The New York Herald Newspaper, February 1, 1853, Page 2

steroes where the preceeding is ancillary to the determination of a rit | jail om » warrant issued by woharpe of teagan. Olvet Justice | parte Foniae Walling @ Peters ®s y the oe of Halwa and Swartwout, habeas cor- ewarted on the sanm peti wa osorded in Hamilton's oa —_——- : - “THE KEAIRE EXTRADITION CASP. ‘The Dectston of the Supreme Conrt of the United States—Order for a Refroring. Bx parte Thomas Kaine, claimed as a fugitive from justice, under the treaty between the (uited Btater aud Great Britain of 9th August, isa. Wash NG row Ip the Supreme Court of the Un's three opinions on the Kane fat delivered. Justice Catron dr < ene, and held that We arr raise Counsel Boston! and Brady, denying the right or power at Comal Barelay to usury the fun tons of the seonedited British Minister, opera « thonal law, was not ta. ible vernment might driecat thot power am elaborate opinion adverse to the Taney, Nelson and Daniels. Justice Curt's and diff®red with all bik asso lads upon mlaor pe bat concurred with Chief and Daniels upon the question of the case under te existing state +The result, if we are correctly informed that the Bench being equally divided upon the me qmestion of jurisdiction. the preone. mun deresse until action is takeu ce mee ¢r until the writ be allowed ou futur part of the prisouer geome before the New York Court MR. JUSTICE NELSON ® & of Great Britain, -how- Me -—> rly represents the sovereign of strict Judge, upon i entitled to the obedience of the judicial tribunals if sufticient evidence is pro- » to arrest and commit, that a be made; and that in this respect such officer is puton the footing of any of the prose- cuting officers of this government, who ure authoriz- proceedings for a violation of its laws ; that the countty is open to him through- out the limita ef the Union, and the judicial tribunals bound to obedience on his make the arrest and commitment. ment. Now, upon recurrin; trwaty, it will be seen, I think, that no such stipula- entered into or intended to be entered in- authority conferred ‘he two nations agree whower was in cus | that upon ‘mutual requisition by them or their ofti- wentions regularly | cers or authorities res bat their efficiency ¢ the marehal to bring The error or wrong- the uarshal, and yet | orp», and discharged ioe ase lands apon the principle de ~ aed lo Baliman and soe tu all cases where the | let and by color ef the in the cave ex parte | 1 Wax omitted to the custady tmarrhal by the disiriet jude t treat fer that purpose, and serrender may anthority to inure « person twin jell ander the warrant or of any other court of the United States!” that it ie mnmecesary te say more than that point has alrendy passwd in rin jufientem in this In the cae of Ration and Swartwont, it oll arcument, Uhat this ed to institute crimii And then says, and proofs, to isis the argu- Woe EXprenly decided ay to the terms of the court pomrand hax ever since been considered at rest. % parte Wothins, reported in 7 Peters, 568, | ie of the power to f broad interne bat Uiat the Britieh go &@ proceeding. vely made”—that is, on a requisition made by the one’ government, or by its ministers, or officers properly authorized, upon’ the ernment npon whom the demand isthus 4 deliver up to justice all persons charged with the crimes, as provided in the treaty, who | have sought an asylum within her territories. Inother ords, on a demand made by the authori mn this government, it shall t to a demand ustice Taney aad Nelwo reat Britain w liver up the fegitive; and so, in respect hy the authority of this government upon her. is the exact stipulation entered into, when plainly in- the two nations " thority af the ( oited States, Metager, the proens at his cham | of extradition i in respect toa matter ment of criminal offenders against their laws-—and tried and punished urisdiction whose laws have been violated. ‘The duty or obligation entered into is the or obligation of the respective nations, and each nd to see that itis fulfilled, and each is re- sponsible to the other in case of a violation. When the federis occurs, the requisition or demand must be made by the oue nation upon the other. And upon our system of government, a demand upon the nation. m the Presideut, who has charge of _ all its foreign relations, and with whom only foreign governments are authorized or even permitted to hold y communication of national concern. thorized by the constitution to negetiate with foreign governments, and enter into treaty obliga- ops binding upon the nation: and, in respect to joestions arising out of these obligations, or relat- » our foreign relations, in which other govern- pplication must be made to lemand, therefore, upon this nveh a the order of com- here the guilty to chambet aed mot in y of Thomas Kaine, was or made on the requisition of the British eo New York, bevore Joseph fridg d States Commissioner for the A werrant wae y ascerted im previous eases e Kat | do not pro | pose to disturb it For, the case before us is within | of this case, and of ever District of New York. issued and the arrest made, and on the return be fore this cificer an examination took ple charge that the fugitive had committed an aseolt with intent to murder, w Treland, on the ith 1 epen hearing the alle: ry other that has epee hy the fourt, ax I shall | must be made a re us, by the court below, nuly of the prisoner, | went, lute that court missioner brought up cond af the proc rant hal imued. The and also the warrant of coe tion and proofs, adjudged th ner guilty, and ordered that he be committed yursuapee of the treaty the President of the United reserited to the Circuit District of New York, bol " : for a writ of habeas corpus, directed to the Marshal to bring up the body of the prisoner: and. aleo. a eertiorari to the Commissioner to bring up the pro- ecedings that had taken place before him; and upon @ full review of all these proceedings ‘ ¢ th whole cave, there for ite are interested, a A requisition or d must, under an ade upon the kxeeul through any other dey the prise | n by the District J Fem gh. F y be bailed on the return te the sane jail w ther place of safe keepin rt, or officer ining the time to time, til! whether it is proper went, or in auy other way. Judge Marshall, in bis celebrated argument in the case of Jonathan Robbins, who was demanded by | Great Rritwin under the treaty of which this part of the treaty of 18 most verbatim, speaking of the requisition in that case, observes, “thet the ease was in its natnre a national demand, ‘The parties were the two nations. pot come inte court lo litigate their claims, nor Of consequence, the demand 795, aud from was taken al- tention were jor saflicient cause, the writ of habeas corpus be dismiss prisoner be remanded and continued in the custody of the Marshal, under said commitment, On the L7un July, copies of these proceedings b warded to the Departinent of Stat the Acting Secretary issued hi ehal having the custody of the p that he be surrendered to Mr. Barclay, the British rto any other person to receive the fugiti reat Britain for trial. was presented to me at my ¢ town, on behalf of the corpus, which I declined allow the proceedings that had already taken place in the Copies of them were subsequently furnished, and upon an exami- mation, being sutisfied i had no jurisdiction over the case, writ on the 3d fore me at m same month, an or remand him remand to the comtaitment is « preceeding: under it are peod. Fisouer in entirely made upon the nation T wrt deeide Om them. @ case for judicial cognizance He further observes that “The President t the sole organ of the nation, in its | externa! relations, and its ole rep soner, directing | under the anther ing it, or to while or persons duly aw ransport bim to B. 12,5 mod. pp. 22 Comyn, title Habeas ptative with foreign | of « forcign nation e 3 ) | can only be made on him.” in C Tiolt, Chief Jestiee, obverved in the King va. Be tor a writ of hades nes in by hahews ¢ ae uutil the whole of artnet which ix euirusted with ihe whole course of the nation, with the ne ties, with the power of performance of the article, which ia accountable to the nation for the violation of its eugagements with foreign © consequences resulting from such partment to be entrusted power of the C: ¢, and then he manding « reciprocal rded to the same wd bim, it ix ne », for the eatry is * mbers on the Lith which retura was made aceordinz- » As the case wasoue on which I entertained a dit- t opinion from that of the tribunals bet the proceedings had taken place, not only as to the jumisdiction of the Commissioner, but also in respect retation of the treaty and act of Con- ; and, as the ques “able interest of the two nations who were retura to the writ 1 en- an order directing that the case be heard before all the Judges, at the commencement of the next term The case has now been heard in fall aenr with my brethren, jon of a foreign nation apon yer, mech more upoa the humble magistrate of another, demanding as of right the fultilment ot treaty obligations, ix certainly novel, and one that | would not willinly attribute to the distinguished wen who negotiated this one, nor to overnments that ratified it. So extraordinary terpretation onght not to be given to the in- n the plainest does great injustice to both | nations. The proceedings consequent upon it com- | promit the character and dign the demand, and are disres; may be dangerous to the liberty of the citizen. | before us shows that a requisition the Commissioner ajesty's government, | Court, in the case before us, afler reviewing the pro — the judiciary of ano arrived at the al, und to use its own words, he habeas corp serant tn law for tis det lerded by the Court that the and that the prisaner be remand carry it into eff me involved were of couside: selves, and concerned deep! ies to the treaty, on t' stroment, unless u perative terms. stody of the marshal, under tunept by the afore of the one making | ul to the other, an such hix arrest and ¢ of this court. , and I am inclined to co: that we cannot entertain juri allowance of the writ and a yn the low gowern- and to whieh | have ment of the court, the With due solemnity was made uj in this case by her Britannic If he is, it ie admitted through her consul, and seems to imp! all that this court hus jurisdiction of the case,and magistrate is to act under the iv bound to revise that decision. That court not on! adjudges the commitment and imprivoument lawful, but directs the prisoner to be remanded, whieh, says Holt, Chief Justice, is a commitment grounde the old ene; and, further, (which was supertnous the order directs that he shall be continwed in the custody of the marshal, under the old commitment. How it can be said in view of the law governing this writ, and of the form of the jadgment of the court below, that the prison under that judg of the commissioner, without 4 judgment, Tadmit I am ineapa’ if any further authority i ing the writ of habeas corpus referred, and pon this ju ner is or is not held in confinement uuder the ngs under this writ bet of that government, rather than in obedience to the | laws of bis own: and thata refusal te act would be # contempt of that authority. and of the casus fade- | vis of a treaty obligation. If any further aut wes wanting for the int which Tam contendin, B dent for that adopted by me thie case.) That, however, is an original proceedi and in cases where the Court bas original juris to hear and determive the matters upon the retarn, and where the bearing may be had either before one efthe Justices at Charabers or in fw according io the settled course of deci rt, we can only issue the writ and entertain iction of the mistters set forth on the retura, | exercike of our appellate power; (3 Dallas 17, United States vs. Hamilion; $Cranch 448, er parte | Barford; 4 ib.,ex parte Bellman and Swagtwont: 7 | Wh. 38, ex parte Kearney: Watkins; 7 ib.. 5 Howe | as the power cannot he exer tices at chambers. there tinction between tion of the treaty for i cht refer to that given by the anthorities of Great Britain in providing by | eet of Parliament for cerrying it iuto execution on erpart. By the tth and 7th Victoria, chapter 76, | it is enacted—- ¢ # reqnidiion oh y of the United rehending,% seeording 10 the said tee son charged with be crime ove of her Najest reland, for the Chief Secreta: Lieutenant of Ieelomd, and in auy of her M. oad. lor the officer a! Fuck colony o posse that sueh requisition is not in conflaement imply ander the process | sons to net as a Commi Lat any time he made by in pursvance of and ry of any per- $ prineipel Seeretaries of 3 Peters 193, ee parte That was & cou rle Metzger:) and | within the -evera hich were berore the Trarged the prisiner, - oe vl his court disc at the warrant of com itment by the ma- ing the cause of coi | Court had revised the ' proceedings and corrected two of the errors of tag the dhoaee, bs. | their doings in the premises, in conformity with law, Now, it will be seen thet, according to the interpre- tation given to the treaty by Great Britain, the re- lelivery of the fugitive must be upon thet government, and its Warrant obtwined, before any magistrate within her dominion is authorized to act in the matter, The tof Parliament deals with the treaty as regulating Tuatter of nations! pet ti * who can make provision fi raed vitin Vacation as well quisition for the i toade by the Pre Cirenit Court has eorreeted eecdings unoét The ; but confirmed 1, and recommitted hal. att not to be restricted to the ‘az in all other cases w ercised, provision +h proceeding in yacution sented to thi: Conrt habeas cor pu to be dir’ be brought wp, to, with the grown: hubeas corpus could 5 th have acted and this Court into any part arrender, thet the ry can be called inte requeition. «| this is a sound interpretation of its and is ove, while it secures the panish- ment of the offeuder, guards the citizens aud sub | jects of the respective countries # vower of the judicia eason of the great x: of Lis commitment eertiorari to the Circuit Court to briag ceedings that have taken place in thi ust any abuse ia thus kept supervision and control of the two au verpmente, there can be no danger of its being per- verted to the venge, which might justly be apprebended if left to the unrestrained discretion of the eubordinate officers of either, The constract contending, would refer th ate and inferic far as the surre part is concerned ; for, as e | m, any subordinate officers of Great Britain i sition dipectly upon the magi-- sion and committal ; and upon nent heing communicated to the government, the Secretary of State issues hix warrant er be dedivered to the Jiritish authori And, as 1am advised, that department desided before us that the government would aot decision of the Commissioner, adjad¢ however staal ¢ ed to a writ of PP ebal and the 5 are now before . the agreement of the counse situation to enable ns to express an 07 i It is objected that this Court cannot tain jurisdiction of the case, even upon ihe petit retarn of the Marshal, and of tie p: F the Circuit Court to ae ce foie eppears, as snpposed, that the pri fhenent under the and not under the decision and order of the ¢ Court; that this Court cannot reach on review th mocecdings before the Commissioner by virtue thie writ in the exercise of its appellate power, but reach and review the pre ing i and, as the confi , or in pursaan ay p » section of the saine actin whicl «tion is found. of the liberty of the entitled to be gu: constitution and laws, as the right «| notwithstanding the supposed incomy uch has heretofore heen, as we lave seen, on in this Court, when dealing with the will simply edd, in the lan- nman, in the case of the Cana- inst whieh Tam f the treaty to agents of both govern- may make the reg trate for the appre upon such comm writ in question ; aud that the prise r remedy of the <t, the writ of habeas corpus, t we would abide by the pr. we deal with this as ithas been formerly dealt with. atisfied, therefore, that this court has jurisdic tion to issue the prisoner is not unde » of the order 0; that court, the procee it ings under the writ here w« The tirst case in which this questi was discussed at large by counsel anc that of ex porte Bolimen and in confinement trom the Cireuit Court against the United Sta taken to the power of thi bring up the prisone exercise OF an sbeas corpus, to inquire sf the court was commitment below ; and, a4 is dispensed with, would pass out of the hands end beyond the control of the govern- ment. This seoms to be the result of the Ainericaa ti echt te be established. ned that, in Metaver's case, in which tious raised npon th umed, at this day pon a charge of the treaty « doubted principle of this government, that its judi cial tribunals possess no power ‘to arrest, and snr- render to a fore Ist, That it involved the original jurisdiction not given by the and id, That if it was the exercise of an appellate power, it was not within the 14th sec- iory uct, which alone conferred the | i Jostice Mar-tutl!, n at case, admitted J not be exercised a8 a p iction of the court: jurisdiction as an app After answering the arg that the power oward the writ wae limited by see pending in this court, in which rder to enable it to make # final , he observed that the proviso country, fugitives from justice, | Me, weety of 2 zed by treaty stipulations, sud d in pursuance the confer the power i a 1 not necessarily involved in this ease, and need not be ex: put advised, J am free to any article or clause ed to that body by th it belongs to the treaty im: uction War sau | tioned by the Court in that cay ~ ' press terms, requires the requisitions to te made vents of the respective go + vhall mt be made | through the dipsomatic « yernments; but that the until the crime is e#tublished secording to th y in which the fugitive is found. ition was made upon the execu agent of France late power un poses: this 14th section. that section to the executive depart with the conenrrenc « of the Senators, al construction undation of thi provisions of the d the act of Congress pa ie authority to he render of the iby these provisions and set, aser whether or not the pr dieiary , therefore How forme! it decision in the the section extended t are A Jonathas # uisition made by Great le referred the ox District Court of the United Sta hy the executive upon the President, nance thereof, ft for trial before soi ae necessary to be brought int court to And that, consiraing the section with re this proviso, the power of the extended to all o wtrained of his liberty federal government. froan that -ection, as stated by Mr. Justice MeLeag (3 How. 193-10 aro commitied arged agin him. is upon this construction given to the treaty 1] cur subsequent treaties of tion eee to to have been drafted. i+ not confided exclu-ively in the President ; | a “arvender, with the proule w is satinfied thet 4 where the prisoner waa re inder the authority of the ‘The same princiy the dewand for in ex parte De in this section to making the demand under the treaty in rf the trenty of 1755 question, nor ww f the Vresident the requisition 1 fied upon the evidence accompany in per case is presented for an eng charyed, the authori ferred to the jadictary arts or judges to aid and to take the proper for the arrest ond enqut alone pemesmes no author purtody under of the United States, or 1 before some court of be brought into cour he observes, from the lin- tration of it would before us, Her Britannic Majesty has been conmitted Consol at the port of Ne and complaint bef | nuwinat the fugitive in que claiming the fugitive are re upon which a tade; and after tion into the char f being surrendered. this government by the x | Hritain, claiming the surrender. was passed by, and the rer | cul, directly upon the mayistra >| contended for, namely, that the coment or authority | of the Execntive is unnecessary to warrant the inst}. | tution of the proceedings; and, in support of the! | propriety and regularit, i | taken, aud without whi are unarabiquous If this construct f ed, and the case ra yr ix manifest the the security of tl allman and § iberately considered s persem found nude by the Con- on the ground, ae tervention of the jadiciwry that great ineouvenmore wnit aod apprehension of fugh pres upon the construction coutended for. in quence of the extended frontier line betwoen the broadly | two countgies, as ebnet be } Tmaking the p likerty of the citizen broader than has been coutended for on beb prisoner in the case before us. i decided in 1796, led the way to the de man and Swartwout. That case repudiates the the position Bhat the power to jgsve the writ je limited toi may be 0; but I cannot that a scand struction of the treaty, ‘one which » fords - fore nee; us de a for er, and even ne ak whe given up to the subordinate and agents exercised by them in this instance, ia equally ay Ee rdtag § citizen of the country upon a tike aielalen i monies, voter our ya of laws princi government, 0 far a8 rexpects sonal security and I freedom, 1 know distinction between the citizen and the alien who songht an asylum under them. I will simply add, that according to the act of 6th and 7th Victoria, al- ready referred to, carrying into effect this treaty, the indulgence of any such convenience in its exe- cution, is regarded as too dangerous to the subjects of that government residing within its dominions, on the other side of this learned boundary. The treaty, after providing for the requisition of the one govern- ment upon the other for the surrender, then provides | 281 that the respective judges and other ei ates of | fe Fest the two governments shall have power, jurisdiction and authority, Spee complaint made under oath, to issue a warrant for the apprehension of the fugitive. After the requisition has been made upon the Presi- dent, the organ of the government as regards our foreign relations, and his authority obtained, the means are thus provided for procuring the surrender. He was born on the 24th of January, 1762, whe the Roman Catholic College of St. John now stands, o1 the farm occupied b; ternal ancestor, a native 1600, Both bis Sihen a8 tives @f the same spot wi in ence | Dora in le, about the time of Governor Fletcher's ar olony, after whom he was named Benjam| the revolutionary troubles commenced, Captat the fatber of the subject of this notice, hel: &@ commission under the crown, and like most persons si milarly situated, espoused the ro; eat controversy. But paternal authorits the young Andrew long wit jance, and about the middle of the ations in favor of American inde jenee overcame every other consideration, and li | commeneed aa independent career by render’ tant services to the guides and scouting parties that ap whether for attack or obser with all the passes abou! Kingsbridge, Fordham and Morrisania, and withal of | disposition sprightly, futelli | services were anxionsly sought for, when, ia the sumroer| | of 1751, after the allied forces had been encamped the heights of Greenburg about two weeks, and Rogbambeau made ready for a formidabl ; with a select portion of their army, towards the lines «1 the duties of a Officer, ion of the fact, may jutment. and if there is no al side throughout th his power or authorit the preof of a furnishes any evidence of the fact. 432, 433, 450; C. and H. Notes, 280; ‘end. 2 a | proached the British lines, Minutely acquaint tisa rule should ever have obtained that in an action founded upon the adjudication or decision of a ma- rate, or any other oficer of special and limited jurisdiction, the party claiwing a right ander it must aver and prove jurisdiction in the parti case, would afford all it and communicative, necessary evidence of the An application is then made to the Judiciary of the | officer actin, country, mot upon the requisition of the ‘foreign government, but, as in all other cases, upon authority of its own—and the warrant issued as such within” the principle con- Preparatory to this operation, Count Matbieu Damas, other words, the | the two brothers Herthicr, aud several other young ofticer: who had, for some day, bee' tended for. afford evidence per in all cases dispense with further proof, and julgment would virisdietion, and belonging the French «tat zealously engaged in exploring the ground and road®, aud in sketching maps of the country between the allied ca:n| and Kingsbridge, were ordered by the French commande; pursuance of such Sn runs in the name | thus every inferior magistrate would be of the President of the United States. The act of Congress, passed to carry our treaties of ex- tradition into effect, and of course this one among others, takes up the subject at this stage of the proceedings, and designates the jadicial officers who are authorized to act, and prescribes in general terms the steps to be pursued in the arrest, the exam- ination of the criminal charge, and final commitment for the surrender, it evidence of the criminality is upon the footing of courts of general Jurisdiction. 1 to not think it Becenea 7 : ch the argument further, to set out before daylight, and to push their examination! till they came within sight of the enemy’s most advance! | redoubte, at the northern extremfiy of New York island, ‘To protect these youth’ul adventurers, a strong detach ment of the laneers of Lauzun was sent along, unde: | Lieut. Kilmaine, a young Irishman in the Freneh servic | who rome years afterwards beeawe 4 general of division] and enjoyed the reputation of being one of the best ea valry officers in Europe. of the whole party was bestowed _u} to pursue this branch of am satisfied that the com- missioner acted iu the arrest and commitment of the tent evidence of his guilt | To permit the prisoner without of the crime alle; r copies aa evidence without proof of the jurisdiction of the magistrate, would be against all principle, and might yield to the most scandalous abuses in carry- found sufficient. There is no necessar; deserepancy | ing into execution the stipulations of the treaty. This between the provisions of this act and the treaty, as the requisition of the one government upon the other is not attempted to be regulated or defined, but is left as regulated by the terms of that instrument. The pro- visions of the treaty must, therefore, be resorted to for the purpose of ascertaining how that requisition shall be made. I have already explained my inter- pretation of them, and need not repeat it. The ji dicial officers designated in the treaty, and ups whom jurisdiction is conferred, are ‘the respe tive judges and other magistrates of the two govern- ments.” rovision, designates the Yourt, the Judges of the several District Courts of the United States, the Judges of the several State Courts, and Commissioners specially authorized so to do, by any of the Courts of the United States. The terms “other magistrates of the two govern- ments” are quite indefinite and difficult in. their rt Dumas, while ihe celebrated Cornelis Oakley, of Whits Plaine, was selected to act as the principal guide, secom hie cousin, James Onkley, aad lesquare, the reconnoitering pa of American light infantry, wh« ne down to explore the ground ie allied detactunents then attacked patrol of Delancy’s refugees, an wsaulted and drove across Kingsbrid, hat oceupied the Hesginn ont} ening the fugitives (ill they came within musket shot o ‘This recounoisance establishes in favor of Kilmaine and of the elder Rerthier—the latte: wanls & marshal of Franee under Nis poleon, and Prince of Wagram and Neufchatel—reputa. tious for partisan skill and intrepidity that led to thei robsequent preferment. A few days later occurred the gra whieh was made on the 22d and 238d of July by thy American and French commanders and engineers, xup ported by 5,000 troops of the two mations, for the purpos of examining with precision the York island, between Hudson river ani species of evidence is very differently guarded in the act six and seven Victoria. There, copies of the de- positious laid before the government, and upon | which the proper officer issued his warrant to the magistrates, authorizing them to institute proceed- ings to arrest and commit the fugitive, are those | only permitted to be given in evidence. In other words, copies of the depositions upon which the in the .matter sible as evidence of the criminality. ginal of these are those upon whieh our gov The act of Congress, in carrying out this | ernment make the requisition ; Sustices of the Bupreme | the good faith of the nation 1a’ pledged that they junetion with a reieet on the same mornin, government | Prinee Charles redoubt. and, of course, p taken before competent officers, and that the facts stated in them were true. fore us, the copy was taken by a pol foreign country, and produced here before the com- missioners without the sanction of either govern- ment, and without any competent evidence of the nd reconnolsanc itish, posts on Ne application by judicial constraction. In an enlarged | authority of the person before whom it was taken. seuse they might embrace all the United States Com- he act of Congress of the 23d of August, 1 are authorized to arrest persons for crimes ag: the United States, and imprison or bail the same: and, also, all the justices of the peace of the several States, npon whom like power is section of the Judici: act of 17s suppose that the di: sented this government in the negotiation of the treaty, or the President, under whose supervision it | of cutting off, if possible, sneh of the enemy's corps a There was no evidence of the authority of this sighhne focad:tponslenseatn jones appointed by the Circuit Court, who, an- | magistrate, or of any authority under the treaty, for 2, | the arrest of the accused, before the commissioners, ainst | but what depended upon the oral testimony of this | officer, and the statement of the consul of what had been represented to him on the matter, mferred bythe 33d } does not aver that any of the facta stated by him, in Ican hardly | what he calls his requisition upon the commissioner, inguished citizen who repre- | were within his own knowledge. Even the authority attempted to be derived from the Under Secretary of State in Ireland, depends upon the oral statement of | Young Andrew Corsa’: ledge of the country abou the British lines were such that his servieos were again| envnestly sought for upon this ocension; and during both tantly on horsebaek, riding and] ington, Rochambeau, Lanaun, ani | the other generals of the combined army, while they assed throngh the fields of Morrisania, Fordham ani onkers, halting from time to time as they moved along, t rpose of enabling the engineera d Spuytenduyvel creek. the allies, marehing fro these days he was co conversing with Washi grounds along Harlem rive He used to relate that w was entered into, contemplated the exercise of so high | this police witness; and I assert, and do 80 upon the ae punts a power over the rights and liberty of Ne Cl the east near the Bronx, and passing over the hic grounds around Morrisania House, came in sight of th enemy, the fire whieh the British ar responsibility that I know belongs to my place and n, by so numerous a body of the magistracy | the occasion, that there is not one word or scintilla of the country. But, be this as it may, Congress, in | of evidence in the record of the commissioners providing for the execution of the treaty, has de- | upon which the accused in this case has been tried clared who shall constitute those “other ma- | them from the fortifications at Randull’s Is! Hill, from the batterios at Harles and from the ships.| of-wor at anchor in the river, was terrible and ineessant and adjudged guilty, but depends entirely and exclu- xistrates’’ before whom the application may | sively upon the oral be made for the ar have confined the juri examination of this foreign po- and examination, end | lice officer: and who does not pretend that he had ction, in this respect, to | any personal knowledge of the commission of the His knowledge only extends to the verifica- | | and, obeying the instinet of self-preservation, which be4 lenly predominant, he urged his horse nd rode for safety behind the old Morrisani looking back, saw Wash pulled up, and, the Judges of the several State Courts, and Commis- | crime. sioners pecially authorized by the courts of the Uni- ted States, for the performance of that duty. The provision necessarily excludes the great body of the State magistrates and of United States Commission- | ington, Rochambeau and the other officers, riding alon, calmly under the fire, as thoug! His gelf-possession now return ven way to an impulse of fear, he at one with all the rapidity to which he ceuld u his horse, and resumed his place in the order of marc tion of the cop; leposition taken before a | person in Ireland, of whose authority to take know nothing. ‘I'o those familiar with the c: 1 | laws of this country, I need not say, that such evi- ers, possessing Sage power td arrest and commit | dence against any person charged with au offence for offences agai | while the commanding officers, with geod-natured inst the United States, and is in no | against our laws, would be inadmissible and ut- | Of laughter, welcomed him back and eommended bii which must govern this case, un- renee in confiict with any clause in the treaty, bat | terly worthless, in harmony with it and in furtherance of a proper | Jess in support of it, and discreet execution of its stipulations. and especially so under the | . 4 7 Mr. Corsa knew personally every *hdividual of that cele. Jaws of the State of New York, regulated by act | brated band of volunteers, called the It has been argued that, admitting the State magis- | of Congress: and, in my judgment, equall: trates to possess no power under the act of Congress | within a sound and proper construction of the act | and he was among the most confidential frie pnfers the power upon the body of ae against the United States, under the act of “42. I think, Guides,” of whom he himself was the last and youngest heroic Abraham Dyckman, who fell_prematurel; close of the revolutionary contest. Possessed ry unusually retentive, and residing constantly upon Dorders of the neatral ground, he was acquain' both from above and below rations, whether, for the admissibility of these copies | nited States | of depositions taken before the foreign magis- missioners, authorized to arrest and commit for | trate. I have thus Jarge than I should ight attention to the provisions of the act, | it uot for the very refute any such conclusion. The Ist | pect to it, among my brethren. J have regarded it | or small, that occurred 4 por lines, and which until within the last few days of his life, passed to carry the treaty into effect, yet that act | providin; U me over the case much more at we deemed it necessary, were | great diversity of opinion in res- | bres farttne torres | and with nearly all the milita: section confers the exercise of the power under the | asa case of considerable importance, not only from | treaty, upon the Jndges of the Federal Courts, and of the State Courts, and npon Coramissioners autho- rized so to do by any of the Courts of the United States;” and the 6th section provides:— he continued to deseribe in minute ée‘nils, Upon the conclusion of the revolutionary wsr, hi father’s lands, by @ compulsory swle, passed out of th family, and altbongh without | did not hesitate to purchase, with money borrowed 1 the delicacy of the power in the treaty, the provi- sions of which we are called upon to interpret, in- volved, but also from the principles layin, foundation, which concern the rights and means at the time, he “That it shall be lawful for the Courts of the United | evel States, or any of them, to aathorize any person or per the provisions of this act; and the doings of such person or persons 40 authorized in pursuance of any of the pro- all be good and wrailable te all intents perposes wha citizen of the United States. I cannot but think a any, De nt the writ of habeas | ioner or Commi--foners under | corpys, in this case, is calculated to shake the au- | thority of a long line of decisions in this Court, from Hamilton's case, decided in 1795, down to the present | 9nd pear, discovering and bringing into use a new vi | of the latter, which bears his name, being known dis | tinetively as the Coreain Vergaloo. mortgage, a contiguous farm, which industr: management enabled him, not many years Much engaged in the cnitivation of fruit fe the market, he was partienlarty «uccessful with the the denial of the power to over.’ one. That case, as understood and expound 807, which re- : Taking these two provisions together, and constru- | Case of Bollman and Swartwout, in ing them as part of a regulation prescribed by law for vaniylng the Geaty Inte etfe Commissioner, competent to act Jn the matter, must he specially appointed, or authorized by the Federal Courts for that purpose. ‘The first section confers the exercise of the power to Commissioners thus special- ceived the most deliberate consideration of the | . i Death ov Fon. Tirrowas J, Roacu.—It becomes our pain: t, 1 think it plain that a} Court, and to which the doctrine in Hamilton’s case | | ful duty to record tho untimely death of Hon, Thomas J Roach, County Judge of the county of Klamath. Jud | Roach arrived in California in the month of February; 1848, in the ship Isabella, from New York—of which cits | he was a native born—in command of ‘detachment Col. Stevenson's New York regiment of volunteers, an was applied, held that this great writ was within — the cognizance of the Court, under the 14th sec! of the Judiciary Act, in all eases where the prisone was restrained of his liberty, “under or by color ly authorized to perform this duty: and thesixth pro- | of the authority of the United States,” vides for the appointment of them, and declares that | has held the contrary since that d shall he good and valid. How it can be said that the exercise of @ powerthus guarded and restricted, both inthe grant and in the appointment, is conferred, also, upon a body of officersappointed nudera different set, and for other special aud limited di is beyond my comprehension. But it is urged that if the act of Congress caunot be construed as con- al asa soldier and an officer eminently i self. After the disbanding of the regi ted the appointment of of Kdward H. Harrison, cision, with the | exception of that of Metzger, decided in 1847, which, | I have already stated, stands alone, but which dis- | repi tinctly admits the power and jurisdiction of the | Vort of San Francisco, which office he held for o teng of time with much credit to bimseif, for the Ly correct, and efficient discharge of the duties wi Upon the first discovery of geld, he} paired to the mining region, t yratify @ natural curiosity in regard to the marvelous ac counts of the inexhaustible wealth said to be the: iment, Lieut. Roac! lector under th q., then Colleetor of thi 2 | Court in the case before us, | been justly regarded as the stable bulwark of civil Tadmit | liberty, and undoubtedly, in the hands of a firm and 0 pendent judiciary, no can be subjected to This writ has always volved upon him. with myriads of others, inde rson, be he citizen or gal restraint, or be de- | ferring the power, it may be derived from, the ap- prived of his liberty, except according to the law of | awaiting the grasp of all who desired it, and on bis re pointment of this commissioner, under a rule of the Cireuit Court of the United States, adopted in | January, 1851. That rule provides that the clerk of the Cireuit Court and of the District Court, aud other deputies, (the commissioner in question being a dey ny ot the Clerk of the Distzict Court,) shall turn to this city, embarked in_a commercial business i the Messrs. Woodworth. of 1850, he was among the first of those hardy ising adventurers who formed a sotilement at thi idad, on our northern coast, near whieh pl since beon located. , was about twenty-eight years of age. the land. So essential to the security of the personal | rights was the uninterrupted operation and effect of | connection wi this writ_ in full vigor, regarded by the founders of | the republic, that even Congress | except when,in cases of rebellion or invasion, the public safety may require it. J cannot, therefore, | rath pom oan he +s officio Commissioner of the Circuit Court; aud | Consent to cripple or limit the authority confer- | 7m all the duties conferred by several’ acts | 10 of Congress enumerating them, but of which the | oct of 1848, the one in question, is not included, “orofany act of Congress having relation to such | commissioners, and their duties or powers.” These | appointed by the Cirenit Court, | P by the several acts enumerated | y to teke offidavits and bail in civil ca was a young man of superior talents and acquirement and has lefta large circle of sincere snd devoted f e whole extent of the State, who dee He was ow his return from 9 canvass the Constitution aud laws technieal and narrow construc- | tion; but, on the eontrary, prefer to follow the interpretation always given when dealing with it by the Courts of Rn, from which country it has been derived. pound the exercise of the power benignly ant n favor of the deliverance of the subject from all un- and | Jawful imprisonment; and when restrained of his be authorized to execute all the powers, and | Ted upon this Court 1y free | tain stream empt ~ | stream he atten) depth, the force of t! | and he was washed away and eank before his could get to his asristance.—Alla California, Dee. 14. the Klerauth bit ee to arrest and commit for offences against the | liberty he may appeal to the highest common law United provide for the performance of any other duties thet may be conierred upon them by any other | acts of Congress, Now it is apparent, auless it | can be shown that the act of Is48 confers the power | ct under the treaty in the extradition of fugitives | pon these officers, clause in the rule nO Ayr nication to the ense; and, that no such power hus | ven conferred by that set, if fam not greatly mis tuhen, bas been already demonstrated. The rale of | the court add= nothing to the argument in favor of the power, as that depends upon the act of Congress which provides for carrying the treaty into effect, | and which ¢ the power only npon commission- nted by the federal courts for this purpose. The treaty provides that the arrest of the alle fugitive and commitment fur the purpose of a surrender, shall be made Upon such evidenes of eriminality os, aecording tothe nee where the fugilive or person so charged shall be found, would jactify hi: apprebension and com ltment for trial, i the erime or » bad there been | eommnitit The set of Congress makea no provision on this t, exeept av it respects the admissibility of a » which will he noticed hereafter, re to govera and vin hearing and | determining the criminality of the prisoner, as he wee found in that jurisdiction. This would be so, even without the specific provision of the treaty | ws Ube only mode eeding in sammary criminal proceedings, before the federal magistrates, is ac- ring to the practice before the State magistrates ‘The thirty-third section of the expressly provides that sum: | a persons for cr United States, shall be ode of process aguinst o! the State in which he may be found. I aware of any © wt Of Congress on the subject. This secure with the construction given to t treaty in, the Act of P, 6 and 7 Victoria, which requires the prodretion of such evidence as, cording to the lows of that part of her Majesty's nions where the prisouer Is found, would justify yprehenso aud committal for trial, if the crime oe there comunitted. According to the lawa We t» the eval had a New York regulating theae summary proceeding4, | gonthern Distri wo criminel ce: videnee | of the accused as aguluct him, aod*should bi. heord in thir case. The td section of © been Act of | om the return of the warrant of | ander the hand of abt and atte ted Hv them — te 1 fopont thems, tumy be peoetwod v we eciminality o peries of ev ene x rly nr setory, in any respeet in which it can be | wy iewed: Wut certainly R wrnet be characterized as | | evidence of amy deserition, unlow it appe ors that the magistrate in the foreign country taking the de- pevitions, and isewing the warrant, had jurvatiction of the cane, and was compe to perform these ate Unies the authority esiets, the pets are conan Wm. A, Roberts, member of the Thode Island Hou | of Representatives, died in Providence, on the 20d in of inflammation of the bowels. Deacon Alpheus Merrifield, Fpocted citizen of Worceste, sidence in tha‘ city, om the 22d inst., of am affection His age war 75, Mr. John Marshall Hamilton, who met with # sori on the 12th of November last, by a fail in € Spring Garden, died at the Pennsylvania Hospit Philadelphia, on the 24th inst. architect of rare merit. Mr. John M. Adams, an old merebant of Augusta, 6 died in that city on the 22d inst, John W. Peregoy, President of the Baltimore Typorrs Society, died on the 25th inst, General Timoths county, N. ¥., on General Hopkins w for fifty-four years, a and estimable citizens. up what was afterwards, and for known as the ‘Harris Hill Farm, Subsequently he purchased a tract of land of ( Land Co., on what is now the Williamsy a miles from Baffalo, where ‘dom to enquire into the cause of it. the courts of England deal with this tricted in its operation in favor of arity of the personal rights of the subject, that the decision of one court or magistrate upon the re- refusing to discharge the bar to the issuing of a second, or third, or more, by any other court or magistrate having jurisdiction of | , and may remand or discharge according to | ent upon the same matters, (Il. M. 1. East, 314; 14 ib. elsby.) Upon the w prisoner is in confinement under the treat, | and act of Congress, without an; } am of opinion, therefore, that the writ of habeas cor- pus ehould issue in the case, to bring up the prisoner. | 1. On the ground that the judiciary possesses no jurisdiction to entertain the proceedings under the treaty for the apprehension and committal of the alleged fugitive, without a previous requisition made under the authority of Great Britain upon the Presi- dent of the United States, and his authority obtain- ed for the parpose. 2. That the United States Commissioner in this case is not an officer within the treaty or act of Con- gress, upon whom the power is conferred and determine the question of criminality, upon which the surrender is to be made. 3. That there was no compete ‘commissioner, if he possessed thal power, to iasac “| 1 e rile | court in the tutes, ond the, latter clanses of the rale So liberally do writ, and #0 U He belonged to Seituat aged and phil; iod very aihiealy A the se turn to i the case ite The deceased was 679, IL. Salk 4 ole, I am satis! VM. & | that the lawful authority, Hopkins dicd at Amherst, Fi inst., aged seventy-seven yee «ident of what is now Erie count one of its most active, promine: rehased and cleat In 1906 a major, he was commissioned as Commandant, and in 1811.a Brigadier General, by 6 Daniel D. Tompkins, During the last war Britain, be, with bis brigade, wna in active and effici ‘Amidst all the strife and bit hold the office of Justice of tl vonsecutive years, and oneo w: placed upon the électoral ticket for Prestiential elector Mr. William Wicke: residence on the 20th ult., aged 106 e revolutionary war. rings, and war engaged in several skiemil itish and tories, under Gen. Marion, of Bor terviee upon the line ness of party polities, Peace for twenty-five 4, Upon these grounds the.Cireult Court ouzht to have discharged the prisoner, instead of remandir him into custody, and its dec! per subject of review by this Court, by virtue of the writ of habeas corpus. Order for Rehearing. In the matter claimed as a tugitive from justice under the treaty hetween the United States and Great Britain of the | oth Augnst, 1842, we understand that the Judes of | the Supreme Court are divided in op jurisdiction in the matter; and Chie! ‘of the United States Circuit following order, ion ia the case is a pr athis residence on the 26th inst., in the 52d Until within a few hours of his death, parently in the enjoyment of excellent heaith, He w attacked with a hemorrhage of the Ju defied the skill of his physicians, cars, extensively engazed in business in this elty, @ sas always beon distinguished, especially among the me bers of the Methodist denomination, to which he bel and by whor he was best known, ty and At the time of his deg ow to the erection of i free) chureh in Seventeenth street, and to whieh be w « liberal contributor. John Bradford, Faq., formerly a resident of Baltine died at his farm, near Orenge Court House, Vi t DAth inst. ‘The decensed was an offjcer of the volu artillery during the war of 1814, and a fence of Washington, Mary Ann Atherton, sister of Hon. N.H., on the 20th Inst tected that her father died of the same Vion, Charles G, Atherton is inion as to thely Justice Nelson, jas issued the ing a re-hear Mr. Stead was for taal «4 habeas corpus having Ween heretofore issued by *, Tallmadge, Hsq., Marshal of the | of New York, and to which beard, a# well on behalf | the With day of August, 1452, before me, at my chambers in Cooperstown, and upon which retain T re make an order that the case be heard before all the Justices of the Supreme Court, at the commencement of its then next term, an thet (he privoner in the meantime remain in the cus- | tody of said Mowshal; and being satisfied that 1 bad | no ‘authority to make the said order directing the | | cose to be heard in bank, and that the ave still pending before me at chambers, r ¢ the said order of the 11th of August, [852, “1 direct that the said prisoner be brought the said Marshal, nbers in the City Hall of the city of on the first Monday of April next, at 120) that furtler proceedings may be had in the case as may be deemed just and jaw; and that in the meantime the | continue ig the custody of into eflect the reaty, provides that | did then and the ease on the 8th inet. the only remaining child, ‘The U. &. steamer Walker, which arrive here the day from Boston, has been at the Charlo st, undergoing repairs, but was ob! come to New York to have her repairs comploted, i sequence of there not being a dry dock there the one in the navy } at present oceupied by the line of bptile ship Vermin roper, and according to rikoner in to re- to admit her, exee