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That is to say, in the execution of this treaty, as of other treaties of the same class, the arrest, examination, and decision of fact, are judicial functions and acts. They are not, and they cannot be, performed by the President.
Now the arrest, examination, and decision being purely judicial acts, it follows, although the Act of Congress, like the treaty, is silent on this point, yet that the rules of precedure must conform to the law of the land in such matters. What is to be deemed “sufficient evidence " to sustain the charge is a question for the judge or magistrate to decide, according to the laws of the place where the criminal may happen to be examined. So also is the question, on what day he will sit, what adjournments he will grant, and whether he will remand the party charged for a further examination ?
All these are things over which the President has no control, and as to which he can give no command. He cannot arrest the alleged criminal; he cannot judge the question of his guilt; he cannot regulate the discretion or conscience of the examining magistrate.
True the President may, as in this case, issue his mandate for the commencement of the proceedings in the United States, but that mandate is facultative only; it serves, on the hypothesis of the legal conclusions of Mr. Justice Nelson, to give jurisdiction; but that jurisdiction, when thus called into life by the President, rests exclusively with the magistrate making the arrest and examination. If he certifies the criminality of the accused, then the President is to order a surrender—otherwise there is an end, pro hac vice, of the duty and the power of the President.
Nor can appeal be taken from the decision of Mr. Justice Edmonds to any other Court so as to revise that decision. The judge or magistrate in this case acts by special authority under the Act of Congress; no appeal is given from his decision by the Act, and he does not exercise any part of what is technically considered the judicial power of the United States. (Ex parte Metzger v. Howard, 176; United States v. Ferreira, 13 Howard 40, 48, per Ch. J. Taney; In re Kaine, 14 Howard 103, 119, per Mr. Justice Curtis.)
Indeed, by the municipal law as well of England as of the United States, the judgment upon the evidence of the preliminary examination of a party accused, as also the mode of conducting the inquiry, including the question of remanding the party, are, in general, matters within the discretion of the magistrate, that discretion being a wise one of course, and guided by the precedents and doctrines of law; but still not subject to appeal, as such, to another magistrate or Court. (1 Chitty's Crim. Law, by Perkins, p. 89; 1 Archbold's Crim. Prac., by Waterman, p. 44; 2 New York Revised Stat., p. 789.)
I feel constrained, therefore, to come to the conclusion that the President has no power to revise the action of Mr. Justice Edmonds, or to order the detention of Calder.
However inconvenient this may be to the authorities of the British Government in the present instance, the inconveniences are obviously reciprocal and inevitable. The two Governments have by treaty agreed to make the question a judicial one, and they could not do otherwise; for the Government of the United Kingdom is a constitutional one, as well as that of the United States; and in both countries the writ of habeas corpus presents itself as the safeguard, in the hands of the judges, of individual freedom against all possible encroachments on the part of the executive.
I do not perceive how a different conclusion could be reached upon a similar case arising in the United Kingdom. The tenor of the statute there is, that on the requisition of the United States, any Principal Secretary of State, or certain executive authorities designated, shall issue a warrant to signify that such requisition has been so made, and to require all magistrates and officers of justice to govern themselves accordingly, and to aid in apprehending the person accused, and committing bim to gaol for the purpose of being delivered up to justice; and thereupon, proceeds the statute, it shall be lawful for the proper magistrate to examine upon oath any persons touching the truth of the charge, and upon such evidence as, according to the law of the place, would justify the apprehension and commitment for trial of the person accused of the crime, had it been committed in that jurisdiction, the magistrate is to commit the accused to gaol, there to remain until delivered up, in pursuance of the requisition of the United States (6 & 7 Vict. c. 76, s. 1). There is no indication here of any power
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on the part of a Principal Secretary to arrest the alleged fugitive, or to direct the examining magistrate, or to require the detention of the accused for further examination. All he is empowered by the Act to do, is to issue a warrant “ to signify that such requisition has been made,” upon which magistrates and other officers of justice are to govern themselves, according to the provisions of the treaty and the laws of the land.
One thing only, it seems to me, can be done in behalf of the British Government: Mr. Crampton may undoubtedly cause a new complaint to be entered against Calder, and apply for a new warrant of arrest, either with or without a new mandate from the President. Calder has not been tried. He has been examined by a magistrate, and the evidence is adjudged to be insufficient to justify his extradition. But upon a new complaint he may be examined anew by the same or by another magistrate, and the exhibition of additional evidence may lead to the conclusion of his criminality and the certificate thereof to the President.
Permit me, in conclusion, further to suggest, with all proper deference for the opinions of Mr. Justice Edmonds, whether he has not power to remand Calder; that is, if in his judgment the circumstances of the case and the present stage of the examination justify it. Of the general power of a magistrate to remand for examination, there can be no doubt, of course, it being the familiar practice of magistrates; and cases are not wanting of prisoners being detained more than twenty days between their first appearance and their commitment for trial, and being brought up for examination several different days during the interval. (Chitty's Crim. Law, by Perkins, vol. i. p. 73; Archbold's Crim. Prac., by Waterman, vol i. p. 36.) The authority to do this has been recog. nized in New York in the case of a State magistrate examining for a crime charged against the United States. (Ex parte Smith v. Cowen, 273.) In Massachusetts it is regulated and allowed by statute. (Rev. Stat., c. 135, p. 9.) It is true that some adjudications have been made in England which subject the magistrate who remands to an action for alleged unreasonableness of time, even when no improper motive is pretended. What is a reasonable time is a mixed question of law and of fact, depending upon the probability of obtaining further and competent evidence. “What is reasonable,” Bayley, J., observes on one occasion, “does not rest in the discretion of the magistrate; there may be cases in which three days might not be a reasonable time, and yet there may be cases where three months might be reasonable” (Davis v. Capper, 4 Carrington & P. 443 n.). But the magistrate acts on the question of remanding under the peril that, on trespass being brought, a jury with proper instructions from the Court shall find the time of imprisonment to have been unreasonable (Davis v. Capper, ubi sup.; Davis v. Capper, 10 Barn. & Cr. 28), which the more conclusively shows that the whole question here is within the jurisdiction of Mr. Justice Edmonds. And if, having once decided the question of criminality, and made report thereon to the President, the Judge should be of opinion that it is too late for him to entertain a motion for delay, and to remand the party until further evidence be procured, it does not seem to me that his doing so can be subject to any just exception on the part either of his own Government or that of Great Britain. Hon. Wm. L. Marcy, Sec. of State.
(1.) OPINION of the same Attorney General on the same subject (1).
Attorney General's Office, April 21, 1854. SIR,—Your letter of the 19th, referring a case of demand of extradition, would have received my attention immediately, but for my having been out of town for the last three or four days.
It communicates an application from James M. Ray, of the State of Indiana, for a requisition on the British Government to deliver up one Hamilton, charged as a fugitive from that State ; and submits the question, “ Whether the evidence here adduced is sufficient to justify the department in making the desired requi. sition ?”
No evidence is adduced except an affidavit made by Mr. Ray himself, before a notary public, that at a certain time, Hamilton “ feloniously stole, from the State Bank of Indiana, 1450 dollars in bank-notes of the State Bank," and so forth, and that Hamilton had probably fled into the British provinces. (1) 6 Attorncy Generals' Opinions, 431.
If this application depended on the question submitted, it would not be in my power to say that the evidence is sufficient, because it ought to have been passed upon by an examining and committing magistrate before being submitted to the President.
That defect in the papers filed might be cured; but there exists in the case another difficulty which seems to be insuperable.
The only crimes for wbich extradition is provided are “murder and forgery,” by the treaty of 1794 (8 Stat. at Large, p. 129); and “murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers," by the treaty of 1842 (8 Stat. at Large, p. 576).
The crime imputed to Hamilton by the affidavit of Mr. Ray is larceny, and that is not within the treaties.
It is the established rule of the United States neither to grant nor to ask for extradition of criminals as between us and any foreign Government, unless in cases for which stipulation is made by express condition. I cannot therefore advise that in the present case the desired requisition be made on the British Government. Hon. Wm. L. Marcy, Sec. of State.
(7.) OPINION of the same Attorney General on the same subject (1).
Attorney General's Office, November 2, 1854. SIR,—I have received your communication of yesterday's date, transmitting to me the note of Mr. Hulsemann, of the Austrian Legation, in behalf of the Government of the Elector of Hesse Cassel, asking for the extradition, under the treaty of July 16, 1852, of one Maria Theresa Geek, said to be convicted of murder within the territory of the said Elector, and a fugitive from the justice thereof, who it is supposed may have taken refuge in the United States.
The case, if duly proved, comes clearly within the purview of the treaty; and the gravity of the crime alleged to be perpetrated by the party, in addition to the obligations of the treaty and the sound reasons of public policy on which that is founded,
(1) 7 Attorney Generals' Opinions, 6.