The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1886-02-10
The Law and Policy of the Kingdom
on ExGradIIiOm SuccImeIIy
Stated - Mccarthy
Must Go.

supreme y
day, February 9th. Present, Chief Justice
Judd, and Associate Justices McCully and
Preston. The business before the Court
was to rule upon the Mccarthy habeas
corpus case, which had been argued before
it on Saturday last. The Attorney Gen
eral and Major Rosa were present
representing the Minister of Foreign
Affairs; Mr. w. A. Whiting, counsel for
Mccarthy, was also in attendance. His
Excellency Governor Dominis and Major
WodehOuse, British Commissioner, to-
gether with several members of the bar
and citizens, were in Court, apparently in
terested in the proceedings.
The Chief Justice intimated that Justice
Preston would read the finding of the
Court in the Mccarthy extradition case.
BY THE COURT.
Justice Preston recited the various
steps in the extradition proceedings against
John w. Mccarthy, and proceeded:
The first point we have to consider in
this case is, whether the Minister of For
eign Affairs has authority by law to issue
his warrant to surrender the prisoner. 1t
is disputed question among writers on
international law as to how far a sovereign
State is obliged to deliver up persons
charged with commission of crimes in q
foreign country. But it is nowhere held
that the Government of sovereign State
may not in its discretion deliver up such
| fugitives from justice on requisition made
by friendly Government.
| If there be a treaty, OF course the con-
tracing States are bound to deliver up per-
| sons accused of the commission of crimes
mentioned in the treaty, but it does not, in
our opinion, follow that States are pre-
Guided from surrendering persons accused
of other crimes than those specified. The
| treaty between this Government and the
| United States was ratified in August, 1850,
| and by it the contracting Powers mutually
agreed to surrender, upon official requisi-
| ton, to the authorities of each, "all persons
who, being charged with the crimes OF
murder, piracy, arson, robbery, forgery or
the utterance of forged paper committed
within the jurisdiction of either shall be
found within the territories of the other. y
In the case of Arson Wing, the opinion Of
the Attorney General (Cushing), was cited
by counsel for the petitioner. The Attorney
General says: 1T is the settled polite doc
trine of the United States that, lndepen
IDENTIFY of special compact, no State is
bound to deliver up fugitives from
Justice of another State. 1t is true any
State may, in its own discretion, do this n;
a matter of international comfy toward:
the foreign State, but all such discretion i:
of inconvenient exercise in constitutional
republic, organized as is the Fedora
! | ~. hoo
given by other Attorneys General of tn
United States and there is no doubt tn
practice of the Governments of the Unitet
States and of Great Britain has in genera
been in accordance with the policy states
by Mr.. Cushing. But in the case of Ar
quelles the Government of the Unitet
States did seize and surrender to the Span
ish Government, with which there wa
no extradition treaty, the person accuses
; of crime. 1t is true Mr.. Spear (page 16
says it was nothing but legal kidnapping,
: but the Government exercised its discre
!, ton.
But the case under consideration stands
; as we think, upon higher grounds thai
! any previously mentioned. The Legisla
5 ture of this Kingdom, by one of its frs
laws after the recognition of its indepen
5 dence and sovereign rights, adopted tn
, principle, that it is the duty of the State t
= surrender fugitives from justice. BY articl
J, IA, section l, of the laws of Kamehameh
Z III-"An Act TO organize the executive de
partments of the Hawaiian Islands"-it
enacted: The Governors, upon receivin
information from the Minister of the In
terror that any person, an alien fieein
e from the justice of a foreign country on aC
count of crime committed therein, is lurB
Z ing in their respective islands, evading jus
. tice. and that formal demand has bee
:. made for his surrender by the represents
# tive of such foreign country, or in case n
demand has been made, that proclama
ton has been issued abroad against sue
y fugitive, and a reward offered for his az
prehension and surrender, shall hay
power, and it shall be their duty, to issu
warrant for his or her apprehension.
By subsequent part of the same Ac
relating to the Office of the Minister
Foreign Relations, it is enacted: "Tt
- Minister of Foreign Relations, upon info
nation in writing from the Minister of tt
Interior, that an alien fugitive from justit
has been arrested within the jurisdiction
=, this Kingdom, and is in custody of Il
n. Marshal, pursuant to section 8, article II
m chapter of the first part of the Act, sha
III give immediate notice of such arrest
the accredited representative of the matte
gs to which said fugitive belonged. if there
u, one near this Government; and he sha
through such representative, tender SUI
in fugitive to the nation whose subject or CT
IN zen he is, claiming at the same time Il
T, costs and expenses incurred by his apr