Ex parte Kaine.

grounds upon which these conclusions were arrived at have been stated at large elsewhere, and I shall not, on the present occasion, repeat them. They are such as would have satisfied my mind, beyond all question or doubt, had it not been for the different opinions entertained by four of my learned brethren, for whose judgment I entertain a sincere respect. Those opinions, however, not being the opinions of a majority of the Court, and there having been a dismissal of the case without any decision upon the merits, I am left to follow out my own convictions and conclusions, in the final disposition to be made of it; and, being satisfied of the soundness of them, I must enforce them, till I am otherwise authoritatively instructed.

The practice of delivering up offenders charged with felony and other high crimes, who have fled from the country in which the crime has been committed into a foreign and friendly jurisdiction, is highly commendable, and sanctioned by the usages of international law. At the same time, it is a delicate power of Government, which should be limited, and guarded with great care, to prevent abuses, and be exercised with the utmost deliberation and caution. The difficulty of entering into treaties for this purpose arises out of the character of the criminal codes of different nations, both as it respects the acts made penal by law, and the degree and mode of punishment annexed to offences. An enlightened nation, with a criminal code ameliorated by the advance of civilization, would not enter into a treaty with a barbarous one, whose code was bloody and cruel. And, even among enlightened nations, the stipulations for surrender are cautiously limited to a few specified crimes, of atrocious character, against persons and property. The Treaty of November 19th, 1794, (8 U. S. Stat. at Large, 116, 129), between this country and Great Britain, was confined to the crimes of murder and forgery. The present one of 1842 is more comprehensive, though still restricted, as is also the Treaty with France, of November 9th, 1843, (8 U. S. Stat. at Large, 580, 582). Mr. Jefferson, in 1793, in a letter in reply to a

1

Ex parte Kaine.

demand by the French minister for the surrender of fugitives, observed: "The evil of protecting malefactors of every dye is as sensibly felt here as in other countries, but, until a reformation of the criminal codes of most nations, to deliver fugitives from them would be to become their accomplices."

Another objection to entering into these treaties is the difficulty of guarding against the abuse arising out of demands for the surrender of political offenders, under the form of some of the crimes enumerated in the treaty. In most instances, perhaps, of political offences, the acts, detached from the political character of the transaction, would bring the case within some of the offences enumerated; and, unless the Government upon whom the demand is made takes the responsibility of distinguishing between the two, the treaty obligation would require the surrender. The surrender, in such cases, involves a political question, which must be decided by the political, and not by the judicial, powers of the Government. It is a general principle, as it respects political questions concerning foreign Governments, that the judiciary follows the determination of the political power, which has charge of its foreign relations, and is, therefore, presumed to best understand what is fit and proper for the interest and honor of the country. They are questions unfit for the arbitrament of the judiciary-especially so for the subordinate magistrates of the country. These questions, growing out of political offences, greatly embarrass governments in canvassing the policy and expediency of entering into treaties of extradition, and, when they arise, are calculated to endanger the authority and force of such treaties. It was the apprehension of the people of this country, at the time, that the offence of Jonathan Robbins, who was delivered up under the Treaty with Great Britain of 1794, was a political offence, which prevented a renewal of the stipulations from that time down to the present Treaty of 1842, as it was claimed that he was an American citizen, and had been impressed on board of a British vessel, and that the crime

Ex parte Kaine.

was committed in rescuing himself from the hands of his oppressors. Assuming such apprehension to have been well founded, the intense public indignation that followed was creditable to the nation.

These considerations, thus briefly stated, (for I have not the time to enlarge upon them), show that treaties of extradition involve, in the execution of them, great national questions, which should be referred, in the first instance, to the political power of the nation, and which, under our system of government, belong to the Executive, as the head of the nation, to decide. The instances of political offences, in which demands may be made by one nation upon another for a surrender of the offender, are by no means imaginary or cases of no practical application. The history of the times informs us that, at this day, more than one Government on the Continent of Europe is agitated with apprehension and alarm on this subject, and from which even the Government of England seems not to have been entirely free. And, in our own country, how many political offenders, who have sought an asylum here from the disastrous struggles for liberty in the other hemisphere, might be pointed out, some of whom even might be the subject of a requisition under the very Treaty in question.

These are some of the considerations that strongly urge the interpretation of the Treaty before us for which I have heretofore contended, and the result of which has been already stated, and which is the one given to it by Great Britain in providing for its execution on her part. The demand by this Government for the surrender of the fugitive must be first made directly upon that Government, and its consent and authority be obtained, before the judiciary can be called into requisition. In my judgment, this is a sound construction of the language of the Treaty, and carries out the intention and policy of the high contracting parties. The case immediately before me may be one of comparative unimportance, as the fugitive demanded is an obscure and humble individual, and may even be the proper subject of surrender, under the

Ex parte Kaine.

Treaty. But I cannot forget that the principles and rule of construction to be applied to him will be equally applicable to the case of a demand for the surrender of a political offender, and to all other cases falling within its provisions. I am, therefore, not at liberty to distinguish it, whatever may be the supposed merit of the application. I think the requisition should have been made, in the first instance, upon the Executive, and his authority obtained, in order to warrant the interposition of the judiciary; and further, that the Commissioner before whom the application was made, possessed no jurisdiction of the case, not being an officer within the Treaty or the Act of Congress passed in pursuance thereof; and that the evidence in the case, upon which the offence was found, was incompetent, and hence did not warrant the finding of the magistrate. The proof, in all cases under a treaty of extradition, should be, not only competent, but full and satisfactory, that the offence has been committed by the fugitive in the foreign jurisdiction-sufficiently so to warrant a conviction, in the judgment of the magistrate, of the offence with which he is charged, if sitting upon the final trial and hearing of the case. No magistrate should order a surrender short of such proof.

The result is, that the prisoner is entitled to be discharged from imprisonment under the warrant or order of the Commissioner, and, consequently, from arrest or confinement under the warrant issued by the acting Secretary of State in pursuance thereof. But, as the discharge is in consequence of illegality in the proceedings under the Treaty, and as the question of surrender is one of which I can entertain jurisdiction, I am ready to hear any further evidence on behalf of the application, which the representative of the British Government may see fit to present.

The counsel for the British Government not being prepared to furnish proof that any authority had been given by the President of the United States for the arrest of the prisoner, he was discharged.

Segee v. Thomas.

LEWIS C. SEGEE

vs.

HENRY THOMAS AND LUCY W. THOMAS, HIS WIFE.

IN EQUITY.

A defendant in a suit in equity, who appears and answers the bill, cannot, on the hearing, object that the bill contains no prayer for process, or that he was not served with process.

Where the defendant in an action at law brought a suit in equity, in the same Circuit Court, against the non-resident plaintiff in that action, to restrain its further prosecution: Held, that service of the subpoena in the equity suit upon the attorney for the plaintiff in the action at law, was a sufficient service to confer jurisdiction.

The question of who are necessary parties to a suit in equity brought by a defendant in an ejectment suit, to restrain its further prosecution, considered. An objection of want of parties must be taken by plea or answer, and the name or description of the parties who should be brought before the Court must be specified. Such an objection cannot be taken at the hearing for the first time.

Under the 34th section of the Judiciary Act of September 24th, 1789, (1 U. S. Stat. at Large, 92), a State statute allowing interested persons to be witnesses is applicable to trials in actions at common law in the Courts of the United States, but not to suits in equity or criminal cases.

Where the order of a Court of Probate in Connecticut, authorizing the sale of an infant's real estate, declared, as a fact, that the notice of hearing required to be given by a previous order of the Court had been given: Held, that, as the Court was a Court of Record, and had jurisdiction of the matter, the order was conclusive as to the fact of the notice having been given, where it was ques tioned in a collateral proceeding.

A Court of Probate in Connecticut was authorized, by statute, to order, for just and reasonable cause, the sale of the real estate of a minor, on application of his guardian, and to empower him, or some other meet person, to convey the same, on giving bond with surety, and was required, on application for such order, to cause notice of the application to be published in a newspaper. A petition being presented October 31st, the Court made an order assigning the 27th of December for its hearing, and directing the notice prescribed by the statute to be published. Nothing further was done by the Court till the 26th of February following, when the guardian gave the necessary bond, and the order of sale was made: Held, that it was to be presumed, that the determination of just and reasonable cause was made by the Court on the 27th of December, and that the time between that and the making of the order of sale was occupied in procuring a person to make the conveyance and in perfecting the bond; and that the order of sale was valid.