In re Thomas Kaine an Alleged Fugitive from Great Britain/Dissent Nelson

Mr. Justice NELSON.

The application for the arrest and delivery of Thomas Kaine was originally made on the requisition of the British Consul, resident at the port of New York, before Joseph Bridgham, Esq., a United States Commissioner for the Southern District of New York. A warrant was issued and the arrest made, and, on the return before this officer, an examination took place upon a charge that the fugitive had committed an assault, with intent to murder, upon one James Balfe, in Ireland, on the 5th April, 1851. The Commissioner, upon hearing the allegation and proofs, adjudged the prisoner guilty, and ordered that he be committed, in pursuance of the treaty, to abide the order of the President of the United States. A petition was then presented to the Circuit Court for the Southern District of New York, holden by the District Judge, for a writ of habeas corpus, directed to the marshal, to bring up the body of the prisoner; and also a certiorari to the Commissioner, to bring up the proceedings that had taken place before him; and upon a full review of all these proceedings, on the 9th July, 1852, adjudged that the commitment and detention were for sufficient cause, and ordered that the writ of habeas corpus be dismissed, and the prisoner be remanded, and continued in the custody of the marshal, under said commitment. On the 17th July, copies of these proceedings having been forwarded to the Department of State, at Washington, the Acting Secretary issued his warrant to the marshal having the custody of the prisoner, directing that he be surrendered to Mr. Barclay, the British Consul, or to any other person or persons duly authorized to receive the fugitive and transport him to Great Britain for trial. On the 22d July, a petition was presented to me, at my chambers, in Cooperstown, on behalf of the prisoner, for a writ of habeas corpus, which I declined allowing until the whole of the proceedings that had already taken place in the matter were laid before me. Copies of them were subsequently furnished, and, upon an examination, being satisfied that the Commissioner had no jurisdiction over the case, I allowed the writ, on the 3d of August, returnable before me, at my chambers, on the 11th of the same month, and which return was made accordingly. As the case was one in which I entertained a different opinion from that of the tribunals before whom the proceedings had taken place, not only as to the jurisdiction of the Commissioner, but also in respect to their interpretation of the treaty, and act of Congress passed to carry it into effect; and, as the questions involved were of considerable interest of themselves, and concerned deeply the two nations who were parties to the treaty, on the return to the writ I entered an order, directing that the case be heard before all the Judges, at the commencement of the next term of this court. The case has now been heard in full bench, and I am inclined to concur with my brethren, that we cannot entertain jurisdiction of it upon my allowance of the writ and adjournment of the proceedings to be heard in this court. The practice is a familiar one, in the proceedings under this writ, before the King's Bench, in England. 1 Burr. R. 460, 542, 606; Comyn's Digest, Habeas Corpus, 3d ed.; Bl. Com. 131; 9 Ad. & Ell. 731, Leonard Watson's case, and which furnished the precedent for that adopted by me in this case. That, however, is an original proceeding; and, in cases where the court has original jurisdiction to hear and determine the matters upon the return, and where the hearing may be had either before one of the Justices, at chambers, or in full bench. But, according to the settled course of decisions in this court, we can only issue the writ, and entertain jurisdiction of the matters set forth on the return, in the exercise of our appellate power. United States v. Hamilton, 3 Dall. 17; Ex parte Burford, 3 Cr. 448; Ex parte Bollman and Swartwout, 4 Id.; Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Pet. 193; 7 Id. 568; Ex parte Metzger, 5 How. 189. And, as the power cannot be exercised by one of the Justices, at chambers, there may be ground for a distinction between the proceedings, under the writ, in this court and in the King's Bench. The issuing of the writ, and proceedings before me, at chambers, under it, must undoubtedly be regarded as an original proceeding, and not in the exercise of an appellate power. If this conclusion be a sound one, the remedy for the defect in the law must be sought in Congress, who can make provision for the issuing of the writ in vacation as well as in term, in all cases where this court possesses jurisdiction to entertain proceedings under it. The right of the citizen to appeal to the court for the benefit of this great writ, in case of an illegal restraint of his liberty, ought not to be restricted to the time of its sitting; but, as in all other cases where its jurisdiction may be exercised, provision should be made for instituting the proceeding in vacation. The prisoner has now presented to this court a petition, praying for a writ of habeas corpus to be directed to the marshal, that he may be brought up, together with the ground of his commitment; and, also, for a certiorari to the Circuit Court, to bring up the proceedings that have taken place in that court, which disembarrasses the case of all exceptions to the form of the application; and the return of the marshal and the proceedings before the Circuit Court being now before us, on this preliminary motion, by the agreement of the counsel, the case is in a situation to enable us to express an opinion upon the merits. It is objected, that this court cannot entertain jurisdiction of the case, even upon the petition, return of the marshal, and of the proceedings before the Circuit Court to the certiorari, for the reason, it appears, as supposed, that the prisoner is held in confinement under the warrant of the Commissioner, and not under the decision and order of the Circuit Court; that this court cannot reach and review the proceedings before the Commissioner, by virtue of this writ, in the exercise of its appellate power, but can only reach and review the proceedings and order of the Circuit Court; and, as the confinement of the prisoner is not under or in pursuance of the order of that court, the proceedings under the writ here would be a nullity. The first case in which this question was discussed at large by counsel and by the court, was that of Ex parte Bollman and Swartwout. They were in confinement in this district, under a warrant from the Circuit Court, upon a charge of treason against the United States. Two objections were taken to the power of this court to issue the writ to bring up the prisoners: 1st, that it involved the exercise of an original jurisdiction, not given by the Constitution; and, 2d, that, if it was the exercise of an appellate power, it was not within the 14th section of the Judiciary Act, which alone conferred the authority to issue this writ. Chief Justice Marshall, who delivered the opinion in that case, admitted the power could not be exercised as a part of the original jurisdiction of the court; but held, that it possessed jurisdiction, as an appellate power, under this 14th section. After answering the argument, that the power to award the writ was limited by that section to causes pending in this court, in which it was necessary, in order to enable it to make a final decision in the case, he observed that the proviso to the section extended to the whole of it; that proviso is as follows:

That writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.

And that, construing the section with reference to this proviso, the power of the court to issue the writ extended to all cases where the prisoner was restrained of his liberty, under the authority of the federal government. The same principle is derived from that section, as stated by Mr. Justice McLean in Ex parte Dorr, 3 How. 103-105. 'The power given to the courts,' he observes, 'in this section to issue writs of scire facias, habeas corpus, &c.; as regards the writ of habeas corpus, is restricted by the proviso to cases where a prisoner is in custody under or by color of the authority of the United States, or has been committed for trial before some court of the same, or is necessary to be brought into court to testify. This is so clear,' he observes, 'from the language of the section, that any illustration of it would seem to be unnecessary. The words of the proviso are unambiguous. They admit of but one construction.' If this construction of the section is to be maintained, (and the case Ex parte Bollman and Swartwout was very fully and deliberately considered,) then it is manifest the power to issue this great writ for the security of the liberty of the citizen, is much broader than has been contended for on behalf of the prisoner in the case before us. Hamilton's case, decided in 1795, led the way to the decision in Bollman and Swartwout. That case repudiates the idea, that the power to issue the writ is limited to instances where the proceeding is ancillary to the determination of a suit pending. Hamilton was in jail on a warrant issued by the District Judge, at chambers, upon a charge of treason. Chief Justice Marshall, in Ex parte Tobias Watkins, (3 Peters, 208,) observes that in the case of Bollman and Swartwout, the habeas corpus was awarded on the same principle on which it was awarded in Hamilton's case; and, in Ex parte Kearney, Mr. Justice Story, in stating the points in the case, observes, 'the first is whether or not this court has authority to issue a habeas corpus where a person is in jail under the warrant or order of any other court of the United States.' And then says, 'that it is unnecessary to say more than that the point has already passed in rem judicatam in this court. In the case of Bollman and Swartwout, it was expressly decided, upon full argument, that this court possessed such authority, and the question has ever since been considered at rest.' In the case of Ex parte Watkins, reported in 7 Peters, 568, there is a still stronger exercise of the power to issue this writ. In that case the prisoner was in custody of the marshal under three executions regularly issued out of the Circuit Court, but their efficacy had expired by the neglect of the marshal to bring in the body on the return day. The error or wrongful detention lay wholly with the marshal, and yet this court issued the habeas corpus, and discharged the prisoner. The case stands upon the principle decided in Hamilton's case, and in Bollman and Swartwout, that the writ may issue in all cases where the prisoner is in custody under and by color of the authority of the United States. In the case Ex parte Metzger, the prisoner was committed to the custody of the marshal by the District Judge, at his chambers, under the French treaty of extradition. This court held that they possessed no power to issue the writ of habeas corpus, inasmuch as the order of commitment had been made at chambers and not in court. This case undoubtedly stands alone, and has very much narrowed the power of the court in issuing this great writ in favor of the liberty of the citizen, from that repeatedly asserted in previous cases. But I do not propose to disturb it. For the case before us is within the doctrine of this case, and of every other that has heretofore been passed upon by the court, as I shall proceed briefly to show. The habeas corpus, which was issued in the case before us, by the court below, to the marshal, brought up the body of the prisoner, and also the warrant of commitment, into that court, and the certiorari to the Commissioner brought up the record, or tenor of the record of the proceedings before him, upon which the warrant had issued. The whole case, therefore, was in that court. And pending the examination or hearing, the prisoner, in all cases, on the return of the writ, is detained, not on the original warrant, but under the authority of the writ of habeas corpus. He may be bailed on the return de die in diem, or be remanded to the same jail whence he came, or to any other place of safe keeping under the control of the court, or officer issuing the writ, and by its order brought up from time to time, till the court or officer determines whether it is proper to discharge or remand him absolutely. The King's Bench may, pending the hearing, remand to the same prison or to their own, the Marshalsea. The efficacy of the original commitment is superseded by this writ while the proceedings under it are pending, and the safe keeping of the prisoner is entirely under the authority and direction of the court issuing it, or to which the return is made. Bacon, title Habeas Corpus, B. 12; 5 Mod. 22, The King v. Bethel; Comyn, title Habeas Corpus; 1 Vent. 330, 346; 3 East, 156; 1 B. & Cr. 358; 4 B. & A. 295. Holt, Chief Justice, observed, in the King v. Bethel, when a man comes in by habeas corpus, by the power of the court, he may be bailed to appear de die in diem, till the case is determined, and then he may be remanded to the same prison. 'By the petition of right,' he again remarks, 'we are to bail or discharge in three days, but when we bail (that is, de die in diem) and afterwards remand him, it is no escape, for the entry is 'remittitur,' and that is a commitment grounded on the old one.'

The Circuit Court, in the case before us, after reviewing the proceedings on the return of the writ, and also to the certiorari, arrived at the conclusion that they were regular and legal; and, to use its own words,--

'Accordingly adjudges that the commitment and imprisonment of the prisoner, for the causes in the return to the habeas corpus, in the case set forth, are sufficient cause and warrant in law for his detention by the marshal. Therefore, it is ordered by the court that the writ, &c., be dismissed, and that the prisoner be remanded, and continued in the custody of the marshal, under such his arrest and commitment by the aforesaid process,' meaning the original warrant of the Commissioner.

The question here is, whether, upon the law governing the writ of habeas corpus, and to which I have referred, and upon this judgment of the court, the prisoner is or is not held in confinement under the order of the Circuit Court. If he is, it is admitted by all that this court has jurisdiction of the case, and is bound to revise that decision. That court not only adjudges the commitment and imprisonment lawful, but directs the prisoner to be remanded, which, says Holt, Chief Justice, is a commitment grounded on the old one; and, further, (which was superfluous,) the order directs that he shall be continued in the custody, of the marshal, under the old commitment. How it can be said, in view of the law governing this writ, and of the form of the judgment of the court below, that the prisoner is not in confinement under that judgment, but simply under the process of the Commissioner, without dependence upon that judgment, I admit I am incapable of comprehending. But if any further authority is wanting upon this question, I will refer to an early case in this court, Ex parte Burford, 3 Cranch, 448. That was a commitment by magistrates in this district. The case was reviewed on writ of habeas corpus by the Circuit Court, and the prisoner remanded; afterwards, a writ, issued from this court, bringing up the prisoner, and also the proceedings which were before the court below. This court discharged the prisoner, saying that the warrant of commitment by the magistrates was illegal, for not stating the cause of commitment-that the Circuit Court had revised the proceedings and corrected two of the errors of the magistrates and left the rest. The case, in principle, is not distinguishable from the one before us. Here the Circuit Court has corrected none of the errors of the Commissioner, if any, but confirmed all of them, and recommitted the prisoner to the custody of the marshal. It has been argued that great inconvenience would arise, if the writ of habeas corpus could issue from this court into any part of the Union to bring up a prisoner on a petition that he was illegally restrained of his liberty under the authority of the United States, as the proceeding must be attended with delay and expense, by reason of the great extent of our territory. But, it must be remembered that, in the case of a right of property involved, dependent upon the laws of the Union, and a decision against it, the party against whom a decision has been made in a State court, however small the amount in controversy, is entitled to a writ of error to this court, to bring up the case for review, by the 25th section of the same act in which this 14th section is found. And I am yet to learn that the right of the liberty of the citizen is not as dear to him, and entitled to be guarded with equal care by the Constitution and laws, as the right of property, notwithstanding the supposed inconvenience. Such has heretofore been, as we have seen, the opinion in this court, when dealing with the writ in question; and I will simply add, in the language of Chief Justice Denman, in the case of the Canadian prisoners, 'that it seems to me that we would be tampering with this great remedy of the subject, the writ of habeas corpus, if we did not say that we would abide by the practice we find, and deal with this as it has been formerly dealt with.' I am satisfied, therefore, that this court has jurisdiction to issue the writ of habeas corpus, to inquire into the legality of the commitment below; and, as the whole case is before us on this motion, by the stipulations of the parties, shall proceed to an examination of the questions raised upon the merits.

It may, I think, be assumed, at this day, as an undoubted principle of this government, that its judicial tribunals possess no power to arrest, and surrender to a foreign country, fugitives from justice, except as authorized by treaty stipulations, and acts of Congress passed in pursuance thereof. Whether Congress could confer the power independently of a treaty, is a question not necessarily involved in this case, and need not be examined. If it was, as at present advised, I am free to say that I have found no such power in any article or clause of the Constitution, delegated to that body by the people of the States. It belongs to the treaty-making power, and to that alone, and its exercise is dependent upon the executive department, with the concurrence of two thirds of the Senators, and such I think has been the practical construction given to the Constitution since the foundation of the government. We must look, therefore, to the provisions of the treaty with Great Britain, and the act of Congress passed in pursuance thereof, for the authority to be exercised by the judiciary in the surrender of the alleged fugitive in question, and by these provisions and act, ascertain and determine whether or not the proceedings in the tribunals below, who have ordered a surrender, are in conformity with them, and warranted by law. By the treaty, 'it is agreed, that the United States and Her Britannic Majesty, shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice, all persons who, being charged with the crime of murder,' &c.; 'and the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint, made under oath, to issue a warrant for the apprehension of the fugitive,' &c.

In the case before us, Her Britannic Majesty's Consul at the port of New York made a requisition and complaint, before one of the United States Commissioners, against the fugitive in question upon which, a warrant was issued and the arrest made, and, after an examination into the charge, committed, for the purpose of being surrendered. No demand was made upon this government, by the government of Great Britain, claiming the surrender. This government was passed by, and the requisition made by the Consul, directly upon the magistrate, on the ground, as contended for, namely, that the consent or authority of the Executive is unnecessary to warrant the institution of the proceedings; and, in support of their propriety and regularity, the position is broadly taken, and without which the proceedings cannot be upheld, that, according to the true interpretation of the treaty, any officer of Great Britain, however inferior, properly represents the sovereign of that country, who may choose to prosecute the alleged fugitive in making the requisition, and is entitled to the obedience of the judicial tribunals for that purpose, and if sufficient evidence is produced before them, to arrest and commit, that a surrender may be made; and, that in this respect, such officer is put on the footing of any of the prosecuting officers of this government, who are authorized to institute criminal proceedings for a violation of its laws; that the country is open to him, throughout the limits of the Union, and the judicial tribunals bound to obedience on his requisition and proofs, to make the arrest and commitment. This is the argument. Now, upon recurring to the terms of the treaty it will be seen, I think, that no such stipulations were entered into, or intended to be entered into, by either government, or any authority conferred to justify such a proceeding. The two nations agree, that upon 'mutual requisition by them, or their officers or authorities respectively made'-that is, on a requisition made by the one government, or by its ministers or officers properly authorized, upon the other-the government, upon whom the demand is thus made, shall deliver up to justice all persons charged with the crimes, as provided in the treaty, who shall have sought an asylum within her territories. In other words, on a demand, made by the authority of Great Britain upon this government, it shall deliver up the fugitive; and so in respect to a demand by the authority of this government upon her. This is the exact stipulation entered into, when plainly interpreted. It is a compact between the two nations in respect to a matter of national concern-the punishment of criminal offenders against their laws and where the guilty party could be tried and punished only within the jurisdiction whose laws have been violated. The duty or obligation entered into, is the duty or obligation of the respective nations, and each is bound to see that it is fulfilled, and each is responsible to the other in case of a violation. When the casus foederis occurs, the requisition or demand must be made by the one nation upon the other. And upon our system of government, a demand upon the nation must be made upon the President, who has charge of all its foreign relations, and with whom only foreign governments are authorized, or even permitted, to hold any communication of a national concern. He alone is authorized, by the Constitution, to negotiate with foreign governments, and enter into treaty obligations binding upon the nation; and, in respect to all questions arising out of these obligations, or relating to our foreign relations, in which other governments are interested, application must be made to him. A requisition or demand, therefore, upon this government, must, under any treaty stipulation, be made upon the Executive, and cannot be made through any other department, or in any other way. Judge Marshall, in his celebrated argument in the case of Jonathan Robbins, who was demanded by Great Britain, under the treaty of 1795, and from which this part of the treaty of 1842, was taken almost verbatim, speaking of the requisition in that case, observes: 'That the case was, in its nature, a national demand, made upon the nation. The parties were the two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case of judicial cognizance.' He further observes, that 'the President is the sole organ of the nation, in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him.' Again, he says: 'The department, which is intrusted with the whole foreign intercourse of the nation, with the negotiations of all treaties, with the power of demanding a reciprocal performance of the article, which is accountable to the nation for the violation of its engagements with foreign nations, and for the consequences resulting from such violation, seems the proper department to be intrusted with the execution of a national contract, like that under consideration.'

The idea of a requisition of a foreign nation upon the judiciary of another, much more upon the humble magistrate of another, demanding, as of right, the fulfilment of treaty obligations, is certainly novel, and one that I would not willingly attribute to the distinguished men who negotiated this one, nor to the governments that ratified it. So extraordinary an interpretation ought not to be given to the instrument, unless upon the plainest and most imperative terms. It does great injustice to both nations. The proceedings, consequent upon it, compromit the character and dignity of the one making the demand, and are disrespectful to the other, and may be dangerous to the liberty of the citizen. The record before us shows, that a requisition, with due solemnity, was made upon the Commissioner, in this case, by Her Britannic Majesty's government, through her Consul, and seems to imply, that the magistrate is to act under the power and authority of that government, rather than in obedience to the laws of his own; and that a refusal to act would be a contempt of that authority, and of the casus foederis of a treaty obligation. If any further argument was wanting for the interpretation of the treaty for which I am contending, I might refer to that given by the authority of Great Britain, in providing by act of Parliament for carrying it into execution on her part.

By the 6th and 7th Victoria, chapter 76, it is enacted, 'That, in case a requisition shall at any time be made by the authority of the United States, in pursuance of, and according to the said treaty, for the delivery of any person charged with the crime of murder, &c., it shall be lawful for one of Her Majesty's principal Secretaries of State, or, in Ireland, for the Chief Secretary of the Lord-Lieutenant of Ireland, and in any of Her Majesty's colonies or possessions abroad, for the officer administering the government of any such colony or possession, by warrant under his hand and seal, to signify that such requisition has been so made, and to require all justices of the peace, and magistrates and officers of justice, within the several jurisdictions, to govern themselves accordingly, &c.; and thereupon it shall be lawful for any justice of the peace, &c., to examine upon oath any person or persons, touching the charge,' &c.

Now, it will be seen that, according to the interpretation given to the treaty by Great Britain, the requisition for the delivery of the fugitive must be made by the President upon that government, and its warrant obtained, before any magistrate within her dominion is authorized to act in the matter. The act of Parliament deals with the treaty as regulating a matter of national concern, and in respect to which both nations must act in carrying into execution its stipulations; and it is only after both have acted, and an authority obtained for the surrender, that the power of the judiciary can be called into requisition. I am satisfied this is a sound interpretation of its provisions, and is one, while it secures the punishment of the offender, guards the citizens and subjects of the respective countries against any abuse of the power. While its exercise is thus kept under the supervision and control of the two governments, there can be no danger of its being perverted, to the purposes of private malice and revenge, which might justly be apprehended, if left to the unrestrained discretion of the subordinate officers of either. The construction, against which I am contending, would refer the execution of the treaty to the subordinate and inferior agents of both governments, so far as the surrender of the fugitive, on our part, is concerned; for, as I understand that construction, any subordinate officer of Great Britain may make the requisition directly upon the magistrate, for the apprehension and committal; and, upon such commitment being communicated to the government, the Secretary of State issues his warrant that the prisoner be delivered to the British authorities. And, as I am advised, that department decided, in the case before us, that the government would not go behind the decision of the Commissioner, adjudging the prisoner guilty. Thus, the whole of the proceeding in the exercise of this high and delicate power, if the requisition of the President, in the first place, is dispensed with, would pass out of the hands and beyond the control of the government. This seems to be the result of the American interpretation of the treaty, sought to be established. It has been argued that, in Metzger's case, in which demand was made by the French government, under the treaty of November 9, 1843, the Executive declined to act until an application had been made to the judiciary, and that this construction was sanctioned by the court in that case. The treaty, in express terms, requires the requisition to be made through the diplomatic agents of the respective governments; but that the surrender shall not be made until the crime is established according to the laws of the country in which the fugitive is found. In that case, the requisition was made upon the Executive by the diplomatic agent of France, who was referred to the judiciary. The application to the judiciary, therefore, was with the approbation of this government. How formal it was given, does not appear in the case. The same practice was adopted by the Executive, in the case of Jonathan Robbins. There, on the requisition made by Great Britain upon the President, he referred the case to a Judge of the District Court of the United States, to inquire into the facts and determine whether or not he was guilty of the offence charged against him. And it is upon this construction, given to the treaty of 1795, upon which all our subsequent treaties of extradition seem to have been drafted. The power to surrender is not confided exclusively to the Executive under the treaty in question, nor was it under the treaty of 1795. On the requisition being made, if the President is satisfied, upon the evidence accompanying it, that a proper case is presented for an inquiry into the crime charged, the authorities claiming the fugitive are referred to the judiciary; and then, it is the duty of the courts or judges to act and to take the proper steps for the arrest and inquiry. The Executive alone possesses no authority, under the Constitution and laws, to deliver up to a foreign power any person found within the States of this Union, without the intervention of the judiciary. The surrender is founded upon an alleged crime, and the judiciary is the the appropriate tribunal to enquire into the charge. It has also been urged that great inconvenience may exist in the pursuit and apprehension of fugitives upon the construction contended for, in consequence of the extended frontier line between the two countries, as much time will be consumed in making the requisition upon the President. This may be so; but I cannot agree that a sound construction of the treaty, and one which affords nothing more than a just protection to the personal liberty of the citizen against the abuse of power, shall be made to yield to the suggestions of convenience; for, although the prisoner before us may be a foreigner, and even may be a fit subject to be given up to the subordinate and irresponsible agents of the government claiming him, still, it is not to be denied that the same power, thus attempted to be exercised by them, in this instance, is equally applicable to any citizen of the country, upon a like complaint; and besides, under our system of laws and principles of government, so far as respects personal security and personal freedom, I know of no distinction between the citizen and the alien who has sought an asylum under them. I will simply add, that, according to the act of 6th and 7th Victoria, already referred to, carrying into effect this treaty, the indulgence of any such convenience in its execution, is regarded as too dangerous to the subjects of that government residing within its dominions, on the other side of this extended boundary. The treaty, after providing for the requisition of the one government upon the other, for the surrender, then provides that the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive. After the requisition has been made upon the President, the organ of the government as regards our foreign relations, and his authority obtained, the means are thus provided for procuring the surrender. An application is then made to the judiciary of the country, not upon the requisition of the foreign government, but, as in all other cases, upon the authority of its own-and the warrant issued in pursuance of such application, runs in the name of the President of the United States. The act of Congress, passed to carry our treaties of extradition into effect, and of course this one among others, takes up the subject at this stage of the proceedings, and designates the judicial officers who are authorized to act, and prescribes, in general terms, the steps to be pursued in the arrest, the examination of the criminal charge, and final commitment for the surrender, if evidence of the criminality is found sufficient. There is no necessary discrepancy between the provisions of this act and the treaty, as the requisition of the one government upon the other is not attempted to be regulated or defined, but is left as regulated by the terms of that instrument. The provisions of the treaty must, therefore, be resorted to for the purpose of ascertaining how that requisition shall be made. I have already explained my interpretation of them, and need not repeat it. The judicial officers designated in the treaty, and upon whom jurisdiction is conferred, are 'the respective judges and other magistrates of the two governments.' The act of Congress, in carrying out this provision, designates the Justices of the Supreme Court, the Judges of the several District Courts of the United States, the Judges of the several State Courts, and Commissioners specially authorized so to do, by any of the courts of the United States. The terms 'other magistrates of the two governments,' are quite indefinite and difficult in their application by judicial construction. In an enlarged sense, they might embrace all the United States Commissioners appointed by the Circuit Court, who, under the act of Congress of the 23d of August, 1842, are authorized to arrest persons for crimes against the United States, and imprison or bail the same; and, also, all the justices of the peace of the several States, upon whom like power is conferred by the 33d section of the Judiciary Act of 1789. I can hardly suppose that the distinguished citizen who represented this government in the negotiation of the treaty, or the President, under whose supervision it was entered into, contemplated the exercise of so high and delicate a power over the rights and liberty of the citizen, by so numerous a body of the magistracy of the country. But, be this as it may, Congress, in providing for the execution of the treaty, has declared who shall constitute those 'other magistrates,' before whom the application may be made for the arrest and examination, and have confined the jurisdiction, in this respect, to the Judges of the several State courts, and Commissioners specially authorized by the courts of the United States, for the performance of that duty. The provision necessarily excludes the great body of the State magistrates and of United States Commissioners, possessing general power to arrest and commit for offences against the United States, and is in no respect in conflict with any clause in the treaty, but in harmony with it, and in furtherance of a proper and discreet execution of its stipulations.

It has been argued that, admitting the State magistrates to possess no power under the act of Congress passed to carry the treaty into effect, yet that act confers the power upon the body of United States Commissioners, authorized to arrest and commit for crimes against the United States, under the act of 1842. A slight attention to the provisions of the act, I think, will refute any such conclusion. The 1st section confers the exercise of the power under the treaty, upon the Judges of the Federal courts, and of the State courts, and upon 'Commissioners authorized so to do by any of the courts of the United States;' and the 6th section provides-'That it shall be lawful for the courts of the United States, or any of them, to authorize any person or persons to act as a Commissioner or Commissioners under the provisions of this act; and the doings of such person or persons so authorized in pursuance of any of the provisions aforesaid, shall be good and available to all intents and purposes whatever.'

Taking these two provisions together, and construing them as part of a regulation prescribed by law for carrying the treaty into effect, I think it plain that a Commissioner, competent to act in the matter, must be specially appointed, or authorized by the Federal courts for that purpose. The first section confines the exercise of the power to Commissioners thus specially authorized to perform this duty; and the sixth provides for the appointment of them, and declares that their doings in the premises, in conformity with law, shall be good and valid. How it can be said that the exercise of a power thus guarded and restricted, both in the grant and in the appointment, is conferred, also, upon a body of officers appointed under a different act, and for other special and limited duties, I admit is beyond my comprehension. But it is urged that if the act of Congress cannot be construed as conferring the power, it may be derived from the appointment of this Commissioner, under a rule of the Circuit Court of the United States, adopted in January, 1851. That rule provides that the clerk of the Circuit Court and of the District Court, and their deputies, (the Commissioner in question being a deputy of the Clerk of the District Court,) shall be ex officio Commissioner of the Circuit Court; and shall be authorized to execute all the powers, and perform all the duties conferred by several acts of Congress, enumerating them, but of which the act of 1848, the one in question, is not included, 'or of any act of Congress having relation to such Commissioners, and their duties or powers.' These officers, thus appointed by the Circuit Court, are authorized, by the several acts enumerated, to take affidavits and bail in civil cases; and to arrest and commit for offences against the United States, and the latter clause of the rule provides for the performance of any other duties that may be conferred upon them by any other acts of Congress. Now it is apparent, unless it can be shown that the act of 1848 confers the power to act under the treaty in the extradition of fugitives upon these officers, this clause in the rule has no application to the case; and that no such power has been conferred by that act, if I am not greatly mistaken, has been already demonstrated. The rule of the court adds nothing to the argument in favor of the power, as that depends upon the act of Congress which provides for carrying the treaty into effect, and which confers the power only upon Commissioners, specially appointed by the Federal courts for this purpose. The treaty provides that the arrest of the alleged fugitive, and commitment for the purpose of a surrender, shall be made, 'upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed.'

The act of Congress makes no provision on this subject, except as it respects the admissibility of a species of evidence which will be noticed hereafter. The laws of New York, therefore, are to govern and regulate the Judge or Commissioner in hearing and determining the criminality of the prisoner, as he was found in that jurisdiction. This would be so even without the specific provision of the treaty, as the only mode of proceeding, in summary criminal proceedings before the Federal magistrates, is according to the practice before the State magistrates in analogous cases. The thirty-third section of the Judiciary Act of 1789, expressly provides that summary proceedings against persons for crimes committed against the United States, shall be agreeably to the usual mode of process against offenders in the State in which he may be found. I am not aware of any other act of Congress on the subject. This accords with the construction given to the treaty in the act of Parliament, 6th and 7th Victoria, which requires the production of such evidence as, according to the laws of that part of her Majesty's dominions where the prisoner is found, would justify his apprehension and committal for trial, if the crime had been there committed. According to the laws of New York, regulating these summary proceedings, in criminal cases, evidence is heard, as well on behalf of the accused as against him, and should have been so heard in this case. The 2d section of the act of Congress, to carry into effect the treaty, provides that on the hearing upon the return of the warrant of arrest, 'copies of the depositions upon which an original warrant in any such foreign country may have been granted, under the hand of the person or persons issuing such warrant, and attested upon the oath of the party producing them, to be true copies of the original depositions, may be received in evidence of the criminality of the person so apprehended.'

This species of evidence is exceedingly loose and unsatisfactory, in any aspect in which it can be viewed; but certainly it cannot be characterized as evidence of any description, unless it appears that the magistrate in the foreign country taking the depositions and issuing the warrant, had jurisdiction of the case, and was competent to perform these acts. Unless the authority exists, the acts are coram non judice, and void. And the rule is universal, that in the case of magistrates, or other persons of limited or special jurisdiction, any party setting up a right or title under, and by virtue of, their acts or proceedings, must first show affirmatively that they possessed jurisdiction or authority to act in the matter. The jurisdiction is never presumed. These are principles too familiar to require a reference to authorities. It was proved, in this case, that the person taking the depositions in Ireland, and issuing the warrant, acted as a justice of the peace; and, it has been contended, that affords evidence not only of his appointment to that office, but also of the competency of his jurisdiction. I cannot assent to this doctrine. I admit that evidence of a person exercising the duties of a public officer, and even reputation of the fact, may dispense with the proof of a regular appointment, and if there is no question as to the extent of his power or authority, the proof will be sufficient. But if, in addition to the appointment, it becomes necessary to give evidence of his jurisdiction, neither his acting in the office, or reputation, furnishes any evidence of the fact. 1 Phillips, Ev. 432, 433, 450; C. & Hill's Notes, 280, 281; 3 Wend. 267. If a contrary principle can be found in the law, it is a little remarkable that the rule should ever have obtained that, in an action founded upon the adjudication or decision of a magistrate, or any other officer of special and limited jurisdiction, the party claiming a right under it, must aver and prove jurisdiction in the particular case, for the very adjudication, or decision, would afford all the necessary evidence of the officer acting as such within the principle contended for. In other words, the judgment would afford evidence per se of the jurisdiction, and in all case dispense with further proof, and thus every inferior magistrate would be placed upon the footing of courts of general jurisdiction. I do not think it necessary to pursue this branch of the argument further, and am satisfied that the Commissioner acted, in the arrest and commitment of the prisoner, without any competent evidence of his guilt of the crime alleged against him. To permit the copies as evidence, without proof of the jurisdiction of the magistrate, would be against all principle, and might lead to the most scandalous abuses in carrying into execution the stipulations of the treaty. This species of evidence is very differently guarded, in the act 6th and 7th Victoria. There, copies of the depositions laid before the government, and upon which the proper officer issued his warrant to the magistrates, authorizing them to institute proceedings to arrest and commit the fugitive, are those only permitted to be given in evidence. In other words, copies of the depositions upon which the government acted in the matter, are admissible as evidence of the criminality. The original of these are those upon which our government make the requisition; and, of course, the good faith of the nation is pledged that they were taken before competent officers, and that the facts stated in them were true. But, in the case before us, the copy was taken by a police officer of the foreion country, and produced here before the Commissioners, without the sanction of either government, and without any competent evidence of the authority of the person before whom it was taken. There was no evidence of the authority of this magistrate, or of any authority under the treaty, for the arrest of the accused, before the Commissioner, but what depended upon the oral testimony of this officer, and the statement of the Consul, of what had been represented to him in the matter. The Consul does not aver that any of the facts stated by him, in what he calls his requisition upon the Commissioner, were within his own knowledge. Even the authority attempted to be derived from the Under Secretary of State in Ireland, depends upon the oral statement of this police witness; and I assert, and do so upon the responsibility that I know belongs to my place and the occasion, that there is not one word or scintilla of evidence in the record of the Commissioner, upon which the accused in this case has been tried, and adjudged guilty, but depends entirely and exclusively upon the oral examination of this foreign police officer, who does not pretend that he had any personal knowledge of the commission of the crime. His knowledge only extends to the verification of the copy of the deposition taken before a person in Ireland, of whose authority to take it we know nothing. To those familiar with the criminal laws of this country, I need not say that such evidence, against any person charged with an offence against our laws, would be inadmissible and utterly worthless, and especially so, under the laws of the State of New York, which must govern in this case, unless otherwise regulated by act of Congress; and equally so, in my judgment, within a sound construction of the act providing for the admissibility of these copies of a deposition, taken before the foreign magistrate.

I have thus gone over the case much more at large than I should have deemed it necessary, were it not for the very great diversity of opinion in respect to it among my brethren. I have regarded it as a case of considerable importance, not only from the delicacy of the power involved in the treaty, the provisions of which we are called upon to interpret, but also from the principles lying at the foundation, which concern the rights and liberty of every citizen of the United States. I cannot but think the denial of the power to grant the writ of habeas corpus, in this case, is calculated to shake the authority of a long line of decisions in this court, from Hamilton's case, decided in 1795, down to the present one. That case, as understood and expounded in the case of Bollman and Swartwout, in 1807, which received the most deliberate consideration of the court, and to which the doctrine in Hamilton's case was applied, held that this great writ was within the cognizance of the court, under the 14th section of the Judiciary Act, in all cases where the prisoner was restrained of his liberty, 'under, or by color of the authority of the United States,' and no case has held the contrary since that decision, with the exception of that of Metzger, decided in 1847, which, I have already stated, stands alone, but which distinctly admits the power and jurisdiction of the court in the case before us. This writ has always been justly regarded as the stable bulwark of civil liberty; and undoubtedly, in the hands of a firm and independent judiciary, no person, be he citizen or alien, can be subjected to illegal restraint, or be deprived of his liberty, except according to the law of the land. So essential to the security of the personal rights of the citizen was the uninterrupted operation and effect of this writ, regarded by the founders of the Republic, that even Congress cannot suspend it, except when, in cases of rebellion or invasion, the public safety may require it. I cannot, therefore, consent to cripple or limit the authority conferred upon this court by the Constitution and laws to issue it, by technical and narrow construction; but, on the contrary, prefer to follow the free and enlarged interpretation always given, when dealing with it by the courts of England, from which country it has been derived. They expound the exercise of the power benignly and liberally in favor of the deliverance of the subject from all unlawful imprisonment; and, when restrained of his liberty, he may appeal to the highest common-law court in the kingdom, to inquire into the cause of it. So liberally do the courts of England deal with this writ, and so unrestricted is its operation in favor of the security of the personal rights of the subject, that the decision of one court or magistrate upon the return to it, refusing to discharge the prisoner, is no bar to the issuing of a second, or third, or more, by any other court or magistrate having jurisdiction of the case, and it may remand or discharge, according to its judgment, upon the same matters. 13 M. & Welsby, 679; 9 Ad. & Ellis, 731; 1 East, 314; 14 Id. 91; 2 Salk. 503; 5 M. & Welsby, 47. Upon the whole, I am satisfied, that the prisoner is in confinement under the treaty and act of Congress, without any lawful authority. I am of opinion, therefore, that the writ of habeas corpus should issue in the case, to bring up the prisoner.

1. On the ground that the judiciary possesses no jurisdiction to entertain the proceedings under the treaty for the apprehension and committal of the alleged fugitive, without a previous requisition, made under the authority of Great Britain, upon the President of the United States, and his authority obtained for the purpose.

2. That the United States Commissioner, in this case, is not an officer within the treaty or act of Congress, upon whom the power is conferred, to hear and determine the question of criminality, upon which the surrender is to be made.

3. That there was no competent evidence before the Commissioner, if he possessed that power, to issue the warrant. And

4. Upon these grounds, the Circuit Court ought to have discharged the prisoner, instead of remanding him into custody, and its decision in the case is a proper subject of review by this court, by virtue of the writ of habeas corpus.