The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1886-02-10

In the case before Us the request OF the
United States Minister that the prisoner be
surrendered TO the agent OF the State OF
California is sufficient. The liberty of resi-
dents in this Kingdom is fully protected by
the statute law, which requires 4 judicial
examination into the proof OF criminality
against them, and Judgment as TO its
Suticiencv as prerequisite to their being
extruded from this Kingdom. If il were
not for this statute, and a resident of this
Kingdom were attempted TO be sent abroad
to be tried for a crime not extraditable
under treaty, the act of the Executive in
arresting and holding him for surrender
would be without law. In such case the
Courts would be authorized TO interfere by
habeas corpus.
The policy of this country, as evidenced
by the statute of 1916, which authorizes
the arrest of an alien fugitive from justice
and his tender TO the accredited representa-
tive Of the country to which the fugitive
| belongs. though a demand for his surrender
be made, and the present statute, passed in
1859. is certainly against making our shores
the ASYLUM for foreign criminals. Many
of the dicta quoted from cases in Courts of
the United States, where the policy is said
to be against the surrender of fugitives ex-
cept under treaty obligations, would have
no application here.
CoNCURRING OPINION BY JUSTICE GULLY.
Associate Justice McCuny followed with
another concurring opinion. He said The
eleven points made by the learned counsel
for the petitioner cover everything that
can be urged on his behalf But IN my
view he seriously Inexperienced the
status of the case with reference TO Article
XIV of the American treaty, and with ref
erence to treaty stipulations generally. III
is seen by the citations made in the opinion
of the Court from the organic laws OF 1916
the first systematic laws of this Kingdom,
that full and liberal provision was made
against the contingency that this island
! Kingdom might become resort for fugl-
tives from Justice. Such might be arrested
upon merely the formal demand OF resi-
dent foreign representative; or, further
upon the mere knowledge that public proc
lamation had been issued against fugl-
tive, and be held III custody of the author
tiles until surrendered to the representative
CT the foreign Government from whose
Jurisdiction he had fed. These statutes
contain no provisions for judicial eXamlna-
ton of the grounds for issuing warrant
The order proceeds Immediately from the
executive Furthermore, SO careful was
the legislation of that time that persons
guilty of crime in other countries should
not sojourn here, that it is provided that
even if the representative of the foreign
Power refuses to accept the surrender, the
offender may be delivered up for transpor-
Al Ofh - no
These provisions of law were made prior
to any treaty stipulations concerning eX-
tradition, although treaties recognizing the
sovereignty and civilization of the King
dom had been made with France and
Great Britain The statutes of 1916 being
the law of the Kingdom, the treaty with
the United States, embracing Article XIV,
providing for extradition, was ratified IN
August, 1850. There are obvious reasons
why the treaty should be narrower IN It's
terms than the Hawaiian statute. 1t was
of reciprocal obligation, binding the United
States to restore like offenders upon like
terms to the Hawaiian Government. 1t Is
a universal rule in eXtradition treaties to
specify the extraditable otfenses. What Is
agreed upon becomes obligatory, and the
: claim is of right, not depending upon in
ternational comfy nor upon the statutes
of the State upon which the demand is
made. The United States could have en-
tered into no treaty giving extradition IN
the broad terms Of the Hawaiian statute OF
1916, while there was very good reasons OF
policy for this Kingdom to offer the
, statute to the Powers of the world, and
there could be no implication that the
American treaty curtailed the effect of 1t
+ bv specifying the offense for which the
; Tinted States would extradite to Hawaii
and vice versa.
In this state of law and treaty the Civil
: Code repeating and superseding the Acts OF
= 1876 was passed May, 1859. Section 449
, specifies no offenses. ga crime" is the
: only designation of the subject on which
: the statute moves. The mode of proceed
= ing only is changed. There is no appear
I ance of modification due to the American
treaty, which had been in operation nearly
ten wears. The wise policy of maintaining
4 statute which would surrender to the
= Justice of foreign Powers wider class OF
offenders than was stipulated by treaty APP
= nears to have still obtained Enacted after
u, the treaty, it is independent OF it, and
! L see no IPdSOH W AlOIh llAebS NAAS ~
abridges the law This view dispOses of one
series of the petitioners objections.
As to the form of the demand, undoubt
edIv the State of California cannot main
y tain diplomatic relations with this or any
= other Power, unless, which l am not in
: formed about, she is included among the
States which the Republic of Mexico by
> treaty with the United States, permits tC
: make extradition demands directly
= upon her. But here the United States
Minister adopts and presents this request
which is not a demand-only treaty stipu
, lations being demandable-that this Gov
eminent will put in operation its owl
:. statute In this view it seems to me moth
g ing more is needed; indeed, the statute re
! quires only complaint made under oath
before any Magistrate, by whomsoeye
= may be credible, and have a proper rela
! ton to the case to put it in motion.
:. WHY could not officer Bee, without re
quest of the Governor of California anC
:, without the request of the United State
- Minister, have demanded a warrant for tn
:, apprehension? These requests, the on
% and other, are highly influential, but
do not perceive that they are essential Il
the operation of the statute. The authorit!
% of officer Bee to receive him withou