*1 DECEMBEK
In re Kaine. of New and District sideration was counsel. On Jersey, argued by con- whereof, it now here ordered and adjudged by court, of the said Circuit judgment Court in be,- cause same affirmed costs. hereby, with alleged Fugitive re Kaine, Thomas Great Britain. article of the Under tenth of 1842. between the United States treaty Great a warrant was Britain, issued at the by instance of the commissioner, British for the of a alleged, Consul, it was had apprehension who, committed an person with intent assault, Ireland. murder, being arrested, The ordered him to Commissioner for person committed, abiding order President of the United States. purpose habeas was then A issued Court of the United corpus Dis- States, Circuit Judge presiding, trict after a heaving, the writ when, dismissed, was remanded to custody. Judge, A was then to the petition Circuit at presented his addressed to the chambers, praj’ing Justices Court, fora writ Supreme which was corpus, Judge, Circuit at-the hearing, referred after a to the Justices the Supreme Court, in bank, commencement of the next term thereof. meeting At a motion with made, papers Judge to the Circuit annexed for writs of habeas presented petition, bring and certiorari to the defendant and the record from the Circuit for having the decision of examined. purpose motion was the writs for dismissed. refused; denied, prayed peririon June, On the 14th"óf the British Con- Anthony Barclay, York, Betts, sul New addressed to Samuel of the Dis- It. Judge Court of the trict United States for Southern District New York, and to commissioners authorized judicial perform set forth, duties in the that matter, a It requisition complaint. it had been was believed to Mr. represented Barclay, Kaine, Cain, him, Kane, Cooleen, that one Thomas then of did, .1851, Ireland, on or about in at the 5th fire a of April, pistol ope Balfe, him; James murder warrant intent to that a him but that apprehend issued a justice peace, Kaine had said absconded and fled United States. further had requisition stated, crime of which he would his and commitment justified guilty apprehension if had been committed the United States. then within issued, that warrant for asked -might apprehension end evidence of be heard and con- criminality if, on such should be deemed sidered the evidence hearing, sufficient, should -executive certified the proper in order that a the surrender warrant issue authority, might States between fugitive, Britain. Great The truth of this Kaine was arrested and was sworn to Mr. complaint Barclay. brought Joseph Bridgham, Commissioner the' United at New- York. *2 The case was heard before the decided, Commissioner, who June, on the 23d of the evidence was in law to sufficient ,the of Kaine; commitment justify of assault charge to commit murder; intent and ordered that the prisoner committed, be to abide the order of the should President of the United States. A writ of out, was sued and allowed by Judge Betts. The writ was returnable to the Circuit Court of the States; and, United on the 3d of Betts, the Dis- July, Judge trict that the writ to the then alone in the Circuit Judge, sitting Court, decided should dismissed and' the be remanded prisoner of the marshal. custody On the 17th of of State issued a July, Acting Secretary warrant, the marshal to deliver directing Kaine to the British Consul. 22d On the Kaine July, to Mr. presented Justice petition Nelson, at chambers, his for a writ of habeas carpus. praying The handed petition, to Mr. Justice although Nelson, was ad- dressed to the Justices of the Court of the Supreme States, which was not then in session. On the 3d' of Mr. Justice Nelson allowed the August, writ, and made it-returnable on the 11th. marshal, The in his return, stated the above facts, when, on the samé Mr. Justice day, Nelson ordered as follows: “ The marshal made the return, that, within Ordered having in consequence of the difficult and involved questions important case, in the it be heard before all the Justices of the Supreme Court in bank, the commencement of the next term thereof; and that, in .the of the said marshal.” time, mean remain custody A motion was made in certiorari, this court for a bring up Circuit when holden proceedings by Judge Betts, which were to be used if the writ -printed, ready should ordered. In this condition of the case, the court passed following order. On Consideration of the cause filed in this petition yesterday, and of the had, counsel arguments well thereupon sup- - of port it, is now here application it' ordered against court, .haye leave counsel to argue ques- following tions, wit: 1. Has this court jurisdiction upon as certified ' Nelson? Judge 1852. issue to 2. Can certiorari bring up a. Court? Circuit the court to have jurisdiction, proceed- Assuming the Circuit before this Court to is the legally ings entitled to ? be'discharged party court, on the first be, it is further And ordered same are, set down for hereby Janu- argument Monday next. ary delivered opinions unusuallength Judges of counsel, prevents which he would wish to do. Reporter inserting arguments Mr. and Mr. Brady, Busteed argued by the. on the other side. counsel petitioner, appearing As the refer to a opinions particular part proceedings- evidence below, it is to insert the following. necessary Esq., To John M. Sub-Inspector, Warrant. Higginson, Assistants, this to execute. *3 op County to wit: Westmeath, Whereas, on oath has been made beiore her ma- complaint of and for the said of West- justices jesty’s peace, county Ballinlober,
meath, ori thi's one did, Kane 'day, at Thomas Cooleen, in said Westmeath, at on this fifth county day instant, fire a loaded maliciously April, feloniously pistol, lead, Balfe, at with with one James the intent powder to. murder and did then and wound the him, aforesaid James there . Balfe: therefore, are, name, in her These charge and majesty’s thereof, to on you, command immediately apprehend receipt before some of her and bring justices majesty’s peace, for said Thomas Kane'y body county, aforesaid dealt to answer the and to further with complaint, according to law. seal, this 5th 1851.
Given under hand my day April, J. P. [seal.] Jas. Featherston, ' assistants, Martin To Sub-Constable his lawful Meagher warrant to execute. this legally M. J. 3d S. I. Higginson, n 5th April, 1851. Moate, execute same on the 11th 12th of Endeavored April,' without effect. ’51, Liverpool, A. C. Meagher, Martin
In re K>.ine. to execute this Endeavored warrant on the of the 29th night instant, I., J. M. S. did Higginson,. Esq;, party; ' succeed. Head Constable. Green, Jambs June, the 7th do. 1851. Do. 30th, ’51. MoATE,.May G., J. H C. This warrant endeavored to be Endeavored on the to be executed executed on the ’51, 6th 16th No- July, morning vember, ’51, the. C. without ef- Jas. Moore, 16. Do. Oct. fect. h. c. Do. do. 2&. Do. Nov. to execute this Endeavored 10, M., >51. M. A. on Thos. Kane, C. warrant 25, Nov. >51. S. Feb., Do. J. C. of the 29th Malón, night- Meagher ’52, No. ’51. A. C. Do. effect. without M. Const. party. Costigan, Dec. 21st. M. do. C. Endeavored Do. Do. execute Costigan, warrant, 27th. night ’52, do. 12th ’52, Jan’y, March, Do. 13th with- Meagher C. A. out effect. party. Feb., 22d ’52. M. By Do. Const. Sub-Inspr. Costigan, and party. op to wit: Borough Liverpool, Whereas, hath oath made before .upon proof day me, the said bo- justices one of -her majesty’s peace name, Featherston, James to the within warrant rough, subscribed, is of justice 'handwriting peace I do Martin mentioned. authorize who hereby Meagher, within warrant, and all to whom to me this other persons bringeth directed, or exe- whom may lawfully
was originally all constables and officers of also cuted, and peace within the said -execute the same Liverpool, said borough late mentioned borough. hand, this 11th Given undér April, my day Harvey. E. it. op to wit: County Westmeath, *4 Balfq, Shurock, of James of information complaint 5tb our Lord 1851, of of taken farmer, April, year day one of'her justices undersigned, Majesty’s before the Westmeath, of who saith, said that on in and county peace, I near that 5th was ploughing part this1 day April,) day, (the Westmeath, said which Cooleen, land of county Stones William had a man lately dispossessed land named me, he threatened told had about which of, frequently it, but should sow that I since that I might me a few days 1852. .In re Kain'e. at Saith, noon, o’clock on it. about the hour of 12 live to reap Ka-in,came to me Cain, a naan named Thomas said day, On com- I was armed with a case of when pistols. ploughing, £ are. Peter me, to me he said to God save you ing up you; ’ - not, ? I Tom. He then know am said, Balfe don’t well I you asked,, the other is that land ? I that was not; said Bton.es’- to have I warned me, side ditch. then asked He not, to do what with and I said it, except nothing (Stones’ land,) me, and I heard from Stones. He then asked had I a self and he to warn said he came Well, I said I have one not. my- prayer-book. and took ; hand, took both in oné pistols prayer- book out of his towards me. threw it on the ground pocket I to take fired one of the while stooped up, stooping at me found the mark ; and on I pistols examining my person, side, un- of -a bullet of shot just my twenty-seven grains left discolored der arm. He was so close that the my powder coat, and some the said left arm. shot marks my my I then ran me some and he followed dis- jumped up away, tance he then turned back I horses, towards the and went into house, John and sent for I saw no more the horses. Mularney’s back, of him. I well for I knew him some his years kept prayer-book. Balfe., James -X mark. Bgdlen- Sworn before me the mentioned, first at dáy year said tubbe, Westmeath, this 5th county day Apri.’r,' in. 1851.
James Featherston, h. information, that the certify on the other side copied hereof, is the original which deposition upon the original warrant has been issued me for the Thomas apprehension Kain, of.' at James charged of Balfe, Shurock, shooting the county Westmeath, with intent him, murder James Balfe; said and I further certify, the other side said hereof copy a true of said copy original deposition. Dated the 25th day May, Jas. Featherston, h. One her Majesty’s Justices the Peace county Ireland. Westmeath,
Witness Meagher, A. C. present — Martin was delivered opinion Mr. following Justice CA- TKON, Mr. Justice McLEAN, Mi-.Justice WAYNE, n GRIER, and Mr. Justice coincided. Mr. Justice CURTIS delivered and Mr. separate opinion, Chief Justice TANEY, DANIEL,- Mr. Justice and Mr. Justice NELSON, .dissented. *5 COURT
In re Kaine. Mr. Justice CATRON. The facts adduced on of Kaine, the part for our applicant interference, show that a was made complaint out in due form counsel, at the instance British government, through to secure the agents, surrender of the and that Mr. fugitive; the British Consul at Barclay, York, New was em- specially direct of ployed, by Minister, British accredited to n government, take the proper steps, according tenth article of the 1842; furthermore, to an officer of the Irish who was able constabulary, Kaine, had identify been sent to Mr. with letters Barclay, British Home Department, to assist in the prosecution. of'this pursuance Mr. made the authority, neces- Barclay affidavit, sary and caused Kaine to arrested and brought before Joseph a Bridgham, Esquire, commissioner appointed by the Circuit. Court of the United States, for the Southern Dis- trict of New York who reports facts principal presented to “ him,, warrant in Ireland, ’occurredin having : follows The original issued was James Featherstonhaugh, Esq., justice Westmeath, Ire- peace county land, in which crime was committed. The alleged county me, warrant was before with a together produced copy or affidavit said information which warrant issued, certified to the act of being copy according said Congress, by (cid:127) who issued the warrant, and attested justice peace,' oath of the witness to be a Balfe, true th.e Jame» copy. witness, made who or affidavit, states, information among ‘ that on the 5th he was things, day April, plough- Westmeath, land when Thomas county some ing to him, armed with a case of and after came up pistols, Kaine some named land, which conversation man respecting some been the the dispossessed, respecting had lately Stone came to threatened,, said, he warn had witness he, witness, and he it, about asked if had prayer- Balfe Witness not; had Kaine then said that said that he had book; witness witness, it on before the who himself, and -threw the ground one stooped while one of the Kaine fired up; stooping, pick on his he found marks him, and that examining person pistols under his side, shot in left just his a bullet twenty-seven then, him and that some dis- fled, Kaine arm; pursued no more back, witness saw tance,, turned him.’ but finally said this information the justice, Featherstonhaugh, Upon Westmeath, warrant, for the county granted peace Kaine, com- of Thomas prisoner, apprehension him, that the had feloni- oath, made plaint. loaded with powder fired- maliciously pistol; ously
DECEMBER, TERM, 1852. to murder him. Balfe, said intent This at the James lead 'into warrant, 5, 1851, immediately dated put April Westmeath, one who Martin constable hands made Meagher, *6 him, to find or the unable to search for and was ' before execute the warrant. The said produced Meagher that he was testified, as a me, witness, and things, among of of of the eounty constable the Irish constabulary, acting constable for several Westmeath, been such Ireland, and had had the and Kaine, he that knew Thomas prisoner, years; known received, he had him for three years upwards; to execute mentioned, constable, as such the warrant before that he saw warrant; the that it was the against prisoner; original it, execute and that James Featherstonhaugh,the magistrate, of of said be a the peace knew to Featherstonhaugh justice Westmeath, Ireland.” of county here stated are to facts The case us shows presented us, made. found correctly Nothing to which it took aid our appears government any step Kaine. And authorities in and committing British arresting of the on the declined to part Attorney-General appear, motionnor States in this to this United opposition the ar- counsel of British did on behalf the behalf of the appear government, only. before us fugitive gument being arises, whether state of facts question On the foregoing to jurisdiction United States Commissioner had power of his own without the government. proceed previous authority with Great Several obscurities in our extradition treáties on the require Britain France were legislation, supposed execution, their due of to secure Congress, accordingly part 12,1848, act of its provisions, August passed. By District courts of and those Supreme Judges States, courts, State the United of several of and also courts of the Judges for the Commissioners purpose any appointed are with severally yested oath, under act, and a made jurisdiction on complaint charging with the crimes enumerated committed of person having for the within the and to issue warrant jurisdiction; foreign be that he so brought may apprehension charged, person that the Commissioner, before such or end evidence Judge and if it considered; may criminality be heard deemed sufficient sustain charge, provisions Commis- then it Judge made duty a sioner, the fact together copy certify sufficiency, State, him, taken before to the Secretary testimony may Executive, that a warrant on the requisi- so issue by authorities, tion foreign government, proper through VOL. xiv.
lío
In re ICaine. for surrender of the And the fugitives. person charged be committed shall and there remain under the war- jail, rant of the made. until Commissioner the surrender Judge shah That an Executive to a order surrender foreign government act, is be doubted that this national is not purely nor can open controversy; act executive must performed through State order of our Chief Secretary Magistrate repre- this nation. senting But does not follow Congress excluded from vesting'authority injudicial magistrates arrest to a commit, surrender. preparatory with Great Britain is on us as the equally binding acb and it likewise confers Congress, and au- on the thority judges magistrates respective govern- ments, to issue warrants apprehension’ fugitives; for and also the evidence hearing considering produced them; against provides, shall committing magistrate certify as to the evidence, sufficiency executive authority, so that a warrant of surrender issue. But we are here *7 more the first and third considering sections particularly of the are statute; of the merely and alto- they explanatory consistent with it. careful, gether Congress scrupulously the neither to limit the terms of the extend treaty stipulations. to According no doubt is statute, me, entertained of United the act, the judicial magistrates designated by are to issue and cause required warrants arrests to be made, at the on the instance of of foreign government, proof criminality, as in cases crimes are when committed ordinary within our own and the of laws the jurisdiction, punishable by States. that, acts, But it insisted as is these in cases fugitives, must be in to a done one nation conformity treaty another, act and as. nation can the through supreme nation, Executive the the and representing authority, Judges the Commissioners have no to take first without be- power step President, authorized to the do so who the ing'' represents the and that of the ; nation to nation have no foreign agents right act, in call on our to officers advance judicial authority from the President. On hand, it is supposed judicial magistrate and in to act of obedience proceeds treaty Congress, by he determine, is invested with to power independent on commands, of those who authority apply President's and himself, to that he must decide for prosecute fugitive; issues, before the whether has the warrant au- prosecutor to of his nation demand the warrant, either official thority Ill re Kaine. so form, in some station, or by satisfactory special deputation, be avoided. of the accused will oppression party had the That the British in this instance authority Consul commitment, cannot his- to demand arrest and government is, and was, now ; be doubted nor that the British government the surrender. seeking Two acts of to Parliament have been carry passed 1843, and of 1842 into one in effect in the British dominions the other in is invoked 1845; the of which authority express- one require true construction ing treaty. They if the secretaries of fugitive state principal England, found of the Lord-Lieuten- or the chief England, Secretary Ireland, or if found in there, ant of if the is found fugitive abroad, the officer colony administering government made, to .to the requisition colony, signify within juris- and officers require justice to magistrates made, aid diction where requisition apprehending accused, him for the purpose person committing delivered, to'the treaty. being provisions according on commit, The British acts confer arrest authority courts, and also on peace, judges justices excluded jus- inferior tices of the Our act of magistrates. Congress police and limits inferior power peace magistrates, to Commissioners courts, the United States Judges State them; purpose by respective appointed Judges. these, are, And declared, my opinion, already from the mandate without proceed previous .authorized reason see why Nor can I executive department, good is bound be otherwise. The should judicial magistrate the warrant on affidavits on which decide sufficiency founded, right to determine df arrest compelled why proceeding; further prosecute, every step to decide on the prosecutor’s should is.difficult perceive. to institute proceeding, allow of this could country hardly brought people *8 in any degree. interference President Judges with administration, was Mr. Adams’s made The experiment during Bobbins 1799, Nathan) failed. Jonathan in signally (or as a 27th article arrested Jay’s under the had fugitive, for murder was the British fleet. He imprisoned of South a under warrant of the District Judge Charleston months, when the Carolina, Secretary and.had been six confined a appli- addressed letter to-the mentioning State Judge, President, to the been made Minister had British cation for The letter Bobbins, according treaty. delivery him adpises to deliver requests The President you said— SUFREME .112 On this was up.” District Court on prisoner before the brought corpus, and his case fairly enough
heard, to all from the we now appearance, it; accounts ’ ordered the surrender in the Judge terms: following “ I do therefore order and command the marshal, in whose cus- is, now to deliver tody prisoner said the-body Nathan Robbins, alias Nash, Thomas Consul, British or such per- son he as shall to receive him.” persons appoint The was delivered to detachment of accordingly federal delivered there, surrender; to.aid in the troops and they stationed to an him officer of the British who was navy, ready to receive him on of a war, board vessel of which was carried away. That the order of President, and in aid of Judge'acted by the executive department, never disputed; then administration was defended on the was Pre- ground treaty between compact nations, and be executed might sident and must be throughout; him, thus executed until the courts vested Congress to act in judges power matter; which had not been done that instance. Pet. Ap. 7 Am. 19; Jour. 13. Law subject notice of the House brought Re- presentatives resolutions Congress, Presi- impeaching dent’s conduct in Robbins’s case, and where Mr. Marshall (after- wards Chief Justice of this made a in defence court) speech course, the President’s much then and since, having celebrity for its and astuteness. ability But great majority of this were to the doctrine people country opposed President could arrest, and surrender, imprison, a'fugitive, execute the thereby himself; and were more treaty they still could, to an that he opposed assumption order the courts jus- this, tice mandate, to execute his would destroy independ- ence of the extradition, cases of judiciary, example made similar might precedent invasions in cases other acted ecutive control. and from that this, day judicial power in nases extradition, all others, of ex- independent That the eventful of Robbins’s case had a history controlling influence on our .distinguished when negotiator, 1842 was made; and when it especially Congress, passed is, act doul ... free from suppose, assump- tion of arrest, extrude, on executive war-- imprison, . rants, and the of a act in employment magistrate judicial obedience existed, commands, to the President’s where no independence exist, or could had most aided to overthrow materially - the administration of a revolutionary distinguished patriot, *9 113 re Kaine.
In doubts. no man at fair-minded day whose honesty purpose resolve, before down a firm long had settled Public opinion an made, so engine of 1842 dangerous the treaty executive, as secret oppression them, and arrest, on long warrants founded issuing secret then, ex- warrants, under imprisonments inflicted before an tradition without an unbiased hearing independent never to were dangerous ought highly liberty, judiciary, on be allowed this this country. obviously proceeded Congress and there- when the act passed, opinion, public ob- when seeking referred foreign judiciary fore powers warrant, and secure the commitment fugitive; tain the to be was intended and which independent judicial proceeding action on the and in advance of executive control, of executive construction, and consequent has been case. And such our execu- the act of treaty by under Congress practice, tive to that de- informed, are we application department, afford to a aid the executive will What foreign go- partment. vernment in eases its attorneys, arising through prosecuting itself, treaties, us, acts alto- rests with not with independent judiciary. gether the law is as should' be. judgment, treaty my between the United settled the line jurisdiction dividing America, from the Atlan- the British States and possessions line, On either side of the ocean to the Mountains. tic in Rocky of crimi- ; there an extensive escapes great part, population committed, to from the the crime was nals where are all, if taken at other, must often and. criminals occur; be arrested when must in hot justice. they pursuit, fleeing so, warrant, be at hand to issue the To do must magistrate had If arrest, cause the delared that the President should Congress criminality. adjudge first be through applied his mandate Minister, and then issue British proceed judges most in each would become nugatory west instances and in the entire of country Rocky range this side Mountains, and than hundred miles on for five more could it, of made, arrests western throughout plains, great nor would they attempted. cannot Britain has con- What Great done by legislation, laws. If theirs decision; trol our we must our abide own are violate the inconvenient, supposed spirit ask that it is our they duty government complain, reformed. that, had must There another consideration striking our the act of 1848 was government, passed. when weight own State our citi- and commit arrest Judges magistrates 10*
114= zens, instances, without every exception, grade *10 our State and crime offence Federal de- laws; against they termine the of the commence on to the. prosecutor rights pro- the on ; on the affidavit the warrant sufficiency ceeding founded; on the of arrest is evidence of the after to criminality arrest is made and bail a imprison trial take preparatory Of this there is in court. nor dan- complaint, any supposed as habeas oppression, corrects ger- promptly all then, should a criminal be irregularities. Why, foreign He, too, more ? dealt benefit of by the writ tenderly every corpus; and furthermore can be arrested own can whereas, our citizens be authority government; arrested at instance of any person affida- making proper vit that the crime had been committed our within jurisdiction. This is to all who men wish to come to it. open No country or demand of a meets question, them at the border. He passport who flees from crimes countries, committed like all others, is nor admitted; can common thief be reclaimed To this effect we have no foreign power. But treaty. is due to our citizens own that should be certainly they pro- tected and those murderers, who against murder; attempt house-burners, robbers, pirates, against That forgers. be extruded, these should ment on demands a foreign govern- where the crime was and there qommitted, punished, due to Such wicked men humanity. dangerous ought.not to remain here. The before us furnishes instance striking our condition dangerous prisoner suc- respect. resisted and evaded cessfully the for execution of on him process civil to which he fled from Ireland, England, and in various as instances, nearly official returns year, on warrant show. And when Circuit Court original heard his tells us that it was be Judge deplored that, the manifestations during argument, crowd to resist thronging detention of prisoner, should the court marshal he could reported the venture to from remove obedience prison, him writ,-without an force; armed heard, and therefore his was case “ he necessity, absence, for fear prisoner’s would rescued from a mob.” law custody It also when warrant of appears, Secretary State delivered he the British had agent, consul and could not account ex- delay, on prisoner, ship belief armed, marshal, of an pressed powerful necessity force, police outward counteract excitement threats rescue.” This case some embarrassed with other considerations. re Kaine. Commissioner committed Kaine who had no is urged because had not been for that specially appointed power, purpose. ment held, The Circuit Court that the order of appoint- order the case of That covered conferred other fugitives. to commit cri- special magistrate authority extent States cases, to the full that the United minal Judges admitted; and that he was have authority, magistrate the United the direct term of the States within government, think. If there was a denied, doubt, cannot of the order of however, as meaning appointment, the defect in several order remedy ways. quite easy commitment amended, made, new might clerks of the Federal Court at New York was one as acting have committed Commissioner; or either might Judges exercise of the But jurisdiction. the defendant in the original order, nor construed -its own will I inter- Court has the Circuit that construction. fere with Commissioners, to. un- however, isIt *11 say, acting proper, terms, is, couched in as this orders of general der appointment, of 1848, executed the act without in its concluding part, now;. until nor has wanted power, any- one supposing they any to the mere made, been end executing special appointment so far as I act, court of the know. by any been done in that it has not safe in judi- quite saying, feel the United States. circuit in cial intent to commit Balfe, that Kaine shot with an The proof if conclusive, murder, competent; beyond controversy, merit, is,- arise whether the that can question the only received Commissioner -Bridgham, of Balfe’s deposition, copy admissible. was evidence what that .there was no It is objected, warrants, to issue was; whether magistrate foreign offences, and of offences.” what grade to take cognizance to held, that was necessary produce The Commissioner office, the Irish held under magistrate the commission contents, that he acted, nor proof publicly to and discharged prove of his official primd the duties evidence being facie that if a acts man character; regularly presumption being, office, he has Meagher rightfully appointed. public his is for- acted, thtis proof the Irish that magistrate proves It is official him. warrant tified by original produced by face. authentic on its Com- before the evidence, was sufficient my There opinion, missioner, character magistrate, establish official and that taken; copy Balfe’s was whom deposition before received, a true Meagher, copy, by properly proved 2d under'the section of the act of 1848. requires, copies shall be certified the hand of the the war- person issuing rant, be true the oath of the proved copies, by party pro- them. think it And I is doubtful whether ducing did Congress not mean to that the official character of the say, magistrate be primá should established deposition certifi- facie cate, without further proof authority. Kaine After had been committed Commissioner, the Circuit Court to, for writs of applied by petition, corpus,and certiorari, to bring up writs were before that court. The issued, and a very thorough examination had of the law and the facts. The court decided was, conimitment respects, con- legal proper, decision, curred with the and ordered the pri- Commissioner’s soner to be remanded to the of the marshal, under custody commitment of the Commissioner. of the District opinion judgment who Judge, pre- sided, are us, before and form part proceedings presented here; and it is due to that able that he jurist say, brought the consideration of the case degree patience, learning, with, met and which no capacity rarely other Judge can without the risk' of error. disregard incurring After this careful consideration of the case, in open the Circuit a second writ of Judge granted habeas corpus, and awarded, the warrant for Kaine’s extradition, .thereby stayed State, and which had been Secretary delivered to the British authorities; matter was again brought at chambers, but not Judge, act," deeming proper adjourned and of diction. him, into this proceeding, presented court; thus we are called presented, on to take juris- could taken of Cognizance matter, on the existed assumption original Circuit but act, on which he did not Judge act; and "the case comes here one of original which we are called jurisdiption, on to *12 exercise and as the Constitution declares that this shall- court in cases like appellate this, it powers, follows that the transfer made must the Circuit is of no by Judge and validity, hold, rejected. . that we thus Foreseeing might Kaine, court, counsel for prisoner, on also moved this peti-’ tion, with the papers proceedings presented Circuit thereto, annexed Judge corpus for writs habeas and certiorari, bring defendant, record from the Circuit decision of end that examined having here. The case has us, on ably before carefully argued (cid:127) behalf of the prisoner; considered anxiously by on its merits; and I every presented, especially ground on. McLean, authorized that- and Grier, am say, Judges' Wayne, that refuse views above we the mo- given, agree the merits. We writ, for on áre not tion disposed, exercise circumstances, to of this court in the the case. Mr. Justice CURTIS. To state on which I rest grounds intelligibly my judgment case,\it
in this to advert to the necessary proceedings by it comes 'before means of us. which a June, 1852, oath, the 14th on was day complaint, .On one of the commissioners Joseph Bridgham, Bsq., presented to take affidavits, &c., Court of Circuit by appointed States, York, United in the District of New charging, Southern Kaine, in that of the of Her Thomas Bri- that part dominions Ireland, tannic called had assaulted one John Majesty, feloniously Balfe, and inflicted him a wound with with intent pistol, him; Kaine, murder that warrant to arrest- for this felony, was issued of the authorized for this by justice peace,'duly but. Kaine fled from took in the purpose, justice, having refuge States, United and was then in the District of New Southern and the describes as the who himself Consul York; complainant, York, of Her Britannic that a New warrant Majesty prays Kaine, be issued to to the end may apprehend pro- take surrender to the authorities of ceedings place Britain, Great States and Great as are between the United required treaty by act Britain, of Congress, passed'to into effect. carry issue, A warrant did Kaine and a took arrested, was hearing was, result of that the.Commissioner ordered place, which committed, Kaine to abide pursuant States, order President United premises. of States, a writ habeas corpus stage was proceedings, issued United Court of the for the South- Circuit ern District of Kaine was New York. brought- court, in which' the then District after a' presided, Judge Prisoner, all the raised objections hearing, upon dismissed, Kaine writ of remanded his arrest marshal, under and. continued the custody On the and 22d Commissioner. process commitment Nelson, Justice to Mr. Kaine day presented of July, at'ch'ambers, Justices Supreme addressed petition is forth, of‘the he sets Court Betts, an ..order made Judge detained custody T852, that his illegal, prayihg 9th detention July, day *13 a into the cause of his com- corpus for writ of inquire habeas mitment. order, under Mr. Justice Nelson made an Upon petition, is as issued, which follows: which writ America, the United States President States Marshal for the Southern District of the 0ther or to York, State New any the cus- person, having persons, — Kaine, Thomas tody greeting: We Kaine, command have the of Thomas you, you body detained, as it is with the said, imprisoned together by-you cause detention, of such whatsoever name imprisonment ' je the,said Kaine má called or before-our Justices charged, chambers, our' Cot rt of the United at his Supreme York, instant, on the 11th New Cooperstown, August, day to do considered, and receive what shall then there be con- the said Thomas Kaine. cerning Witness, one of our Justices of our Esq., Nelson, Samuel Court, said this third hundred and day July, eighteen fifty-two. Busteed, Attorney petitioner. Richard writ, the return of the marshal to this Upon hearing bad, order, which resulted in the made Mr. Justice following Nelson: 11, 1852. At Chambers. August Cooperstown, made the return, marshal within Ordered, that in questions involved in having of the difficult and consequence important it be case, thé heard before all the Justices of the Supreme Court, in bank, at the commencement of the next term thereof; that, time, mean custody remain said marshal. S. Nelson. These are this case the question which have here, brought whether, first is, which arises under these pro- we have to act? ceedings, any power have not. over the my- 'we opinion, Passing question, whether court issue a itself could writ of habeas rightfully corpus Mr. Nelson, -made before Justice shall consider hereafter, I think a of the court in vaca- Judge tion, chambers, at his has no a writ of -power grant out of this or to' make such returnable . term; before himself, and, then if and' into that if he adjourn had in this exerted the writ power, not - this, issued actually writ out court, or upon being which, can take action. process, any It‘is not that whatever doubted, belongs pits tlie. ad writ of habeas cor Supreme subjici- Kaine.
In re (cid:127) endum, is It is clear that no appellate. equally part ap- *14 of this court can be pellate jurisdiction exercised aby single his at chambers. It is also well.settled, that Judge, the question, carpus such writ of habeas shall whether is one issue from this court, which the court before the writ ought pass, issues; allowance of the an writ exercise of limited being appel- late which the court itself jurisdiction, has the only power Peters, 9 Milburn, exert. Ex 704. parte follows, From it also that if these such writ be premises a. court, issued this it cannot be made returnable before a cannot, reason, chambers, for the that he at there exercise Judge, And, it. under this writ does power not any appellate finally, the seal of the bear not tested the Chief Supreme by Justice, clerk, or the act of signed required by by Stat. at but bears the seal Cir- Large, 93,) Congress, (1 York, Southern District of New is tested cuit Court by Nelson, is not clerk, Justice and there- Mr. by any signed fore cannot considered out of court, this or process issuing canwe take which jurisdiction. brethren in the under I concur this my opinion, .with can no order whatever. writ the court pass to consider the made It remains the counsel application by have corpus another writ of habeas Kaine, of court. allowed this by is, we have to act whether un The first question writ, if in der the allowed shown the petitioner. by on this question, There are some bearing principles, are this court has no to issue a settled. That original jurisdiction corpus such a writ of habeas ad and can subjiciendum, grant and con writ in exercise of its appellate jurisdiction, only means of it, can revise only sequently, by which, tn which, over respect those tribunals it.has an been so decided control, repeatedly uniformly appellate here, settled. must considered finally they Marbury Bollman, 4 Cr. Madison, 100, 101; 1 Cr. 175 Ex v. Ex parte 7 Peters, 3 38; Watkins, 193, Wheat. Ex parte parte Kearney, Peters, 568 ; Cohens Wheat. 264; S. C. 7 Osborn v. Bank v. State 6 Virginia, Ex 9 738; United Wheat. parte x Peters, Howard, 627; E Madraza, 7 That Barry, parte (cid:127) error, means control, such no an appeal, exercised court a Commissioner, can be over this proceeding, act under the an under color acting authority Congress, no has power any authority, ,.er his consi In Ex to revise clear. equally proceedings, way a writ Howard, was determined that (5 Metzger, 176,) parte allowed, could not to examine a commitment re Kaine. between chambers, á District (cid:127)by treaty Judge, United States for the reason that the France, Judge, commitment, exercised a authority, special ordering had of his the law ment. The sioner. Not of made the revision no judg 'provision action of this'Commis reason same applies the revision law made provision for only does but, speaking, acts by strictly States.’ exercise part power Judicial That can be appointed by Judges, exerted their offices the consent of President, Senate,'holding fixed salaries. vior, beha (cid:127)during receiving (Constitution, good Justice 3, art. of Mr. Chief Taney, sec. 1.) language Ferreira, Howard, the the United States v. 48,) (13 speaking a District Secretary exercised powers Judge, describes cor under the with Spain, Treasury, a Commissioner as of such nature of rectly, “ The conferred Con acted the case before us. powers *15 are, true, it is as the the Judge, Secretary, gress upon well For discretion must in their nature. judgment judicial of-them. But it is not either judicial, both be exercised by is which power granted by in' the sense case, judicial States.” of the United the courts to Constitution then, case, did in this not, exercise Since, the Commissioner States, of the United and no of tne- power any part judicial to law transfer the case on 'has mode which provided n States, United court of the and thus into acted bring this court can that ease under the have judicial power, appel- cannot late control over because extend it; power appellate established courts, áction of inferior by Congress beyond take, Constitution, to original jurisdiction.under then, As it is exercise therein conferred. judicial plain, power a that to writ of revise the Commissioner by and not corpus, habeas exercise of original, of would we recurs whether can' jurisdiction, inquiry appellate grant for the decision of the writ of Circuit revising purpose corpus made habeas of writ issued court. This, the cases court provided appellate power only 159; United 3 Cr. Moore, States v. Durousseau by Congress. v. 6 Cr. United 307. We must of Congress, therefore find,.in power some act ' review the simply circuit decision of court remanding _ on a corpus; this writ cannot writ'of otherwise habeas be allowed. of supposed applica- power, grant ble case, to'such fourteenth contained section Act, Stat. which authorizes this 81, at Judiciary (1 Large, ) writs of corpus; issue habeas and the question is¡¡ “ to issue a tbj whether writ grant power examine into the cause of' is a commitment,” grant decision review Circuit Court. particular conferred, As the arises from the only jurisdiction issue the writ, consequent authority proceed it, of the writ must limit: the exigency necessarily jurisdic- extends, tion. So as the far involved in this subject-matter exists, and no further. That the cause of the commitment.” So subject-matter that we must ascertain whether the decision of the Circuit Court is the cause of the commitment. it is, If we juris- diction to it; not,-then into if it inquire decision is not within writ, of this forms no of its exigency part subject- matter, and is riot within our control. appellate (cid:127) To determine whether decision of Circuit Court is the have cause of the commitment -in this it is necessary before us the acts distinctly which have been precise done,' and then to consider their effect. legal On the June, 1852, 29th the Commissioner, after day which have been made mentioned, previous proceedings following warrant the Marshal the Southern District New York: America, States United York,,
Southern of New District ss. In the matter Thomas Kaine. This been heard me, having requisition, Her Esquire, through Barclay, Britannic Anthony Majesty’s York, Port New Consul that the said Kaine be com- for the delivered as a mitted purpose fugitive being made provisions‘of between justice, pursuant Britain, and Great 9th, States August I find evidence against said produced Kaine, adjudge *16 commitment insufficient in his law to on the justify charge murder, had to commit assault intent the crime been within committed the said Thomas Kaine the United States. Wherefore, .order committed, to the pursuant pro- said order abide the visions of the the President in the premises. States York, Given hand and at the seal, under of New this my city June, day 29th ] n s. Joseph (Signed,) Bridgham, [l. United States Commissioner Southern District New York. for to the Marshal of New Directed Southern District York.
VOL. XIV.
In re Kaiire. Kaine was held the marshal, Under this warrant at issued corpus of habeas Circuit Court; time writ by the writ, the return of that several of law questions were raised and Commis- argued, touching sioner, and regularity validity proceedings; Court decision, 9th the Circuit on the gave day July, effect that the Commissioner had and had jurisdiction, and concluded by passing proceeded regularly, following order: . “ the commitment and The court accordingly adjudges in the return for the causes to-the imprisonment prisoner cause forth, are sufficient and war- corpus habeas case set rant detention the marshal. in'law for his Therefore, it is ordered that the writ of habeas and that dismissed, case be corpus allowed prisoner marshal, and continued in the remanded custody "o- under cess.” arrest and commitment aforesaid such his p “the of the commitment” of Is this order Kaine cause corpus ? of a of habeas With within the meaning of those of brethren for the who utmost my opinions respect corrie to that conclusion. it, I cannot It so considered commitment; it is not the cause either me, seems to form. or in in substance substance, it is a refusal to merely In discharge prison- commitment, because cause of er from existing is found sufficient in commitment law. It creates existing cause; it declares the cause to existing new simply Ho commitment, no new issues new makes sufficient. it, for an instrument' but pronounces process valid, the continuance- of the consequently Old process no time commitment Changed. Certainly, legal. custody . into when a court brought ad the return of a he is subjiciendum, upon then until the control of the court; and under but order makes changing custody, .some cases, bail, some admit to The court may, remains. future order for production prison- also take cases, but court makes bail; until' the some er, without - care or either order of the custody, security changing n founded his com- illegality prisoner, mitment, no such continues. custody original order was made. then, Circuit Court created no new cause If, this order of the commitment, commitment, made no new only pro- *17 re
In ICaine. sufficient,, cause the existing existing nounced custody can, that order in substance, cannot how lawful, I be perceive the cause of the commitment Kaine. treated so, form, is it even in form. In Nor, in my apprehension, causes set forth-in the return, first that are court adjudges “ therefore, it is sufficient, ordered, court, that the and, by dismissed, be of habeas in- this writ allowed in the remanded, continued prisoner custody marshal, under such his arrest and commitment by aforesaid process.” rds, This in wo what would precisely clearly expresses, effect the writ habeas corpus, without legal dismissing those do not it can be more words. And I how perceive plainly than of this by order, process expressed language n sufficient, the commitment Commissioner, found being interfered not with. by process iss true, It is the word, remanded, the order contained but in the context, where it it means that the command of stands, the' is no writ the court would exercise longer operative, no that, further control over the and not body prisoner, marshal, out of the he is. recommitted to being custody the, anew, him custody for the are remanded and’continued in words marshal, commitment under his arrest and aforesaid process.” by the same order would have been form,- if point passed Court, it had been found writ, the Circuit on the return of the by under, held color-of was not prisoner that, of the United and therefore under the him Act, the court had to relieve Judiciary .power jbe that, could- not áfter such corpus. habeas an -It contended order, confined order Circuit prisoner order was the cause of his commitment, and that its yet and the in such case the must'have been dismissed, writ remanded. But might put whatever literal interpretation I should be unable to order, find precise wordsiemployed “ ” act the cause of the dismiss- commitment court' corpus,' because the cause of commit- ing ment the the.return is found 'The cause of shown sufficient. is to be looked commitment warrant continued, the decision of a began, that warrant ralid. pronouncing thus I have far considered this question jurisdiction upon those to to me it. remains which seem principles applicable examine decisions of this ascertain former whether the is determined question authority. SUPREME. COURT.
In re Kain-e. *18 are cases There two which been relied on at the chiefly is Ex 3 Cr. 448. Burford, bar. The first As this case parte case bar, facts in common with the it is many necessary to examine it. Without detailing preliminary carefully pro- that it will-be sufficient Burford was commit- say, ceedings, ted-to the the District of jail county Washington, Columbia, a warrant of certain justices-of by peace, “ it did not state some defective,.because was cause cer- good tain, he That the Cir- oath.”' brought supported by a writ of Columbia, Court for the District of habeas cuit upon corpus, and, after a that court passed following hearing, is. order, which, it by given report (cid:127) Cranch, and as its terms seem to me to be I important, Judge record in this court. from the have procured original into John A. Burford was court January 8th, 1806. brought the the the Marshal of the District' Columbia,.agreeably, by instant, this on the 4th with corpus habeas issued by thereto, his commitment annexed habeas cause of (which and cause of commitment are hereunto annexed,) whereupon, heard, and the court have all and by premises being singular that the said John A. Bur understood, order, the court fully and one or ford, enter a himself in $1,000, into recognizance, behavior for one sum, for his more sureties' the like good that be remanded to there to jail, from this day, (cid:127)year be entered into.” remain until recognizance a show, relied decision to This case is upon although case, issue a cannot, court as was held writ of Metzger’s this of the warrant of the corpus to examine the habeas validity such a has, writ, Court Commissioner; if the Circuit by yet, and therefore dis- valid, its it examined validity, pronounced be continued- writ, and missed the ordered court marshal, this may, upon custody if found decision, it, reverse erroneous. corpus, examine case, decision in Burford’s whether "considering Before it consistent re- I think profoundest length, goes case, who sat in that for the eminent say, very judges spect, made, was that'the now it question does not.appear n would or that themselves considered, examined them they - - Indeed, that it that'decision. deemed foreclosed they have would not have that, from the considered, so fact seems to me decision, .when writ at the habeas of. term of'the following for, moved corpus, bring up body James “ — will be Marshall, Said: The whole Alexander, J., C.- subject is the reference novo, de without precedents. up taken in a more wish- this court to motion made solemn ...have to take .to-morrow, when Come you prepared manner 1852.. 125-
In re Káine'. 4 Cr. note. Further the whole ground.” proceedings upon became this motion consequence dis- unnecessary, another but a tribunal; few after, prisoner by charge days Bollman Swartwout, motions in behalf of committed treason, Circuit Court under the court pro- charge to hear to issue ceeded arguments upon jurisdiction Writs, in an elaborate affirmed the judgment jurisdiction examine a the Circuit Court. of commitment cause time doubt, cannot had a cause of at that the further therefore, if question also arisen whether the court had examine Commissioner, after the commitment Circuit Court had cause, reviewed that sufficient, pronounced court would have also de to consider that thought question necessary novo, all its and would not have treated grounds, Burford’s case as a- sufficient basis on which to rest their deci- sion. 'But, as I understand Burford’s it is distin* clearly from the case at bar. guishable The Circuit in that *19 case, did .not dismiss the writ habeas corpus; made an they order it, Burford. That order imprison was,.tbau he be remanded to there to remain jail, should enter into until.he with recognizance, the sum of surety, for his $1000, good behavior for one This order was the year. cause Of commit- ment, and under this order he was held when the writ of habeas corpus issued from this court. It necessarily superseded the order made by justices.of which was, that peace, Bur- should be ford until he should imprisoned recognize sum $4000, to be of surety, behavior good indefinitely. It is true the Circuit Court did not de novo, and proceed thar for this reason their order was held invalid. But the question of jurisdiction depend upon order, validity did.not causes of but invalidity, the fact that simply Circuit Court caused the commitment; and when "it issued an order, in itself, that complete Burford should imprisoned, that order by superseded former order the Justices, the Circuit Court did an act which caused his commitment, and this court might inquire, corpus, into its The distinction validity. a case, between such and one where the Circuit Court dismissed the writ merely of habeas corpus, tois mind clear. my And it must be observed that the is, not question now whether this court treated the act' of the Circuit Court as cause commitment. I have no. doubt did so treat it, they and it seems to have been so considered in cases. subsequent In Ex Watkins, Peters, parte (7 Mr.Justice 573,) Story, reviewing “— cases on' the of habeas subject corpus, In' Ex Bur- says: parte ford, was prisoner under- a commitment custody Court, for Circuit want recognizance giving good behavior, as the court.” So in case, Metzger’s awarded (5 “ Ex How. Mr. Justice McLean Burford says parte 189,) corpus, a habeas on which who had been com- prisoner, district, the Circuit Court in this mitted by discharged, sufficient cause for the commitment.” there being true, that the Burford Was It is imprisonment undoubtedly the Circuit Court, to be under a commitment considered a writ case is an that when of habeas authority prove and that court Court, is Circuit makes an corpus order But returned in the review that order. this court party, imprisoning show not, in- an authority judgment, my did of New York make Circuit of the Southern District Court case, the court did Kaine. In Burford’s order imprisoning from writ, nor refuse to not dismiss discharge which con- Justices, but made an the commitment order the exist- commitment, stituted a new cause of superseded Court held the Kaine’s the Circuit cause. In existing ing refused interfere with it. sufficient, to be cause my these cases are not parallel. judgment, Pet. Watkins, do I consider the case Ex Nor parte (7 572,) It exists in this case. is only be an that jurisdiction authority opinion quote single passage, necessary question aid in that it cannot solving to show ad capias award of I am now considering. satisfaci- the Circuit as the -act of be considered endum, mast under the the court. process issuing being judicial He under that is then in is in process. custody party law, under the award of process by contemplation custody the court.” rested, decision I can find ground bar case at the act of that in in it tending show nothing n of commitment. is the cause Circuit Court *20 (cid:127) the other decisions'of this examine shall not particularly case at from the bar. remote are still more of commitment of is not is, Kaine cause opinion My Commissioner; of and for but Circuit act the this reason of (cid:127) writ must refused. .be refusal which this is another maybe But ground,'on there made on the 9th Circuit Court was decision rested.. The of was issued of a warrant On 17th day of July, day from July. in the State, following which was of Department words: (cid:127)Depártmént Washington, July-17th, State, of — come, greeting': shall presents these To whom Extraordinary E. Whereas, John' Crampton, Envoy TERM,-1852. Queen Her Great Majesty Minister Plenipotentiary Ireland, hath made requisition, conformity Britain and the United States between article
the 10th treaty Britain, criminals, surrender the mutual fugitive Great 1842, for the 9th at August, concluded Washington, day Kaine, Thomas with the crime justice charged delivery murder, to commit in the of assault with an intent county Westmeath, Ireland. been And Thomas Kaine hath whereas, the found said of the United York, within the State of New form, due has, affidavit, and in by proper a Commissioner brought Joseph Bridgham, duly ap- Circuit Court for the Southern the United States pointed by York, circuit, for examination District of New the second intent to commit murder. And said of assault with charge deemed the evidence suffi- Commissioner hath whereas, the said Kaine, of said to authorize the commitment cient has, Thomas. committed him. All of which appears accordingly, to this transmitted copy department. Now, are to of the United States Mar- these require presents York, for the or of shal -Southern District New any other or of said officer Thomas person having charge custody (cid:127)public Kaine, to surrender and deliver him Her toup Anthony Barclay, York, Port Consul at the of New or to Majesty’s Britannic authorized to receive said duly person persons fugitive, conduct him to Britain for trial. Great whereof, name, I have hereunto testimony signed my the seal of this to be affixed, caused Department Washing- A. D. this 17th ton, day July, independence the United States the seventy-seventh. W. Hunter, Signed,
[seal.] Secretary State. Acting(cid:127) face, this warrant is Its recitals regular. Upon perfectly the act forth fact to warrant of extradition, set every necessary act of according Congress. treaty appears, by the return marshal writ issued Mr. Justice writ, before he Nelson, that received that warrant had come had, hands, it, and he obedience to his tendered Kaine to who receive Anthony expressed readiness to him Barclay, while were about'to be made to put arrangements Kaine corpus, the writ issued Mr. shipboard, Justice Nelson; the further execution of the warrant of suspended extra- dition. op This warrant is the extradition final under the process ' and act of When comes Congress. the hands .to *21 128 he holds the marshal, for the the it. purpose executing therefore, Kaine is now held. process, Upon The act of or requires Congress Commissioner, Judge, State certify copy Secretary finding, together him, taken before of all the that a warrant testimony may of the requisition issue authorities of' the upon proper for the surrender of fugitive, foreign government to according of the Such a warrant issued, stipulations treaty. having not and its been considered court any of ori- validity having it is not the exercise jurisdiction, of an ginal appellate power my .judgment to examine a writ its habeas cor- validity by be true pus. that, It if the before the Com- may proceedings void, held must were this warrant also be missioner not,
invalid. But but whether whether this question warrant valid, we have to examine its jurisdiction validity. that, be true if also this warrant were final is- process, Circuit Court, sued and we had to examine power of'a order judgment tó legality which pursuant issued,we also have should habeas corpus, it to examine the a warrant, validity proceed- of executive officers under.it. But this warrant did ings not Circuit nor does the. depend, emanate is it a nor way, upon- authority, legal consequence action of Circuit Court writ of corpus, habeas or in It emanates from any executive, the of the under the proceeding. a-department rests its action this, Commissioner, and over neither can have, court nor has’ it Constitution, laws, jurisdic- any appellate control. Madison, tion or v. 1 Cr. 137. Marbury reason, then, For that if writ of habeas were in this of the think the allowed could not be validity warrant extradition be examined here, I writ should the refused. In the question, whether Court considering Supreme the United States has under the Constitution jurisdiction, laws of the United entertain this I have application, to. felt at not- to be allow liberty judgment my pressed upon by value of writ for, great particular applied pro- of. a review the priety expediency power to. - Courts, Circuit cases judgments affecting* liberty To all citizen. that has been said concerning pre- eminent utility writ assent. corpus, readily it But be remembered, not, must that' here is the real question thiq whether but. used, great shall freely efficiently whether our to this extend appellate large enough The Circuit ease. Court views its own power,,upon inflict, punishment law, but even the only-imprisonment, 1 re Kaine. *22 this court. Even when control death, by without appellate court, which of a circuit by is proceedings it alleged, void, its are coram.non judg- judice is a citizen imprisoned, error here, writ of or no can be final, and relief had by is ment 3 Watkins, 193; Pet. Ex habeas corpus. or parte appeal, Wheat. Ex parte Kearney, do, to be it for would Congress Undoubtedly, competent a cases somewhat like has done in class of this, what it cases 539,) at 29, 1842, Stat. the act of Large, August analogous. By (5 for an is imprisoned when the a government subject foreign and a writ of that act done government, under a court, of this District a habeas issued corpus an by Judge to this Court, and from order to the Circuit appeal Judge, given. expressly cases this class of determine, whether It is to for Congress determines, it so I must Until give the same requires privileges. as, to judg- decision our according my upon jurisdiction, my consideration, be ment, exists, unaffected might if that, writ to it. prayed expedient enlarge My opinion into issued, we have jurisdiction inquire for were should not and conse- cause of shown commitment .the petition, be the writ should refused. opinion upon quently give it to commitment, of the cause deeming sufficiency before us. judicially Mr. Justice NELSON. Kaine of Thomas for the arrest and application delivery Consul, made British on the
was
requisition
originally
York,
Esq.',
at the
before
resident
New
port
Joseph Bridgham,
of New.
a United
District
States Commissioner for
Southern
made,
on the
and,
York. A warrant was issued and the arrest
officer,
return before
an -examination took place
upon
assault,
an
with intent
had committed
charge
fugitive
murder,
Ireland, on
'Baile,
one
the 5th
James
upon
April,
1851. The Commissioner,
hearing
upon
allegation
he be
ordered that
adjudged
proofs,
prisoner ^guilty,
committed,
abide the'order
pursuance
President of the United
then
A
presented
States.
petition
to the
York,
Court for
New
District
Southern
Circuit
holden
á writ
habeas
di-
corpus,
the District
for
Judge,
marshal,
rected
prisoner;
bring up
body
Commissioner,
also
certiorari to the
-bring up
proceed-
that had
him;
taken
full review
ings
place
these
the 9th July,
adjudged
proceedings,
cause,
commitment
ordered
detention were
sufficient
arid
the dismissed,
habeas
In re ICaine.
remanded, and continued in the
marshal,
custody’of
'
said commitment. On the 17th
of these
July, copies
proceed
been forwarded
ings
having
State,
Department
at
Washington,
issued
Acting
bis warrant to the
Secretary
marshal
having
custody
that he be
prisoner, directing
to Mr.
surrendered
Consul,
British
or to
Barclay,
authorized
person
transport
persons duly
to receive the
fugitive
him Great
Britain for trial. On the 22d
July,
me,
presented
petition
chambers, in
my
Cooperstown,
on behalf of the
for a writ of
prisoner,
corpus,
which I
declined
until the whole of
allowing
that had
taken
already
matter were laid
place
before me. Copies
of them were
furnished, and,
examination,
subsequently
satisfied that
being
the Commissioner had no
over
I allowed the writ, on the 3d of
returnable be
August,
fore me, at
chambers, on the
my
month,
11th of the same
*23
which return was made
As
case was one in
accordingly.
the
which I entertained a different
from that of the tribu
opinion
nals before whom the
had taken
not
as
to
proceedings
place,
only
to the
Commissioner,
of the
jurisdiction
but also in
respect
their
of the
and act of
interpretation
treaty,
passed
Congress
and,
it into
as the
effect;
involved
carry
questions
were
con
themselves,
siderable interest of
the
concerned
two
deeply
nations who were
to the
on the return to the
parties
order,
writ I entered an
that the case be heard before
directing
all the
at the
commencement
the next term of this
Judges,
court. The
bench,
case has now been
full
and am
heard in
inclined to
brethren,
concur with
we
entertain
cannot
my
of it
jurisdiction
allowance
writ and adjourn
upon my
ment of the
to be heard in this court. The
proceedings
prac
tice
the
one,
is a familiar
writ,
in the
under this
before
proceedings
Bench,
542,
460,
in
1
606;
Burr. R.
King’s
England.
131;
Habeas
3d
9 Ad. &
Comyn’s
Corpus,
ed.; Bl. Com.
Digest,
731,
case,
Ell.
Leonard Watson’s
the
which furnished
prece
for
That,
dent
me in this
however,
case.
is an
adopted
and, in cases where the court has original
original proceeding;
to hear and
the
return,
determina
matters
jurisdiction
and where
be had
one
either before
hearing may
chambers,
full
Justices,
But,
in
bench.
according
settled
this
can
issue the
course
decisions in
we
writ,
set
matters
forth on the
jurisdiction
entertain
return, States
the exercise
our appellate power. Burford,
17
3 Cr.
Hamilton,
3
Ex
448;
v.
Ex
parte
Dall.
parte
38;
Swartwout,
Ex
7
4
Wheat.
Id.;
parte
Bollman
Kearney,
568;
Ex
3 Pet.
7 Id.
Ex
Watkins,
Metzger,
193;
parte
parte
one of
be
And,
cannot
as
exercised
How.
for a
there
be
distinction be-
chambers,
at-
Justices,
may
ground
this
writ,
under the
court and in the
tween
proceedings,
writ,
before
proceedings
Bench.
issuing
King’s
be
as
it, must
-an
chambers, under
atme,
undoubtedly
regarded
not
exercise of an
in the
appellate
proceeding,
original
power.
one,
be a
for
If this conclusion
sound
repaedy
who ean
must
law
sought
Congress,
defect
as well
in vacation
the writ
issuing
make
as in
for
provision
term, in all cases where this court possesses jurisdiction
citizen to
it. The
entertain
under'
right
proceedings
in case of
writ,
for the benefit of
great
appeal
not
be restricted
restraint of his
an
ought
illegal
liberty,
cases
but,
juris-
time of its
in all other
where
sitting;
be made for insti-
exercised,
should
diction
provision
may
has now pre-
vacation.
prisoner.
proceeding
tuting
for a writ of
cor-
to this court petition,
sented
praying
that he
marshal,
be directed to the
up,
pus
brought
commitment; and, also,
of his
the ground
together
the Circuit
certiorari
bring up
proceedings
that court,
have taken
which disembarrasses
place
re-
-of
to the form of the
case
application;
exceptions
Circuit
turn
marshal and
béfore the
us, on
motion,
now before
-being
preliminary
Court
counsel,
is in a situation to en-
agreement
able
us to
the merits.
express
opinion upon
objected,
(cid:127)that
this court cannot
entertain
even
marshal,
return of
petition,
proceed-
certiorari,
before the Circuit Court to
for' the reason,
ings
that' the
is held
in confinement
appears,
supposed,
under the warrant of the
under the
Commissioner,
order of
court cannot
decision*and
the Circuit
that this
Court;
Commisioner,
reach
review
the'
the'proceedings
*24
virtue of this
the
but
writ,'in
exercise of
appellate power,
ean
reach' and review
and order of the
the
the
and,
Circuit
as the
of
is not
Court;
confinement
prisoner
or in
of
of that
pursuance
court,
the order
the proceed-
under the
cáse
and
writ here would be a
in
The first
ings
nullity.-
was
at
which this question
discussed
counsel
large by
court,
the
were
of Ex
was’that
and Swartwout.
Bollman
parte
They
in
district,
in
from the
confinement
this
under a warrant
Circuit
the
of treason
charge
against
Two
of
States'.
were
the
this court
taken
objections
power
the
issue
that
1st,
writ to
:
it involved
the
bring prisoners
exercise of
Con-
an
not
original jurisdiction,
given by
and,
stitution;
2d, that, if
'it
-the exercise
an
was
appellate
Act,
it was not within
14th section
power,
Judiciary.
which alone
to issue this writ.
authority
Chief
conferred
Marshall,
Justice
delivered the
in
case,
that
who.
ad-
opinion
mitted the
could not be exercised
power
as
ori-
part
court; but.held,
that it
ginal
possessed juris-
diction, as
under this 14th section.
appellate power,
After
argument,,
award the
answering
writ was
power
limited
section to causes
in this
in
pending
in
it was
order to enable
make a
necessary,
it to
final decision'
he
case,
that .the
observed
the section extended
proviso
to the whole of it;
:
follows
proviso
That writs of
corpus
in
habeas
shall*
no case extend to
in
prisoners
color
unless where
in
under or
jail,
they.are
custody
the United States, or are
authority
committed
for trial before some court of the
same,
are
to be
necessary
into court to
brought
testify.
that,
And
the section
reference to this
construing
proviso,
of the court to issue
power
the wait'
extended to
cases
where the
was
of his
under the
prisoner
au-
liberty,
restrained
of the federal
thority
same
government.
principle
derived from
section,
Mr.
as stated
McLean
Justice
“
Ex
Dorr,
In- re Kaine. the Marshalsea. of the commitment is efficacy original this writ while the under it are superseded by proceedings pend and the safe of the under ing, the keeping prisoner entirely and direction of the eourt it, or to the authority issuing which' Bacon, return is made. title Corpus, Habeas B. 12 5 Mod. ; Comyn, title Habeas 22, The v. Corpus; 1 King Vent. Bethel; 330, 346; East, ; 3 156 1 B. Holt, B. & Cr. 358 4 & A. 295. Justice, Chief observed, Bethel, v. when man King comés in habeas the corpus, court, the he by by may be bailed to in determined,' de die till case is diem, appear “ and then he be remanded to same prison. By remarks, are to bail or petition we right,” again discharge in three but is, when we bail de die in days, (that diem) ‘ afterwards remand him, is no for the is remit escape, entry titur,’ and that is a commitment on the old one.” grounded The Circuit Court, in us, the case before after reviewing on the return of the writ, certiorari, and also to the proceedings arrived at the conclusion that and, were they regular legal; — use its own words, (cid:127)“ that the commitment and Accordingly adjudges imprison- ment for the in causes the return prisoner, habeas warrant, corpus, in the case set are forth, sufficient cause and in law for his detention Therefore, marshal. it is ordered by the court that' the writ, &c., dismissed, by pri- soner be remanded, and continued in the of the marshal, custody such his arrest and commitment the aforesaid process,” warrant the Commissioner. meaning original The question is, whether, here the law upon governing, writ of habeas corpus, and I referred, to which upon this o'f the court, the is not held in judgment con prisoner under the is, finement order of the Circuit Court. If he it is hag admitted case, that this court is bound to revise not that.decision. That court only adjudges lawful, commitment and but directs the imprisonment to be remanded, which, Holt, Chief Justice, is a prisoner, says commitment and, one; further, on the old grounded was (which the order he shall be in directs that continued superfluous,) custody, of the marshal,.under the old commitment. How can be said, writ, view of the law governing form of court below, judgment prisoner not confinement but under the under that judgment, simply t process of Commissioner, withou dependence if judgment, But admit I am incapable comprehending. this further refer question, I Will is wanting to Cranch, 448. court, early Burford, .case Ex parte. That this district. commitment magistrates corpus writ habeas case was reviewed on the* Circuit afterwards, a remanded; writ, Court, and issued prisoner from this also th up bringing prisoner, proceed- were before below. This court ings the discharged warrant commitment prisoner, saying the 'cause of commit- magistrates ment —that'the Circuit corrected two of the errors illegal, stating Court had revised the left the rest. magistrates and The us. Here the Circuit Court is not from the one distinguishable has corrected principle, none of the errors of re», Commissioner, but them, if confirmed all of any, marshal. prisoner committed custody of been of inconvenience arise, would if argued great could issue from this court into any part Union to on a that he was bring petition illegally *27 of his under the restrained of the United liberty authority States, as the must be attended with and ex- proceeding delay1 reason of the extent of our pense, by must involved, .great But, territory. that, be remembered in the case of a of 'right property the Union, laws dependent the and decision upon of the it, whom a has been made against party against decision in a State court, however small’the amount in controversyj , tq is entitled to a error writ of this court, to the up bring review, case for the 25th section of same act in which- by. , section this 14th is found. And I am to learn' that yet of the of the citizen is him, not dear to right liberty Constitution, be entitled to with equal guarded care’by laws, as the of right property, notwithstanding supposed been, Such has heretofore seen, as we have inconvenience. in this when with opinion dealing question; writ in n andI will add, Henman, simply Chief Justice language in the case we would Canadian it seems to me prisoners, “that that this with great tampering remedy subject, we did corpus, writ of habeas if that we would abide not say we and deal find, this as it practice with for- has by dealt with.” satisfied, therefore, I am merly this-court to issue the corpus, into to the- inquire below; and, the .commitment as the case is be- whole legality fore motion, us on this by shall stipulations parties, of the questions an examination proceed raised merits. upon It I assumed, may, think, as' an undoubted day, of this that- its tribunals principle government, judicial pos- arrest, sess power surrender a foreign country, justice, authorized fugitives except stipula- tions, and acts in thereof. Congress passed pursuance Whether cpufer Congress could power independently COURT ais ease, not involved in this question treaty, need free to necessarily advised, not examined. If it as-at am was, present that I have found no such say any article Constitution, clause of the States. delegated people body by belongs treaty-making power, alone, and its exercise de- executive dependent upon Senators, the concurrence two thirds of with partment, ana such I think has been the construction practical given the Constitution since the foundation of the We government. look, must therefore, to the Great with provisions the’treaty Britain, and thereof, the act of Congress passed pursuance for the to be exercised in the surrender judiciary of the alleged question, fugitive these provisions act, ascertain and determine whether or below, tribunals who ordered a surrender, are in con- with them, and warranted formity “ it is law. By agreed, the United Her Britannic Ma- States shall, jesty, requisitions them, ministers, mutual upon or.their officers, or authorities, made, deliver respectively justice, who, murder,” &c.; crime persons being charged “ and the and other- of the two respective judges magistrates shall have governments jurisdiction, power, authority, upon oath, made appre- to issue a éomplaint, warrant for the &c. fugitive,” hension In the case us, Her Britannic Consul at the Majesty’s of New York made a requisition and port complaint, before one the United Commissioners, States against fugitive — which, a question warrant was .issued and arrest made, and, after an examination into the- committed, charge, for the surrenderéd. No purpose demand was being made Britain, government, by Great government *28 the surrender. This claiming government and passed by, Consul, made requisition upon the by directly magistrate, on the contended for, that the ground, consent or namely, au- of the Executive is to warrant thority tion regularity, unnecessary the'institu- ; and, in of their proceedings support propriety taken, is position without broadly that, cannot be 'true to the inter- upheld, according of Britain, pretation officer Great any however treaty, inferior, that represents properly sovereign who country, choose to ih prosecute alleged -fugitive making entitled, is requisition, bunals to obedience tri- judicial that if sufficient evidence is purpose, produced arrest, b¿ -them,.to commit, that a'surrender may and, in is made; this such officer on respect, put the footing this who officers of ’.prosecuting are any government, 1 137 Kaine. re a for violation of its institute criminal proceedings to authorized him, the limits of throughout laws; country open to obedience tribunals bound on Union, judicial arrest and commitment. to make the his requisition proofs, to the terms Now, recurring is the upon This argument. were en- such seen, think, that no stipulations it will be treaty or into, either into, to be entered government, tered or intended by two justify proceeding. conferred any authority nations or their them, mutual requisition by upon agree, ” — is, requisi- made officers or authorities respectively or officers ministers the one or its tion m-ade by by government, authorized, the other —the upon upon government, properly all deliver made, justice demand is thus shall up whom the crimes, who with the provided persons charged shall on a words, In other her territories. within sought asylum Britain upon Great demand, made authority and so in ; deliver it shall respect fugitive government, to her. of this a demand upon government inter- when into, exact entered This is the plainly stipulation in between the two nations respect It is compact preted. of criminal concern —the a matter of national offenders punishment — coüld laws and where the party their guilty against whose laws within be tried and punished only into, is the or entered have been violated. duty obligation each is bound nations, or obligation respective duty other fulfilled, and cachis see that it responsible occurs, the a violation. When the requi- case of casus foederis must be made the one nation sition or demand upon our upon And demand other. system government, upon the; President, must be made who charge nation upon relations, and with whom only foreign govern- of all foreign hold communi- authorized, or even any are ments permitted, authorized, a national concern. He alone cation of Constitution, to and enter governments, with foreign negotiate the nation and, into treaty upon obligations binding respect out these questions obligations, arising relating relations, in which other are interested, our governments foreign must made to him. A requisition demand, application therefore, must, under government, treaty any stipu- Executive, lation, made cannot made or in other way. through any department, Judge Marshall, his celebrated the case Jonathan argument Roübins, Britain, who was under the treaty demanded Great 1842, and from 179£>, which this part,of , verbatim, taken almost of the reauisition speaking observes: *29 SUP-SEME 138 “ in its was', nature, demand, case a national That’the made were the nation. The two nations. parties the upon cannot They to come court their a claims, into nor can litigate Of a consequence, decide them. demand is not case of observes, He farther Presi- cognizance.” that judicial of the nation, sole in its relations, dent external organ its, sole with nations. Of conse- foreign representative demand of nation can quence, him.” made on foreign department, he “The which is intrusted Again, says: nation, with the whole tiations of all intercourse of the with the foreign nego- treaties, with the power demanding recipro-
cal article, whieh accountable performance of its nation for the violation and for the nations, engagements foreign violation, from such consequenees seems resulting be intrusted with the execution of a department proper consideration,” that contract, national like under idea of a of a The nation requisition foreign upon judi- another, much more the humble ciary another, upon magistrate as of right, demanding, fulfilment treaty obliga- novel, tions, and one that I would not is certainly willingly one, attribute men who nor distinguished negotiated to the that ratified it. So áii inter- governments extraordinary instrument, unless ought given pretation upon most terms. does plainest imperative injustice great to both consequent it, com- proceedings, nations. the character and one promit dignity demand, making and are the other, disrespectful dangerous shows, citizen. record before us that liberty a requi- sition, with due was made solemnity, Commissioner, in this her Her Britannic Majesty’s government, through Consul, seems 'to tois act imply, magistrate of that rather authority government, than in obedience to would laws own refusal act abe and of casus contempt authority, fcederis aof If further treaty any obligation. argument wanting for for which am interpretation contending, authority Britain, refer to of Great given might act of for Parliament it into providing by execution carrying on her part. Victoria, the 6th and By 7th is enacted, chapter “That, time shall at made requisition any, States, of, and ac- pursuance no- cord! with the the said for delivery any person charged murder, &c., crime of shall be lawful for one Her State, Ireland, Secretaries Majesty’s or, principal Chief of the Lord-Lieutenant of and in Ireland, Secretary *30 re
'.In Kaine. colonies or Her for abroad, the'officer Majesty’s possessions the administering government any colony possession, under his hand and seal, warrant such requisi- signify by made, been so and to tion has of the require justices peace, and officers of and" the several justice, magistrates within juris- dictions, to themselves govern &c.; .and accordingly, thereupon shall be lawful for of the &c.-,to examine any justice peace, oath the upon any person persons, &c. touching charge,” Now, it be seen that, will according interpretation .the Great Britain, for the given treaty by requisition of the must be made the President delivery fugitive upon and its warrant obtained, before government, any magis- her dominion is trate within authorized' to act in the matter. Parliament The act of deals with the treaty regulating of national concern, matter and in to which both nations respect must act in into execution its carrying ; and stipulations after -both have acted, and an obtained for the surrender, that of the can be called into judiciary amI satisfied this is a sound requisition. interpretation and is one, while it secures the of the provisions,' punishment offender, citizens and of the guards subjects respective abuse of the countries against While its exercise any power. under- thus kept -supervision control of the twó there can be no of its governments, danger being perverted, malice and private which purposes revenge, might justly if left to the unrestrained discretion apprehended, officers of either. The construction, subordinate against would refer am contending, I execution of the to treaty and inferior subordinate both agents so far as governments, for, surrender on fugitive, our is concerned the. part, construction, subordinate officer of- understand Great the requisition may'make directly upon Britain magistrate, committal; apprehension and, such commit- upon communicated to ment being government, Secretary issues his warrant State be delivered to the prisoner authorities. And, as I advised, British am that department in the case decided, us, would not government the decision behind of the Commissioner, the- go adjudging Thus, the whole of the guilty. exer- proceeding of this delicate cise if the high power, requisition President, first in -the with, would place, out dispensed pass the hands and of seems beyond control This government. - to' be result American interpretation established. sought that, argued case, in which demand was made the French Metzger’s under the 9,1848, November the Execu- government, tive declined to act until an had application been made to the and that this construction was judiciary, sanctioned the court terms, in that case. The treaty, express requires the requisi- to be tion governments; made through diplomatic agents the respective but that the surrender shall not be made until the' is established crime the laws of the according country is found. In that case, which made fugitive requisition was the Executive France, diplomatic agent who referred to the judiciary. application therefore, was with the of this judiciary, approbation govern-, ment. How formal it was does not in the case. given, appear Executive, same practice in the case of adopted by There, Jonathan Robbins. made Great requisition President, Britain referred the to a Judge *31 the District Court of the United into the facts inquire and 'determine whether or not he was of the offence guilty him; And it is construction, charged against upon given treaties_of the of all our treaty upon'which subsequent seem to have extradition been drafted. The to surren- confided not to the der is Executive under exclusively the nor was under the question, of 1795. On treaty the if made, the President is requisition satisfied, being upon it, evidence the ed for accompanying proper present- aq into the crime' the authorities claim- inquiry charged, are then, the referred and it is fugitive ing judiciary; the of courts or to act and the to take the duty judges proper for' arrest and the The Executive alone steps inquiry. pos- under the Constitution and authority, laws, sesses to de- to a found the foreign power any person liver within States Union, the without intervention of of this the judiciary. the crime, is founded and surrender is upon alleged judiciary the the tribunal to the into appropriate enquire charge. also been inconvenience exist in the great may urged of the apprehension upon construction fugitives pursuit for, the extended consequence contended of frontier line two countries, the time much will be between consumed in the the be requisition making but upon so; This may President. cannot sound that a agree construction the I which of treaty, affords more one' .than a' protection nothing just of the citizen of the abuse liberty against shall personal power, made to convenience; yield suggestions for, us although and even foreigner, may a fit to be to the subordinate and irre- subject given up of the him, it is agents still, not sponsible government claiming to be the same thus to be exercised denied that attempted power, them, in this instancej citizen of equally applicable any TEEM, 1 852.
In re Káine.
besides,
under
like
our
complaint;
country, upon
so far as
respects
laws
government,
principles
system
freedom,
of no
I know
distinc-
personal security
personal
and.
a,n
and the alien who has
asylum
the citizen
sought
tion between
to the act
6th
add, that,
under them. will
according
simply
into effect this
in its
Victoria,
to,
7th
referred
carrying
already
execution,
off
such convenience
treaty,
is
indulgence
of that
as too
subjéets
government
regarded
dangerous
of this
other side
extended
dominions,
within its
residing
after
requisition
boundary.
one
providing'for
then
other,
surrender,
for
provides
government upon
the,two
and other
respective
magistrates
judges
shall have
upon
governments
authority,
jurisdiction,
power,
for
made
oath,
appre-
issue warrant
complaint
hension of-the
upon
made
has been
the requisition
After
fugitive.
our
President,
regards
organ
government
áre thus
relations,
obtained,
means
.the
foreign
is then
the surrender. An application
provided
procuring
made to the
of
judiciary
country,
requisition
n
cases,
as in all other
but,
foreign government,
—
issued in
own
the warrant
authority’
such
pursuance
runs in
name of the President
application,
our treaties
United states. The
act
passed
carry
Congress,
others,
one
effect,
into
and of course this
extradition
among
at this
’takes up
subject
proceedings,
stage
desig-
act,
officers who are authorized to
and pre-
nates
judicial
arrest,
terms, the
to be
scribes, in
pursued
general
steps
and final
of the criminal
commitment for
charge,
examination
the'surrender,
found
evidence
sufficient.
criminality
if
between the
is no
provisions
There
necessary discrepancy
*32
of
one
as
the
act and the
the
govern-
this
ment
requisition
treaty,
defined,
or
the
other
regulated
be
upon
attempted
of
instrument.
the terms
The
but is left
by
regulated
resorted
therefore,
of
to for
must,
the
the
provisions
purpose
treaty
shall
of
made.
I
how that requisition
ascertaining
them,
of
and need not
already
explained my interpretation
in
The
it.
officers
and
judicial
treaty,
designated
repeat
“
are
conferred,
whom jurisdiction
respective-judges
upon
act of
of
two
and other
governments.”
magistrates
out this
designates
carrying
provision,
Congress,
the.Justices
the several
Courts
of
of
District
Supreme
Judges
-
States,
Courts,
several State
the United
of the
of
Judges
to-do,
of the
Commissioners
and
specially'authorized .so
any
“
of
other
the United States. The terms
courts of
magistrates
tlfeir
two
are
indefinite
difficult.in
the”
quite
governments,”
and
an,
sense,
construction.
In
by judicial
enlarged
application
re Kaine.
embrace all the United. States
they
Commissioners
might
Court, who,
the Circuit
under the
act
appointed by
Congress
of the 23d of
are authorized to arrest
persons
August,
States, and
or
crimes
same;
the United
bail the
against
imprison
and; also, all the
of the
of the
justices
peace
several
States,
whom like
the 33d
section
power
conferred
of the
Act of 1789.
I can
Judiciary
hardly suppose
citizen who
this
distinguished
negotiation
represented
government
President,
under whose
or
treaty,
super-
vision it
into,
was entered
the exercise of so
contemplated
high
and
by
delicate
over the
and
citizen,
power
rights
liberty
so numerous a
But,
of the
of-the
body
magistracy
country.
be this as it
the
for the execution of
may, Congress,
providing
“
has declared who shall constitute those
treaty,
before whom
be made for
magistrates,”
application may
arrest and examination, and have confined the
jurisdiction,
courts,
to tiie
several State
Com-
respect,
Judges
missioners
authorized
the courts of
United
specially
States, for the
of that
performance
duty.
neces-
provision
excludes the
the State
sarily
great body
magistrates
United
Commissioners,
States
power to
possessing general
arrest and
States,
commit for offences
United
against
is in no
clause in the
conflict with
but
any
respect
it, and in furtherance
discreet
harmony
proper
execution of its stipulations.
that,
It has been
the State
argued
admitting
magistrates to
under the act
Congress
possess
treaty
power
passed
carry
effect,
into
that act confers
yet
power upon
body
Commissioners,
of United States
authorized to arrest and com-
States,
mit for crimes
act
against
act,
A.
attention
think,
slight
provisions
will
The 1st
refute
such conclusion.
section confers the exercise
any
of the
courts,
under the
treaty, upon
Judges
Federal
courts,
of the State
Commissioners
au-
”
so to
thorized
do
courts of the United States;
by any
the 6th section
That it shall
and
courts of the United
be lawful for
provides
—“
or
them,
to authorize
any
any
as a Commissioner
act
or Commissioners
person
under the
persons
act;
of such
provisions
doings
person
so authorized in
provisions
persons
pursuance
aforesaid, shall be
available
intents
'good
purposes
whatever.”
two
these
them
Taking
provisions together,
construing
of law for
regulation
part
prescribed
carrying
effect,
a Commissioner,
into
I think
competent
plain
matter, must
or authorized
act in the
appointed,
specially
*33
1852.
The first
courts for that
section confines
purpose.
the Federal
the
thus
of
Commissioners
au-
exercise
power
the
specially
sixth
for
the
the
perform
provides
thorized
duty;
of
in the
them,
declares that their doings
appointment
valid'. How
law,
shall
conformity
good
premises,
be said that
exercise of a
thus
guarded
can
power
conferred,
restricted,
and in the
both
grant
appointment,
act,
a different
also,
of officers
appointed
body
duties,
and for other
and limited
I admit
my
beyond
special
if
act of
it is
that
But
comprehension.
cannot
Congress
urged
be derived
construed as
conferring
may
power,
a rule of the
Commissioner, under
of this
appointment
States,
Circuit Court of
United
January,
adopted
Court and
rule
the clerk
the Circuit
That
that
provides
Commissioner
Court, and their
deputies, (the
District
District Court;,)
á
of the Clerk
deputy
question being
shall
Court;
ex
Commissioner of the Circuit
.and
officio
all
be authorized to execute
shall
powers,
pe'rform
several acts of
enumerating
duties conferred
Congress,
is not
the act
the one in
but which
them,
question,
to such
act of
relation
included, or
any
Congress having
officers,
Commissioners, and their duties or
These
powers.”
se-
authorized,
the Circuit
are
thus
appointed
enumerated,
cases;
to take affidavits and bail
civil
veral acts
and commit for
arresr
offences
and to
and
against
clause of the
the latter
other duties
rule
for
provides
performance
that
be conferred
them
any
Now it is
unless it can be
acts of
shown
Congress.
apparent,
act of
confers
act under
power
treaty
officers,
the extradition
these
clause in
fugitives upon
has
case;
rule
and that no
application
mistaken,
if
act,
been conferred
I am not
greatly
of the court
demonstrated. The rule
adds
has been already
in favor
argument
nothing
upon
into
power,
depends
the act of
for
provides
Congress
carrying
effect, and which confers the
Commis
power only upon
sioners,
Federal courts for this
specially appointed by
pur-
the arrest of the
treaty provides
alleged fugi-
pose.
surrender,
tive,
for the
of a
shall be
and commitment
purpose
made,
as,
such evidence of
“upon
according
criminality
so
the laws
where the
place
charged
fugitive
person
found,
shall be
would
and com-
apprehension
justify
trial,
if
crime
there
mitment
or offence had
committed.”
'
ex-
act of
makes
on this
Congress
subject,
no provision
evidence
as it
cept
respects-
admissibility
species
.
*34
York,
which will be noticed hereafter. The laws New
fore,
there-
arc
or Commissioner
govern
regulate
Judge
in
of the
as
hearing
prisoner,
determining
criminality
he was found in that
This would be so even
jurisdiction.
without the
of the
mode
specific provision
treaty,
only
in
criminal
before the Federal
proceeding,
summary
to the
before the State
magistrates,
according
practice
magis-
trates in
Judiciary
cases.
analogous
section of the
thirty-third
Act of 1789,
that
expressly provides
summary pro-
for
ceedings against
crimes committed
persons
against
United States, shall be
to the usual mode of
agreeably
process
offenders in the State
against
not aware of
accords with the construction
in
be found.
I
which
am
.may
'
other act of
on the
This
any
subject.
Congress
.
to the
the act of
in
given
Parliament, 6th and 7th Victoria, which
requires
production
as,
such evidence
laws
that
of her
according
part
found,
dominions where the
would
Majesty’s
justify
his
trial,
and committal
if
apprehension
the crime had been
there committed.
Yorlr,
the laws-of New
According to
regulat-
these
cases,
ing
in criminal
evidence is
summary proceedings,
heard, as well on
him,
behalf of the accused as
against
should have been so heard in this case. The 2d section of the
act of
into effect the
that on
Congress,
provides
carry
upon
arrest,
return of the warrant of
hearing
copies
in
depositions
warrant
upon
original
any
such
of
have been
under the hand
foreign country may
granted,
warrant,
or
and attested
person
persons issuing
the oath of the
them, to be true
party
copies
producing
depositions,
received
evidence of the
original
may
so
criminality
person
apprehended.”
This
of evidence is
species
loose
unsatisfac-
exceedingly
it
viewed;
in which
can be
but
it
tory,
aspect
any
certainly
cannot
as evidence of
unless
any
characterized
description,
in the
the
of the
appears
magistrate
foreign country taking
warrant,
had
depositions
jurisdiction
issuing
case, and was
these acts. Unless the
competent
perform
exists, the acts are coram non
void. And
authority
j-udice,
rule
universal,
or
in the case of
magistrates,
of limited or
a
persons
right
special jurisdiction,
setting
party
any
under,
or title
or
virtue of, their acts
proceedings,
first
must
show
or
jurisdiction
possessed
affirmatively
they
to act in
the matter. The
is never
pre-
sumed. These are
too familiar to
a
require
reference
principles
proved,
authorities..
person'tak-
Ireland,
ing
depositions
warrant,
acted
issuing
justice
and,
that affords
contended,
peace;
TERM,-
In re Kaiñe.
but
office,
his
also of
evidence not
appointment
assent to
his
cannot
this doc
the competency
jurisdiction.
of a
duties
I admit
that evidence
exercising
trine.
person
fact,
officer,
and even
dis-.
reputation
public
if there is
proof
appointment,
regular
pense
as to the
his
extent of
powrer
authority,
proof
it be
question
will
if,
be sufficient.
in addition to the
But
appointment,
his
evidence
neither
comes
necessary
jurisdiction,
give
evidence of the
furnishes
office,
reputation,
acting
Notes,
281;
432,
280,
450 C. & Hill’s
fact. 1
Ev.
Phillips,
law,
If a
can
found
Ia re Kaine. Of the accused, the arrest authority but what Commissioner, oral depended upon testimony officer, of this Consul, of what had statement to him in been the matter. The Consul does not represented him, facts aver stated in what he calls his any the Commissioner, within requisition were his own know upon Even the derived from the ledge. authority attempted Under of State in Ireland, the oral Secretary depends upon assert, statement of this the witness; and I do so police I know oc place responsibility belougs my casion, that there is not one word or scintilla evidence in the Commissioner, record the accused in this case has tried and but adjudged depends guilty, entirely the oral examination of this exclusively upon police foreign officer, who does not that he had know-« pretend personal commission of His the- the crime. the ledge knowledge onl yextends to the verification taken copy deposition before a Ireland, of whose to take it person we tHose know To familiar the criminal laws of nothing. evidence, need country, say against any per son offence with an laws, our would be inad against charged worthless, so, missible and- under the utterly laws especially York, of the State óf New which must .in un govern less act so, otherwise regulated Congress equally within sound construction act my judgment, for the providing of these aof taken before admissibility copies deposition, the foreign magistrate. I have thus over the case much more it than I should gone large have deemed it were not for the necessary, great very diversity *36 of in to it brethren. I opinion respect among my regarded aas case of the considerable from deli- importance, of the the involved in the of which cacy power provisions we are called to but also from the upon interpret, principles foundation, the which the concern lying rights liberty of the citizen of United States. cannot the I but think every of denial the the writ in this of corpus, power grant case, is calculated shake of deci- the of a decided line authority long this court, 1795, from case, Hamilton’s down sions to the one. That aiid case, as understood present expounded the in the of which Boliman and received Swartwout, in court, most deliberate the consideration of the doctrine held in Hamilton’s that this case was applied, great was writ of the 14th within the the under cognizance section of all cases Act, where the Judiciary prisoner or under, restrained of the of his color authority of the liberty, case has since that United and no held the States,” contrary 1852. 147 re Kaine. decided in decision, Metzger, with the exception alone, but which dis stated, stands 1847, which, have already the court in admits the and jurisdiction power tinctly justly regarded before us. This writ always case' in the and undoubtedly, civil stable bulwark of liberty; be he hands of firm and independent judiciary, person, restraint, or de alien, or .citizen can be illegal subjected of the land. to the law of his except according prived liberty, of the citi of the rights So essential to the security personal writ, of this and effect zen operation uninterrupted that even Congress founders of the Republic, regarded by invasion, or of rebellion when, in cases it, cannot suspend except I'cannot, therefore, consent it. require safety public may court conferred or limit the upon cripple authority con and narrow it, to issue technical Constitution and laws the free and to follow but, on the ; struction contrary, prefer with it when dealing interpretation always given, enlarged derived. it has been courts from which country England, the exercise of the liberally benignly power They expound all unlawful im favor of the deliverance subject restrained of his and, appeal when ; liberty, may prisonment couj't into to inquire common-law highest kingdom, deal it. do the courts So England cause liberally the- with the is its and so unrestricted favor of this writ, operation the deci security rights subject, personal the return to it, one or upon refusing sion magistrate second, is no bar issuing to discharge prisoner, court or or third, more, juris magistrate having by any and it remand case, discharge, according diction its 9 679; M. & the same matters. 13 upon Welsby, judgment, 5 Salk. 503 M. East, 91; 14 Id. & 731; 314; Ellis, &Ad. satisfied, that whole, I am 47. Upon Welsby, and act of without under the Congress, is in confinement treaty therefore, thát the I am lawful opinion, authority. case, to issue in bring pri of habeas should soner. no jurisdiction ground judiciary possesses On for the under apprehen- to entertain treaty without previous fugitive, sion and committal alleged Britain, Great authority made requisition, the States, obtained President of. the purpose. in this is not Commissioner, United States 2. That within offieer or act whom Congress, of crimi- conferred, question hear and determine *37 to made. the surrender which nality, upon re Kaine. 3. That evidence there was no Com- competent if he to issue the
missioner, warrant. possessed power, And the Circuit Court these to have dis- Upon grounds, ought instead of him into charged and its decision court, prisoner, remanding custody, the case is a review subject'of this proper virtue of corpus.
Mr. Chief Justice TANEY. I concur in with brother Nelson. questions opinion my involved in ones; are I should very application grave have felt it to be to state the on which my duty grounds my formed, has been had not the whole been so subject opinion and, mind, discussed him. But, fully satisfactorily my do, said, as I in all that he has I shall forbear concurring, any! discussion on entire assent to and content myself my part, expressing my just he has delivered. the opinion Mr. Justice DANIEL. question just disposed involving liberties, lives and of those who from abroad seek the ‘lives liberties laws, under our .and of our own protection but n citizens, one most can undoubtedly important of our claim government' every department. vigilance this vital own views of ques- my Having deliberately compared so brother with what has been well Nel- tion expressed by my it, do, as. I in all that he has said son, éoncurring, more than thus to attest to do deem unnecessary solemnly law, adherence justice, great principles liberty my him. vindicated by
Order. On df the for writs of habeas consideration petitions in this and of the certiorari, filed arguments ordered, nowhere had, considered, counsel thereupon —It be, court, that writs prayed adjudged same be, and the denied; are and that the said hereby, petitions .same dismissed. are hereby,