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that the arrest is simply to gratify the personal malice of
an individual, or of the authorities of a foreign nation, I have no question as to the power and duty of the court to lay strong hands upon those proceedings, and to stop them al- -together. But the mere fact that one examination has failed by reason of a lack of sufficient testimony is no bar in law to a second, and the court ought not to interfere until it appears that the second is instituted for the purpose of private malice. We all know how often, in the administration of justice, it happens that a preliminary examination fails. The testimony first presented is insufficient; the officer is found not to have jurisdiction; the complaint is technically defective, and the proceedings fail. It would be an outrage upon jus dice if for any such reason as that there could be no further prosecution of one charged with crime, and equally, in extradition cases, a violation of the spirit, if not of the letter, of the treaty. It seems to us that it is as if this
government should say to a foreign nation: 'True, we have agreed by solemn compact to return to you a man who is charged by a person duly authorised with having committed a crime, if
the evidence of his crime is satisfactory, but in this instance we will not surrender him simply because on the first presenta- -hon of your case you have failed to make out a sufficient
showing.'
#
Re Kelly,
U. S. Circuit Court Dist. Minnesota,
26 Federal Reporter, p. 802.
It will be noted that in this case the court tacitly proceeds on
what we contend is the correct principle to be applied in the Sotto case; that is, that the treaty and the statutes are to be construed to- -gether and so as, if possible, to give effect to both.
On January 6 and again on January 15, 1891, the Governor of Wiscon- -sin issued requisitions upon the Governor of Minnesota for the arrest
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