" applies to treaty.
5. That there is no evidence to warrant
his arrest and delivery under our law.
6. That there is no evidence that he is q
fugitive from justice, and therefore he
should not be delivered up, as only fugitives
from justice can be so delivered.
Z. That this Government can only de-
liver up petitioner to the properly author
lied agent of the United States of America
and Joseph Bee, who is named in the war
rant, has no authority whatever from thai
Government
8. The Court may, on habeas corpus
inquire into the exercise of Executive dis
s. Grft h96y When the right OF personal Liberty
9. This Government is not observing
due respect to the United States when i
treats one of the States in all respects a!
| though it were a sovereign Power.
10. From the warrant of arrest and tn,
affidavit of the Attorney General, it APP
pears that the crime alleged to have beer
committed by John w. Mccarthy, fo
which he is sought to be extradited, is tina
of "embezzlement" That embezzlemen
committed in foreign country, viz: tn,
United States, is not an Qffense or crime TO
which John w. Mccarthy can be extra
| dited
IL. That the demand for extradition i:
made through the Governor of the State o
| California. That there is no authority il
law for said Governor to make this de
mand.
On Saturday last at IL O'Clock a. m.
this case was argued at chambers befOr
| Judd, c. j., McCnlly, j., and Preston, J
H. B. MS Commissioner Major Wode
house and Judge Stoney of San Francisc,
were present to hear the proceedings
which lasted over three hours.
Mr.. Whiting, counsel for Mccarthy, ar
| gued the case at length citing numerou
authorities in support of his position. Hi
| client was not a fugitive from justice. H
was entitled under the laws of California t.
be absent from the State for sixty days
| without leave of absence, after which pc
Rod his Office would be declared vacan
unless he returned. Proceedings had beer
| instituted against him after he had left tn
| State, but he had no knowledge of the fac
until his arrest under this request from tn
Governor of the State of California. H
could not, therefore, be a refugee from
| justice. If he had fled after an indictmen
had been found against him, the cas-
would have been different. There wa.
| nothing to show that he did not contem
plate returning within the sixty days of alb
sence authorized by the law of California
Furthermore, the request for his extradi
ton was defective. 1t came from the Gov
ernor of California. But the State of Cali
fornia was not known among sovereign
Powers. 1t was an integral part of the
United States, a commonwealth of the fed
Grafton of States known among nations a.
the United States of America, and as such
was expressly prohibited by the Fedora
Constitution from making any compact, Of
having any direct official intercourse with
any foreign Power. The National Govern
ment washington guarded this right most
jealously III its intercourse with foreign
Powers. Not only did the request for ex-
tradition come from all incompetent au-
thority, but the officer who was delegated
to receive Mccarthy from the authorities
of this Kingdom had no authority from the
Government of the United States. He was
a police officer of the city and county of
San Francisco, and even in his own State
he had no police authority in u neighbor-
ing county. Then, again, the offense for
which Mccarthy was sought to be extra
dited was not enumerated in the Treaty of
1850 between the Hawaiian Kingdom and
the United States. He argued that where
n t-aafv ayisteJ fbatUaau two Sovarai0D
Powers, STIMULATING for the mutual surren-
der of criminals, they could not go outside
the treaty, and cited numerous authorities
in point. The comfy of nations did not
operate where specific treaty agreement
existed, although the contrary had been