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The terms of the Treaty are free from all ambiguity. They are: "The respective judges and other magistrates of the 2 Governments shall have power, jurisdiction, and authority, upon complaint made, under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered."

The Commissioner, in my judgment, is such other magistrate, who may rightfully take cognizance of cases arising under the Con. vention.

It is very manifest, too, that if the design of the parties to these stipulations, in designating the authorities to hear and consider "the evidence of criminality," was to commit the duty to magistrates, who, from the nature of their offices, were best qualified for its intelligent discharge, it could not have been more effectually accomplished than by referring it to a Commissioner, whose obligation, under the laws of The United States, is to perform the very function of preliminary examination, with a view to commitment, which is contemplated by the Treaty.

The Commissioner, then, being "a magistrate," and competent to entertain jurisdiction of the case, have his proceedings therein been in pursuance of the authority with which the Treaty has invested him?

The only pre-requisite prescribed is, that complaint shall be made, under oath, charging an offence to have been committed within the terms of the Treaty and the jurisdiction of the Power making the demand, and that the party alleged to have committed it has fled from justice, and is within the territories of The United States. This gives to the "magistrate" "power, jurisdiction, and authority." Upon such complaint, he is bound "to issue a warrant for the apprehension of the fugitive or the person charged; to hear and consider the evidence of criminality, and to certify to the Executive Authority whether, according to the laws of the place where the fugitive or person so charged shall be found, such evidence would justify his apprehension or commitment for trial, if the crime or offence had there been committed."

The certified transcript contains the evidence that this requisite has been complied with, and that the duty consequent upon it has been performed.

The case, then, is within the Treaty; sustained by the evidence prescribed by it; acted on by a magistrate having authority to entertain it, upon a complaint duly and regularly made; the proceedings, with the judgment of the magistrate, have been certified to the Executive Authority, and the surrender of the fugitive authoritatively demanded. The duty of the President, in my opinion, is, to issue the warrant.

The accused, in her petition and remonstrance, addressed to the President, and which her counsel, in his argument, has endeavoured to sustain, has challenged the validity of the proceedings of the Commissioner, substantially, upon the grounds following:

1st. That the Treaty of Washington, concluded on the 9th of August, 1842, under which the accused has been arrested and committed, has not been made effectual by such pre-requisite legislative enactments by Congress as can alone authorize her surrender as a fugitive from justice within the scope of the Xth Article.

2nd. That, by the Constitution of The United States, the judicial power is declared to be vested in the Supreme Court, and such inferior courts as Congress shall from time to time ordain and establish; that Congress has not ordained and established any court with jurisdiction over cases like this, and especially has not authorized a Commissioner to act thus judicially upon the case of the accused; and moreover, that Congress has no power to vest such authority in such Commissioner, but only in a court, properly so called, and constituted as a Court of Record, whose proceedings may be reviewed by writ of error or of certiorari.

3rd. That the Xth Article of the Treaty is itself void, as being repugnant to the Constitution of The United States.

As to the first objection. The Convention has been duly concluded and ratified, as well on the part of Great Britain as of The United States. The Ratifications have been interchanged, and the Treaty proclaimed. It has been "made under the authority of The United States," and is the supreme law of the land. It has prescribed, by its own terms, the manner, mode, and authority, in and by which it shall be executed. It has left nothing to be supplied by legislative authority, but has indicated means suitable and efficient for the accomplishment of its objects. It needs no sanctions other or different from those inherent in its own stipulations, and requires no aid from Congress. Surely, it cannot be necessary to invoke the legislative authority to give it validity, by its re-enactment; and to change its terms is within the competency only of the Contracting Parties by whom it has been executed.

The supremacy of a Treaty thus concluded and authenticated reposes upon the authority of the Constitution itself, and is paramount to all mere legislation.

This principle was distinctly asserted by the Executive Department of the Government in 1799, in the case of Thomas Nash, alias Jonathan Robbins, who was surrendered to the British Authorities as a fugitive from justice under the Treaty of 1794.

The terms of that Convention were, moreover, far less comprehensive than are those of the Treaty of Washington. They prescribed no mode and designated no officer or class of officers, in which or by

whom the evidence of criminality was to be heard and considered. They merely provided "that His (British) Majesty and The United States, on mutual requisitions, by them respectively made, or by their respective Ministers or officers authorized to make the same, will deliver up to justice all persons who, being charged with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other; provided that this shall be done on such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the offence had been there committed." To carry these stipulations into effect, no Act was passed by Congress. They were enforced by the President by virtue of their own inherent authority, and as an act of Executive power; and his action was affirmed and vindicated by the Legislative Department of the Government, after a debate conducted with transcendent ability, in which this very ground of the necessity of legislative interposition was assumed-assumed, however, let it be remembered, because of supposed deficiencies in the details of the Convention, which had in terms designated no officer to effectuate it; none to pass upon the evidence of criminality which alone justified a proceeding under it. This arrangement has supplied these deficiencies, and designated the mode and means to be adopted and pursued, with a view, as it would seem, to avoid the very difficulties which were supposed to be incident to the execution of the Treaty of 1794.

It cannot be doubted that Treaties may and often do create obligations, to the fulfilment of which the legislative power is an indispensable auxiliary. But such is not the character of the stipulation under consideration. This is capable of being carried into effect without the aid of Congress, which I hold, therefore, to be unnecessary.

The second objection is, in my opinion, equally untenable. The proceeding under the Treaty is to be governed, in its conduct, not by the provisions of the Constitution of The United States, but by those prescribed by the parties who concluded it. The validity of the stipulations contained in the Xth Article is in no wise dependent upon the character of the magistrate designated to hear and consider "the evidence of criminality" against the person accused. It was just as competent for the contracting Governments to have reposed that authority in executive as in judicial magistrates; and in the case of Thomas Nash, before referred to, the power was exercised by the President of The United States, and his conduct sanctioned, upon the principle that no special provision to the contrary having been made by the Treaty, the function was, in its nature, executive.

This is not a case in law or equity within the scope and meaning

of the 1st clause of the 2nd section of the IIIrd Article of the Constitution of The United States. The provisions of that section are applicable only to cases which assume "a legal form for forensic litigation and judicial decision," in which a final judgment may be rendered, and by whose decision the parties will be bound. It does not contemplate a question of the description under consideration, in reference to which a preliminary proceeding is authorized, as auxiliary to a power in its nature political, created, not by the Constitution, but emanating from the concurrent wills of 2 independent Governments. Had the Treaty conferred upon the magistrate, (if it could have been made competent to such an object,) the power of trying the person charged for an offence committed within a foreign jurisdiction, and of punishing in case of ascertained guilt, the inquiry might have presented itself in a different aspect. But the stipulations under consideration aim at no such end, but are confined to the ascertainment of facts, which can weigh nothing in any consequent and purely judicial investigation of the charge.

It would seem to be clear, too, if the case be one of judicial cognizance, under and by force of the Constitution, that the jurisdiction once attaching would adhere to the subject until it had definitively disposed of it, a proposition which can in no sense be predicated of an offence committed within the dominions of a foreign Power. It is apparent, therefore, as I think, that the section of the Constitution invoked has nothing to do with the question of the authority of Commissioner Rapelje to act in this case. The circumstance that the preliminary inquiry involves matter upon which a judgment is to be exercised, does not necessarily refer it to the judicial department of the Government for decision. Almost every political question depends for its execution upon previous inquiry, involving judgment of the expediency of action or non-action.

Nor does it by any means follow, because the subject of inquiry naturally and fitly pertains to judicature, that, in matters extraterritorial, affecting the citizens of other Governments, or violations of their laws, that the Treaty-making Power may not competently create tribunals of its own to carry out and consummate its objects. Examples are not wanting, in our own experience, to show the sufficiency of this authority, not only to create, but to designate already existing tribunals, other than those which are judicial, to carry out and effectuate Treaty provisions, and to prescribe their modes of proceeding, and the degree and kind of evidence by which their decisions shall be controlled. I have never supposed arrangements of this kind obnoxious to the objection, that they invaded the province of the judiciary, and were therefore void.

In my view, the provisions of the 2nd section of the IIIrd Article of the Constitution do not embrace this class of questions.

The third objection to the validity of the proceedings under review, is to the operation, under any authority or state of circumstances, of the Xth Article of the Treaty of 1842, which is alleged to be void, merely because of its repugnancy to the Constitution of The United States; and it is very justly said, in the language of Justice Story, "though the power" to make Treaties "is general and unrestrained, it is not to be so construed as to destroy the fundamental laws of the State. A power given by the Constitution cannot be construed to authorize a destruction of other powers given in the same instrument. It must be construed, therefore, in subordination to it, and cannot supersede or interfere with any other of its fundamental provisions. Each is equally obligatory and of paramount authority within its scope, and no one embraces a right to annihilate any other. A Treaty to change the organisation of the Government or annihilate its sovereignty, to overturn its Republican form, or to deprive it of its constitutional powers, would be void, because it would destroy what it was designed merely to fulfil the will of the people."

But is there any thing in this Article to render it obnoxious to this exception? The clauses of the Constitution upon which it is based are the IVth and Vth Articles of the Amendments. The first of these declares, that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."

Now, I do not understand the provisions of the Xth Article of the Treaty of 1842 as being at all in conflict with this Article of the Constitution, or that, in fulfilling it, as has been done in this case the right of personal security of the accused has been assailed. The protection guaranteed is not against all seizures; it is against unreasonable seizures; and seizures are to be made only upon probable cause, and when authorized, the evidence of their reasonableness is to be furnished by oath or affirmation-all of which pre-requisites have been complied with in this case.

Nor do I perceive how it can be supposed that there has been an infraction by these Treaty Stipulations of the 5th of the Constitutional amendments, which in declaring that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury," was never designed to embrace any other than offences against The United States. The offence charged by this proceeding is one against the Government of Great Britain, over which the Courts of The United States can rightfully assume no jurisdiction, and for which in these Courts the accused

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