The Hawaiian gazette., 1886-02-16


such ftSitivcS and His MajeSty's Govern
nent having exercised its discretion by
the Minister Of Foreign Affairs, issuing
his warrant for the surrender II the peti
toner. it i not within our province 30 N,
view the exercise Of such discretion, except
- FAR that we must see there is proper
legal baSiS 10 sanction the act Of the Mn
iSter, Snd this brings Us to the e0nSidera-
6on of the remainder Of the points urged
ON behalf q tho petitioner,
The reluiSition Is made by the Governor
% the State Of California Snd 1t Is con
teaded be has no power 10 make such
reQuiSiti0a by the Laws aud Constitution
Of the United States
However tins may he, and without bind
iu- the Court, to decide Is VIZ nov do, in
any case which may hereafter Come before
il, we hold. IN the case now before Us, that
the Minister Resident Of the United
States, having requested the intervention
of His MSjeSty'S Government, the grpund
taken for the petitioner Is not SuStainable,
With Inspect to the points touching the
want 0f evidence to warrant the arrest OF
the petitioner, we are Of opinion that II
the petitioner was charged with the crime
befOre & magistrate having power only 10
commit the accused for trial and to issue
his warrant for the arrest Of the accused
. Tor examination, the evidence would I'M
dOubtetily be insufficient 10 make even
ss-is1g f.stss case. and the petitioner would
be entitled to his discharge, But here an
indictment has been found by Grand
Jury. from which we must assume that
sufficient evidence WAS addUesd to war
rant the placing Of the petitioner upon
his trial
Article : Of our Constitution Us to the
right Of an accused to have witnesses
against hum produced face 10 face, OulyT
supplies 10 persons put upon their trial
upon Indictment before the Courts OF this
Kingdom
1t i enough that reasonable presump-
ton Of guilt Is apparent and the produc
ton Of an indictment found charging the
crime in sufficient. Spear, p. 29ll
With regard to the Sufieiency Of the
| bench Warrant. we think it would have
been more regular to have forwarded tue
original, but the copy Is certified by the
proper authority, and 1t purportS to be
issued under the seal Of the court, and We
think that the objections are not well
taken.
The only remaining point Is whether
the petitioner i i fugitive from justice,
The petitioner claims that 10y the law Of
the State of California Political Code
: S53l he Is entitled 10 be absent from the
State for sixty days, and that consequently
he l. 70 be treated. not As Il fugitive from
Justice. but Us person lawfully travelling
wherever be may please.
We cannot adopt this view. and We
think the authorities Of the State OF Cali
foruiu have repudisted such cunstrUlc
ton by taking the measures they have,
The affidavit of the officer entrusted with
{ the warrant for the arrest Of the petitioner
Is distinct and specific He says sought
for him al his last known place of resi-
dence and at his place Of business and IN
the market place and at the exchange, and
that he could not find said J W Mccarthy
and dspOneut dsposss and AYERS upon his
information and belief that the said J. W.
Mccarthy. has fed from justice II the
State Of California and taken refuge II
the Kingdom of Hawaii" We therefore
are Of opinion, 1t Is sufficiently proven
that the petitioner Is q fugitive from
justice
We therefore dismiss the petition and
remand the petitioner to the custody of
the Marshal Costs to be paid by the
petitioner
JuDD. c. i'm addition to the opinion
Of the Court L wish 10 say that Is the crime
charged against the prisoner, smbezzls-
ment Of public funds in i foreign country
Is not one of the crimes for which by the
Treaty between the United States and
this Kingdom his extraditIOn could be de
handed. the procedure TO obtain his sur
render Is not to be governed by the pro
visions Of the Treaty 1t i quite true that
if the surrender Of a fugitive should be
demanded sS of right under the Treaty,
this Governments would be justified IN re
tusln- to comply with 1t, unless the de
uani came from the Executive represent
Iu- the Sovereignty Of the foreign State
In the case before u tine request Of the
1 United States Minister that the prisoner
be SURRENDERED To the agent Of the State
Of California l. sufficient The liberty Of
residents IN this Kingdom Is fully pro
I tect5d by the statute law which requires o
judicial examination into the proof of
| crinlinaIity against them and Iudgmsnt
Is to It's sJIf1lcIenCy is Q prerequisite 10
| their being eztrudad from this Kingdom
T Ii 1t were not for this statute, and resi-
I dent Of this Kingdom was attempted to be
/ sent abroad 10 be tried for a crime not *
tradltabLs under Treaty, the act Of the
Executive II arrsstIug him and holding
him for surrender would De without law
I In such d case the Courts would be author
[ izad to interfere by Hsbeas Corpus
[ The policy Of this country as evidenced
l by the statute Of 1876, which authorized
/ the arrest Of an alien fugitive from Justice.
and his tender to the accredited represent
atlve Of the country TO which the fugitive
I belongs. though no demand Tor his sur
render be made. and the present statute
| passed II 1889. l. certainly against making
/ our shores the asylum for foreign Grimm
/ ais. Many Of the dICta quoted from cases
/ IN Courts Of the United States where the
| policy l. said To be against the surrender
/ u fUl-ItIves except under treaty CbLgs
| tons. would have 10 application here
/ N-CCLLE- THE eleven points made
10y the learned counsel for the petitioner
| cover everything that can be urged on
his behalf But II ny view he seriously
Ills l1-ehe1is tLe status Of the case
with References 10 Article NV Of the Amer
lean Treaty and with reference to treaty
stIpUIa1I01s generally
Il l. seen by the citations made N the
opinion Of the Court from the organic
I laws 5t LS4G. the first systematic laws Of
this Kingdom that fully and liberal
PROVISION was made against the cUutin--
ercv that the Island Kingdom might be
come resort for fr1-itIves from justice.
| Such might be arrested upon merely the
/ formal demand Of a resident foreign re-
T-ase1tative. OF further upon the mere
kIgEIsd-a that public proclamation had
been issued against fugitive and be
held II custody Of the authorities Until
surrendered to the rEpresentatIvs Of the
foreign government from whose iuTIsdIc-
tion Be had fed These statutes contain
10 provisions for Judicial examination Of
the crumbs for issTing q warrant The
order proceeds i1-11a,iiately from the exc
cutIve- Furthermore 50 careful was the
legislation Of thai tune that persons guilty
Of crime n other countries should not
=0i1urn here that II L provided that even
L the rgprssensz1ITz Of the foreign power
refuses to accept the surrender the Of
fender may be delivered Up for transport
ati0u- To any AIMED vessel Of his nation