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Ex parte Kaine.

case, and the prisoner discharged on habeas corpus, after a warrant had been issued by the Department of State for his surrender to the British Consul, to

be carried back to Great Britain. Considerations stated, why, under said Treaty, a demand must first be made

directly upon the Government of the United States by the British Government for the surrender of a fugitive, and the authority of the former Government be obtained, before a warrant can be issued by a magistrate for the arrest of the

fugitive. The proof before a magistrate, under a Treaty of extradition, should, to warrant

a commitment by him, be so full and satisfactory as to the commission of the offence charged, as, in his judgment, to authorize a conviction by him if he were sitting on the trial of the case.

(Before Nelson, J., Southern District of New York, April 25th, 1853.)

This was a habeas corpus before Mr. Justice Nelson, at Chambers. The facts are sufficiently set forth in his opinion. For the report of the case in the Supreme Court, see In re Kaine (14 How., 103).

James T. Brady, Richard Busteed, and Robert Emmet, for the prisoner.

Ambrose L. Jordan for the British Government.

NELSON, J. The prisoner was originally apprehended on the 15th of June, 1852, under a warrant issued by Commissioner Bridgham, under the Treaty between the United States and Great Britain, of the 9th of August, 1842, (8 U. S. Stat. at Large, 572), on the application of Mr. Barclay, the British Consul at the port of New York, upon a charge of assault upon James Balfe, in Ireland, with intent to murder. Upon hearing the allegations and proofs, the Commissioner, on the 29th of June following, found him guilty of the charge, and directed that he be detained in custody, in pursuance of the provisions of the Treaty, to abide the order of the President of the United States. On the 1st of July, a writ of habeas corpus was sued out by the prisoner, returnable before the United States Circuit Court for the Southern District of New York, the Honorable Samuel R. Betts, District Judge, presiding, founded upon an alleged illegal detention under the war

Ex parte Kaine.

rant of the Commissioner. Upon a return to the writ by the Marshal, and a review of the proceedings that had taken place before the Commissioner, the Court, after consideration, held them to be legal and valid, and, on the 9th of the same month, dismissed the writ and remanded the prisoner to the custody of the Marshal, under the previous order of commitment by the Commissioner. On the 17th of July following, the proceedings having been forwarded to the proper Department at Washington, the acting Secretary of State issued his warrant, directing that the prisoner be surrendered and delivered

пр to Mr. Barclay, her Britannic Majesty's Consul. At this stage of the proceedings, an application was made before me, at Chambers, for a writ of habeas corpus, to bring up the prisoner, upon an alleged illegal detention and imprisonment, which I refused until the whole of the proceedings that had taken place before the Commissioner and the Circuit Court should be laid before me. These were subsequently furnished, and, upon a full and careful examination, I became satisfied that the Commissioner possessed no jurisdiction over the case, and that the proceedings were, in other respects, irregular and not warranted by law. But, instead of discharging the prisoner, differing in opinion, as I did, from my brother in the Circuit Court, and deeming some of the questions involved of sufficient magnitude and public interest to justify the submission of them to the highest judicial tribunal in the Government, I adjourned the case to the next term of the Supreme Court of the United States, in conformity with the established practice in the King's Bench of England in similar cases. That Court, after argument and due consideration, and for reasons which were satisfactory to me, distinguished the adjournment of the case from Chambers to the term, from a similar proceeding in the King's Bench, on account of the limited jurisdiction of the Supreme Court in respect to original proceedings, their powers being mainly appellate, and consequently dismissed the adjourned case for want of jurisdiction. The case was, however, presented to that Court in another form. An application was made to it directly by the prisoner

Ex parte Kaine.

for a writ of habeas corpus, the application being accompanied by the proceedings that had taken place before the Commissioner and the Circuit Court. But the questions involved failed to meet a judicial determination, in consequence of a serious diversity of opinion among the members of the Court, a majority of my brethren not concurring in the interpretation to be given to the Treaty and the Act of Congress passed in pursuance thereof, nor in respect to the jurisdiction of the Commissioner under whose order the prisoner had been committed for the purpose of his surrender to the British authorities. The application was conseqnently denied, and an order entered dismissing the petition. The case before me, therefore, together with the questions involved on the return of the Marshal to the writ of habeas corpus, which were adjourned to the Supreme Court, having been dismissed for want of jurisdiction, or rather not having been entertained for want of it, necessarily remained for a final hearing at Chambers, as the prisoner was in custody under the authority of that writ, and must continue in such custody until discharged, or else be remanded for the purpose of being dealt with as directed by the former commitment. The hearing at Chambers upon the return was adjourned, accordingly, to the first Monday of this month, and the counsel on both sides, being advised thereof, have appeared and submitted their arguments upon the several questions arising in the case.

The learned counsel appearing on behalf of the British authorities has objected that the decision of Judge Betts, sitting in the Circuit Court, upon the return to the writ of habeas corpus before that Court, it being a Court of competent jurisdiction to hear and determine the question whether the commitment under the Commissioner's order or warrant was legal or not, is conclusive, and a bar to any subsequent inquiry into the same matters by virtue of this writ. I do not so understand the law. The learned counsel has referred to Mercein v. The People, (25 Wend., 64), as an authority. The question in that case arose under the statute of the State of New York regulating the proceedings upon the writ of

Ex parte Kaine.

habeas corpus; and, if the decision there is as supposed, it would not be an authority to govern this case. The question there, however, which arose upon the proceedings of a father to obtain the possession of an infant child from the custody and care of the mother, who had separated from her husband, is not analogous. But the conclusive answer to this objection is, that the proceedings upon this writ in the Federal Courts are not governed by the laws and regulations of the States on the subject, but by the common law of England, as it stood at the adoption of the Constitution, subject to such alterations as Congress may see fit to prescribe, (Ex parte Watkins, 3 Peters, 193; Ex parte Randolph, 2 Brock C. C. R., 447); that, according to that system of laws, so guarded is it in favor of the liberty of the subject, the decision of one Court or magistrate, upon the return to the writ, refusing to discharge the prisoner, is no bar to the issuing of a second or third or more writs, by any other Court or magistrate having jurisdiction of the case; and that such Court or magistrate may remand or discharge the prisoner, in the exercise of an independent judgment upon the same matters. (Ex parte Partington, 13 Mee. & W. 679 ; Canadian Prisoners' Case, 5 Id., 32, 47; The King v. Suddis, 1 East, 306, 314; Burdett v. Abbott, 14 Id., 91; Leonard Watson's Case, 9 Ad. & Ell., 731). In one of the cases referred to, the prisoner had obtained this writ from two of the highest common law Courts of England, and also from the Chief Justice of the King's Bench, at Chambers, in succession, and their judgments had been given upon the cause of his imprisonment; and the learned Judge, in delivering his opinion on the last application, alluding to the decisions on the former writs, refusing to discharge, observed, that this was no objection to the hearing on that occasion, as a subject in confinement had a right to call upon every Court or magistrate in the kingdom, having jurisdiction of the matter, to inquire into the cause of his being restrained of his liberty. The decision, therefore, of the Circuit Court, upon a previous writ of habeas corpus obtained on behalf of the prisoner, refusing to discharge him,

Ex parte Kaine.

will not relieve me from inqniring into the legality of the imprisonment under the order of the Commissioner, upon the present application.

The learned counsel also asked permission to argue the questions arising upon the construction of the Treaty and of the Act of Congress passed in pursuance thereof, and upon the jurisdiction of the Commissioner and the competency of the evidence before him upon which the prisoner was found guilty, inasmuch as those questions had not been argued before the Supreme Court on the side of the British Government, as no counsel appeared, on that argument, in its behalf. The request was readily granted ; and it is a matter of gratification to me, that I have had the benefit of the investigations and views of the learned counsel, in aid of the further consideration which I have been called upon to give to the very important and somewhat difficult questions involved in the final determination of the case. For, although, upon the further consideration of these questions, I am obliged to adhere to the opinions originally entertained, and which have been stated at large elsewhere, I am the more satisfied with their soundness, finding them unchanged after the able adverse argument submitted at the hearing. The opinions referred to, and which were concurred in by two of my learned brethren, the Chief Justice and Mr. Justice Daniel, led to the conclusions: 1. That the judiciary possess no jurisdiction to entertain proceedings, under the Treaty, for the apprehension and committal of an alleged fugitive, without a previous requisition, made under the authority of Great Britain, .upon the President of the United States, and his authority for the purpose ; 2. That the United States Commissioner, Mr. Bridgham, was not an officer, within the Treaty or the Act of Congress, upon whom the power was conferred to hear and determine the question of criminality, upon which determination the surrender is to be made ; 3. That there was no competent evidence before the Coinmissioner, if he possessed the power, to authorize or warrant the finding of the offence charged. As I have already observed, the

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