The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-10-15

higher courts might not consent to review
the evidence on the latter point. they would
not hesitate to do so on the former. The
question Of what constitutes political
offense. in international law. is too large
to be allowed to rest finally on any de-
cision but that of the highest court.
Another point not yet referred to that
may be developed in this case is that, even
should the commissioner find adversely to
the defendant on every point and certify
his finding to the secretary of state, the
President may decline to surrender the
fugitive. The process of extradition is
curious one, for while the executive can
not act in any case until the courts have
passed upon it. and while he has no con-
troll over the action of the courts, the lat
ter cannot bind the action of the President
by their judgment. He may still exercise
his independent judgment as to whether
an extradition treaty applies TO a particular
case. He did SO in one case, and the Su-
preme Court sustained him on the ground
that it was an exercise of political power.
In the case of Supp alias vogt, the court
held that after commitment OF the ac-
cused for surrender. and even after his dis
charge on habeas corpus has been refused.
the President may lawfully decline to sur
render him, either on the ground that the
evidence is not sufficient to establish the
charge of criminality. In rendering this
decision the court said:
The statute gives no right Of appeal or re-
view to be exercised by any court or
judicial officer The finding of the COM
missioner and the testimony are not to be
certified TO any court or judge, but are to
be certified to the secretary of state, as an
executive officer representing the President
| in respect to extradition matters and in
| tercourse with foreign governments. After
| such certificate, finding the evidence sufti-
Gent and reporting the testimony, is made,
| the President may or may not order the
surrender.
| This does not mean that the President
may review the finding of the court as to
| the competence or weight OF testimony on
which the defendant was convicted, but
| that the decision rests with him whether the
| treaty applies to the particular case in
hand. In another case the Supreme Court
said:
Where there is legal evidence before the
commission to establish the charge, and
| that legal evidence is deemed by him suffi-
/ cient, no matter how many others may
| deem 1t insufficient, and he grants a war
| rant of commitment, that commitment
| must stand, and no judge has right to
| disregard it, or to render it Intellectual. In
| such case no one can revise the opinion
| of the commissioner but the President. The
/ President has the power If he should be
4 of opinion that the evidence taken before
| the commissioner on the hearing was not
| sufficient to sustain the charge, then 1t
| would be his duty to withhold a warrant
| Of extradition.
| Under these decisions it is doubtful
whether any court has a right to decide
| what constitutes a political offense. AS
Stunning that to be a political question its
decision belongs properly to the President
1t may be that the most interesting phase
of the Lynchehaun case is yet to come