In re Thomas Kaine an Alleged Fugitive from Great Britain

ON the 14th of June, 1852, Anthony Barclay, the British Consul at New York, addressed to Samuel R. Betts, Judge of the District Court of the United States for the Southern District of New York, and to any commissioners authorized to perform judicial duties in the matter, a requisition and complaint. It set forth, that it had been represented to Mr. Barclay, and was believed by him, that one Thomas Kane, or Kaine, or Cain, then of Cooleen, in Ireland, did, on or about the 5th of April, 1851, fire a pistol at one James Balfe, with intent to murder him; that a warrant to apprehend him was issued by a justice of the peace, but that said Kaine had absconded and fled to the United States. The requisition further stated, that the crime of which he had been guilty would have justified his apprehension and commitment if it had been committed within the United States. It then asked that a warrant for his apprehension might be issued, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence should be deemed sufficient, that it should be certified to the proper executive authority, in order that a warrant might issue for the surrender of such fugitive, under the treaty between the United States and Great Britain.

The truth of this complaint was sworn to by Mr. Barclay.

Kaine was arrested and brought before Joseph Bridgham, a Commissioner of the United States, at New York.

The case was heard before the Commissioner, who decided, on the 23d of June, that the evidence was sufficient in law to justify the commitment of Kaine, upon the charge of assault with intent to commit murder; and ordered that the prisoner should be committed, to abide the order of the President of the United States.

A writ of habeas corpus was sued out, and allowed by Judge Betts. The writ was returnable to the Circuit Court of the United States; and, on the 3d of July, Judge Betts, the District Judge, then sitting alone in the Circuit Court, decided that the writ should be dismissed and the prisoner be remanded to the custody of the marshal.

On the 17th of July, the Acting Secretary of State issued a warrant, directing the marshal to deliver up Kaine to the British Consul.

On the 22d of July, Kaine presented a petition to Mr. Justice Nelson, at his chambers, praying for a writ of habeas corpus. The petition, although handed to Mr. Justice Nelson, was addressed to the Justices of the Supreme Court of the United States, which was not then in session.

On the 3d of August, Mr. Justice Nelson allowed the writ, and made it returnable on the 11th.

The marshal, in his return, stated the above facts, when, on the same day, Mr. Justice Nelson ordered as follows: