In re Palmer

| E.D. Pa. | Jul 1, 1873

CADWALADER, District Judge.

The homicide in question having occurred upon the Jhigh seas, in a British vessel, was committed within British jurisdiction. Whether it was an excusable homicide, and if not, what was the grade of guilt, are questions for the de cisión of a British tribunal. This does not preclude' the observation that if a crime has been committed, it was of the lowest grade of inexcusable homicide. The offence in question was, nevertheless, if punishable at all, within the generic description of murder, as the word is used in the treaty of 1842. And, as no tribunal in the United States can exercise jurisdiction to convict or acquit, the warrant of extradition must be granted, If the application for it shall be insisted on. It may not be improper to add that, if the offence had been cognizable here, I would have admitted the accused party to bail during the •hearing, because the peculiar circumstances of the charge would have justified sueh an exception from the ordinary course of procedure in cases of homicide.

I consider the application for extradition as made by Sir Edward Thornton, the diplomatic representative of the British government, though it is made in the name of the consul. It occurs to me that the consul may perhaps desire to communicate with Sir Edward Thornton before deciding whether to insist on the application for a warrant. The case, may therefore stand over until Wednesday next, unless the accused party objects to the delay.

And afterwards, on Wednesday, the 25th day of June, A. D. 1873, the said consul praying that a warrant of extradition issue, it is issued accordingly, and is hereto subjoined. And all the said depositions, examinations, warrants, orders, and other documents, are therewith returned and certified by the said judge, at Philadelphia, in the said district, on the day last aforesaid.

“United States of America, Eastern District of Pennsylvania — ss.: To the Marshal of the United States: In the matter of Benjamin Palmer, charged with- murder, on the British bark J. B. Duffus, on the high seas. This case having been heard before me, on petition of George Crump. Esq., acting counsel for her Britannic majesty at the port of Philadelphia, that the said Benjamin Palmer be committed for the purpose of being delivered up to justice, under the provisions of the treaty made between the United States and Great Britain on the 9th day of August, A. D. 1842. I find and judge that the evidence produced against the said Benjamin Palmer is sufficient in law to justify his commitment on the charge of murder, had the crime been committed within the United States. Wherefore I order that the said Benjamin Palmer be committed pursuant to tlie provisions of said treaty, to abide the order of the president of the United States in the premises. Given under my hand and the seal of said court, at Philadelphia, this twenty-fifth day of June, A. D. 1873. (Signed) John Cadwalader, Judge. (Seal.)”

NOTH. After the evidence in the case had been certified to the secretary of state, the case was reargued before him by the counsel for the prisoner. The secretary of state finally refused to issue the warrant of extradition, and Benjamin Palmer was released from imprisonment. While the case was pending in Washington, the British minister, Sir Edward Thornton, raised the question whether the secretary of state has the right to refuse a warrant of extradition, ■after a judicial tribunal had certified, under the treaty, that the evidence was sufficient to sustain -the charge made against the accused, and has called the attention of his government to the matter' for the purpose of obviating the difficulty in the future, if possible.