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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. & E1., 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,

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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 grati. fication 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

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 ont 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 anthoritatively 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. lightened 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

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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 anfit 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

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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 inay even be the proper subject of surrender, under the

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