The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1902-07-10
Great Legal Contest viii Now
Take on a Diplomatic
Phase,
U, S, REPRESENTATIVESCAN
DO NOTHING IN CANADA
Influence of Counsel for Defendants
Too Great to Extrsdite Prisoners
and State Department Takes
the Matter Up.

Washington, July 9.-The extraordinary
case of Messrs. Benjamin d. Green and
John F. Gaynor. whose removal from
Canada to the state of Georgia for trial
on charges of misappropriating and en-
bezzlement of over two million dollars
in connection with river and harbor i'm
provements at Savannah, Ca, has been
sought for some time in the United States
| will take on a diplomatic phase In
few days, when Secretary Hay COM
municates to the British government the
opinion of the officials of our department
of justice that the Canadian authorities
are pursuing an extraordinary and un-
warranted course in the case. The de-
lays and embarrassments in the extra
dition proceedings resulted In Mr.. Marion
Erwin, special assistant to the Attorney
General, who has been In active charge
of the extradition proceedings for the
United States transmitting to the At
torney General under date Of Montreal.
July 7, special report on the case In
which he calls attention to the fact that
the legal representatives Of Messrs.
Green and Gaynor are closely connected
through professional and family ties with
the Canadian officials to whom this gov
ernment must look for extradition of
the men whose custody it seeks.
Mr.. Erwin in his report says that prior
to instituting the extradition proceed
ings he was put on notice that the fugi-
tives had taken refuge at Quebec for
the purpose of resisting extradition and
that they had employed their coun-
sci the firms of lawyers to which be-
longed the highest officials of the provin-
cial and dominion governments
He says that he was thus ''precluded
by the position taken by them from con-
ferring with the law officers of the
crown" He therefore retained two at
torneys of the Montreal and Canadian
bar who have ably assisted him.
The Extradition Act
The report then calls attention to this
provision of the Canadian extradition
act.
whenever this act applies judge
may issue his warrant for the apprehen-
sion of a fugitive or foreign warrant
of arrest or information or complaint
laid before him and on such evidence or
after such proceedings as in his opinion
would subject the provisions OF this act
to justify issue of his warrant If the
crime of which the fugi we is accused or
alleged to have been convicted had been
committed In Canada
Citation is made of the extradition
treaty between the United States and
Great Britain. and 1t is shown that 1t
provides for extradition for the offenses
of embezzlement fraud receiving stolen
moneys or goods, or property, or obtain
ing the same under false pretenses, or
for participation In these crimes, provid-
cd such participation is punishable by
the laws of both countries.
| Attention is then called to the fact that
Mr. Erwin made complaint on oath May
IA, 1902, before the Hon. Uric La Fon-
taine, one of the extradition commission
ers for the province of QueDec, resident
at Montreal, who is given jurisdiction
over the whole province OF Quebec.
charging Messrs Green and Gaynor with
having participated in the crimes of
fraud, embezzlement and obtaining
money under false pretenses, the com
plant setting out matters in detail, and
that such participation was punishable
by the laws of both countries.
Regularity of Service.
The report then directs attention to the
entire regularity of the service u the
writs arrests of Messrs. Green and Cay
nor and their demand for further examl-
nation. After this Judge Andrews at Que
were served at night on the jailer at
Montreal who held the men under the
extradition commissioners orders for
| further proceedings.
On what followed the report says:
without notice to the commissioners
or to the attorneys representing the Unit
| ed States In the proceeding. the Montreal
gaoler, who holds his appointment under
the provincial authirities, within a few
minutes after service of the writs upon
him conveyed the prisoners by special
train back to Quebec.
'1n view of the fact that there were
other judges at Montreal who exercise
habeas corpus powers and in such cases
the Canadian laws give judge In the
district of Quebec no authority to bring
a prisoner from Montreal on habeas
corpus inquiry, IL is not believed that the
gaoler at Montreal would have adopted
so extraordinary course without notice
to the parties ~ interest, except under
high official pressure. The attorneys az
that time appearing In the proceedings for
the fugitlves and moving to have that
done, embraced among Others the firm
of Fitzpatrick, Parent, T. Tadhereau,
Roya and Cannon of which firm the Hon.
Charles Fitzpatrick. minister Of justice
for the dominion of Canada Is a member.
"Of which firm the Hon. S. M. Parent,
prime minister for the Province OF Que
non, son of the deputy attorney general
for the Province of Quebec Is a member.
ALSO Mr. Honore Gervais. law partner
of Hon. Mr.. Archimbault. attorney gen.
eral for the Province of Quebec
Reviews Motion Of Counsel.
The report next reviews the motion Of
counsel for the United States to quash
the writs of habeas corpus and remand
the prisoners In order that the extradition
hearing might proceed and the fact thai
the evening before Justice Andrews was
to render his opinion the prisoners at
tempted to drop that proceeding on
claim that it was illegal and through
their counsel, Messrs. Fitzpatrick. Par
ent, Roya and Cannon have other writs
of habeas corpus issued to come before
Justice caron, pudge with concurrent
Jurisdiction with Justice Andrews, on
the ground that tehir custody by the
sheriff at Quebec was Illegal Atten.