"commissioners, as to the insufficiency of the proof of criminality of a party charged before

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❝ him.

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"I am of opinion that a writ of Habeas Corpus "cannot be rightfully allowed for the purpose of inquiring into the legality of a warrant emanating "from the Executive branch of the Government, "intended to surrender a person duly committed "to a Marshal of the United States, to the autho"rities of Great Britain under the provisions of the "tenth article of the said treaty, before the party "shall be thereby actually transferred and detained "in such British custody within the United States. "I accordingly refuse to allow the Habeas Corpus prayed for in this case.

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"SAMUEL R. BETTS,

"New York, August 12th, 1843."

"United States Judge, &c.

We conceive the learned Judge in this instance to have evaded-to have shrunk back from the real question at issue, or the responsibility of pronouncing on the constitutionality, or otherwise, of the proceedings now had for the first time, under the provisions of this treaty. He satisfied himself of the existence (until then,) of an uncontroverted and undisputed law appearing upon the statute book of the country, and assuming its entire legality, he acted upon this presumption, as his most convenient course, on a question of mere preliminary observance, in bringing the matter up for investiga

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tion before a competent legal jurisdiction :-for had his Honour in the exercise of a sounder discretion, allowed the writ of Habeas Corpus, the party on whose behalf it was sought for, being then under restraint, and actually in prison under the provisions of the law made for the purpose of carrying out the stipulations of this treaty, and decided on the objections raised against its constitutionality, when brought before him on argument, the entire question, in the event of an adverse decision, would have been carried by appeal, before the Chief Justice and Supreme Court of the United States at Washington, and the law of the treaty power of the United States determined, without being controlled by any past legislative proceedings on the subject, under the prescribed and written constitution of the country; and to which Congress is equally amenable with every other, the constituted tribunals of the Republic; which none can overstep, or in any wise alter or amend, except in the mode prescribed under its provisions.

In this, the American constitution essentially differs from our mode of government. In England, the jurisdiction of Parliament with the assent of the Crown is omnipotent, and against which the Law Courts cannot decide. But not so in the United States, where the supreme legal tribunal possesses the right to set aside the laws passed by the united legislature, if contrary to, or inconsistent with, the written constitution under which the nation is governed. This deed, according to Story, being

the supreme law of the land, its infraction comes naturally before a legal tribunal.

We conceive the reasons put forward by Judge Betts of the District Court, for refusing the writ of Habeas Corpus in this instance, to have been a mere evasion of the law which he had sworn to faithfully and impartially administer-an unworthy and discreditable subterfuge-a shrinking from the high and responsible duties imposed on him under the obligations of his office, evidencing, as we submit it does, the very slender protection secured to Americans, or the emigrant stranger, under the dispensation of these most corrupt tribunals. Christina Cochran had committed no offence against the United States, or the majesty of its laws-not even against those of Great Britain, for on her subsequent trial, when brought back to Scotland, she was acquitted. She had gone to America and was entitled to the protection of her person, as of her property, so long as she deported herself as a good and peaceable citizen. Yet was she arrested and committed to prison, under, or by virtue of an authority or asserted jurisdiction, the legality or constitutional propriety of which, it was quite reasonable and just to doubt, and call in question.

The constitution of the United States concedes the privilege of the writ of Habeas Corpus as of right to every citizen, and other free person residing within its territory; and declares, that "it shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."

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Yet, here is a judge of the supreme government of the United States, in the face and front of these salutary and well defined provisions of the established law of the land-its implied protection against arbitrary rule and individual oppression, ceded to every citizen without any further restriction or other qualification, refusing to allow the writ of Habeas Corpus prayed for in this instance, and only denied as far as recorded facts will sustain the belief, because that the wrong against which the unfortunate applicant complained-the severe injustice intended to her, was not complete in its ramifications, or carried out to the fullest extent of its contemplated injury.

Was ever decision more monstrous-or the incapacity of a judge-the malversation of a high official trust more fully apparent. Had the writ of Habeas Corpus been allowed in the first instance, and an investigation gone into in consequence, it would have mattered very little the interpretation that Judge Betts might have felt disposed to attach to this law, for if adverse, the Supreme Court of the United States would have been fully empowered to revise such decision, and in doing so, to determine the competency of the United Congress to pass any such enactment. As it is, and notwithstanding that the case of Christina Gilmour may hereafter be put forward as a precedent, this question, we still believe, remains undetermined, with every reasonable probability, should the constitutionality of the law be ever hereafter tested, of its being found insuffi

cient to secure or carry out any one of the purposes contemplated by this section of the treaty.

The second subdivision of the sixth article of the constitution, referred to by Judge Betts, and under which he attempts to justify his recorded opinion, that "the tenth article of this treaty is in force as a subsisting law of the United States," will not we conceive at all warrant such inference. The following is the provision in the law to which he refers.

"This constitution, and the laws of the United States made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the constitution or laws of any state to the contrary notwithstanding."

The "treaties made, or which shall be made under the authority of the United States," here referred to, can only be considered as those which the United Congress are legally competent or empowered to make, or enter upon, under or by virtue of the restricted authority expressly limited to it under the constitution. It would, we conceive, be a wild and extravagant absurdity to suppose it otherwise, or that the combined legislative and executive power with which it is entrusted, instead of being delegated as it has been, for strictly defined purposes, beyond which, in reality, it cannot travel, has been permitted to it, with an extended discretionary authority, to abrogate any fixed rule, or established law of the land, or of creating and enforcing others