mitting him to prison until the President of the United States should demand him. "Before that demand was made, the prisoner was taken before the Circuit Judge, Edmonds, of the first circuit of New York, on habeas corpus. That officer decided that the police magistrate had no jurisdiction in the matter, and the prisoner was discharged. "The French diplomatic agent then made application to the United States District Judge Betts, who determined the case as the police magistrate did, and issued a like warrant of commitment. "Judge Betts held that as a treaty is the supreme law of the land, it is entitled, when coming before the courts, to the same effect as an act of Congress, though no act has been passed to define the method of its operation; that under such treaty a fugitive is subject to apprehension and commitment for a crime committed against the laws of the country demanding him as a fugitive, whether such crime be an offence in the country to which he has fled or not; and that whether the casus fœderis has arisen, or whether the compact will be executed, is a political question to be decided by the President, the courts having no power to direct or contravene his decisions in the first instance. "Whether the judiciary has authority in habeas corpus, after the fugitive is under arrest, to prevent his extradition, if the President decides to make it, was not decided. 5 New York Legal Observer, 83; Wharton St. Tr., 457. "After the commitment by Judge Betts, the prisoner applied to the Supreme Court of the United States for a writ of habeas corpus to review the action of the district judge. The application was denied on the ground that that court had no power to review the action of the district judge at chambers. 5 How., 176. 66 Thereupon the President issued his mandate to the marshal of New York, commanding him to surrender the prisoner to the diplomatic agents of the French government. Before, however, the surrender was actually made, a writ of habeas corpus issued, directed to the marshal returnable before Edmonds, circuit judge of New York. "The case was twice argued by counsel for the prisoner, and the French government and the United States District Attorney. "The judge finally in March, 1847, held that the provisions in the Treaty with Frauce to be executed in futuro, were in the nature of a contract, and did not become a rule for the courts until legislative action was had upon the subject. That the stipulation in that treaty providing for the surrender of fugitives from justice, could not be executed by the President of the United States, without an act of Congress, and that no person could be surrendered under that treaty, who is merely charged with crime before a committing magistrate." He ordered the prisoner to be discharged. The "legislative action" which Ch. Justice Marshall thought would be proper, and which Judge Edmonds held to be indispensable, was afterwards had. An act was passed by Congress on the 12th August, 1848, intitled "An act for giving effect to certain treaty stipulations between this and foreign governments, for the apprehension and delivering up of certain offenders," 9 St. at Large, 302. By this act it is provided: "That in all cases in which treaties of extradition may exist between the United States and foreign governments, the justices and judges of the United States and state courts and Commissioner, authorized by the United States Courts, may upon complaint made under oath or affirmation, charging &c., issue warrants for the apprehension of any person charged with having committed certain offences within the limits of such foreign governments. That if on hearing, the evidence be deemed sufficient to sustain the charge, the same shall be certified with a copy of the testimony to the Secretary of State, that a warrant may issue upon requisition from the proper authority for the surrender of such offender. That copies of the depositions upon which an original warrant in such foreign country may have been granted, certified under the hand of the person issuing such warrant, and attested upon the oath of the party producing them, to be true copies of the original depositions, may be received in evidence of the criminality of the person apprehended. That the Secretary of State under his hand and seal of office may order such offenders to be delivered to such person as may be authorized by such foreign government to receive them. That if such offender be not conveyed out of the United States within two months after commitment, over and above the time actually required to convey him from the jail where committed by the readiest way out of the United States, any judge of the United States or state courts may discharge him on proof of reasonable notice to the Secretary of State, unless sufficient cause be shown to the judge why the discharge should not be ordered. That the Courts of the United States may authorize any person to act as commissioner under the act." Thus, at length, all the powers of the government, legislative, judicial and executive are brought into harmonious coöperation, each performing its appropriate office, and all contributing to the same end, the double duty of preserving public faith and at the same time protecting private liberty. Since the passage of the act of 1848, a majority of the judges of the Supreme Court of the United States in The matter of Kaine, 14 How., 103, expressed the opinion that under that act a commissioner appointed by an order in general terms, may issue a warrant for the arrest of a fugitive from justice. That he may do so on the application of the representative of a foreign government, without special instruction or warrant being first issued to him by the U. S. government, and that proof that the magistrate in Ireland, before whom the prosecution was instituted, publicly discharged the duties of a justice of the peace, was prima facie evidence of his official character. CHAPTER II. EXTRADITION OF FUGITIVES FROM JUSTICE, FROM THE SEVERAL STATES OF THE UNION. Section I. NATURE OF THE OBLIGATION. II. THE CRIME COMMITTED. III. THE ACCUSATION. IV. THE FLIGHT OF THE ACCUSED. V. THE DEMAND OF THE FUGITIVE. VI. THE ARREST AND SURRENDER. SECTION I. NATURE OF THE OBLIGATION. The colonies recognized the obligation without formal compact. Ch. J. Tilghman, in the case of The Commonwealth v. Deacon, 10 S. and R., 129, says: "That prior to the American revolution, a criminal who fled from one colony, found no protection in another. He was arrested wherever found, and sent for trial to the place where the offence was committed." The following extract from the Colonial records of Pennsylvania will show that in 1685, the rights of sovereignty were duly respected and the law of national comity readily conceded. "The 24th of ye 5th Mo., 1685." "Wm Haigue request ye secret" that a hue and cry from East Jersie after a servant of Mr John White, march' at |