In re Thomas Kaine an Alleged Fugitive from Great Britain/Opinion of the Court

'The marshal having made the within return, Ordered that, in consequence of the difficult and important questions involved in the case, it be heard before all the Justices of the Supreme Court in bank, at the commencement of the next term thereof; and that, in the mean time, the prisoner remain in the custody of the said marshal.'

A motion was made in this court for a certiorari, to bring up the proceedings of the Circuit Court, when holden by Judge Betts, which were printed, and ready to be used if the writ should be ordered.

In this condition of the case, the court passed the following order.

On consideration of the petition filed in this cause yesterday, and of the arguments of counsel thereupon had, as well in support of the application as against it, it is now here ordered by the court, that counsel have leave to argue the following questions, to wit:

1. Has this court jurisdiction upon the case, as certified by Judge Nelson?2. Can a certiorari issue to bring up the proceedings in the Circuit Court?

3. Assuming the court to have jurisdiction, and the proceedings in the Circuit Court to be legally before this court, is the party entitled to be discharged?

And it is further ordered by the court, that the same be, and hereby are, set down for argument on the first Monday of January next.

The unusual length of the opinions delivered by the Judges prevents the Reporter from inserting the arguments of counsel, which he would wish to do.

The case was argued by Mr. Busteed and Mr. Brady, for the petitioner, no counsel appearing on the other side.

As the opinions refer to a particular part of the proceedings and evidence below, it is necessary to insert the following.

''Warrant. To John M. Higginson, Esq., Sub-Inspector, and his Assistants, this to execute''.

Whereas, complaint on oath has been made before her majesty's justices of the peace, of and for the said county of Westmeath, at Ballinlober, on this day, that one Thomas Kane did, at Cooleen, in said county of Westmeath, on this fifth day of April, instant, feloniously and maliciously fire a pistol, loaded with powder and lead, at one James Balfe, with the intent to murder him, and did then and there wound the aforesaid James Balfe:

These are, therefore, in her majesty's name, to charge and command you, immediately on receipt thereof, to apprehend and bring before some of her majesty's justices of the peace, of and for said county, the body of the aforesaid Thomas Kane, to answer the complaint, and to be further dealt with according to law.

Given under my hand and seal, this 5th day of April, 1851.

JAS. FEATHERSTON, J. P. [SEAL.]

To Sub-Constable Martin Meagher and his lawful assistants, this warrant legally to execute.

J. M. HIGGINSON, 3d S. I.

MOATE, 5th April, 1851.

Endeavored to execute same on the 11th and 12th of April, '51, at Liverpool, without effect.

MARTIN MEAGHER, A. C. Endeavored to execute this warrant on the night of the 29th instant, with J. M. Higginson, Esq., S. I., and party; did not succeed.

JAMES GREEN, Head Constable.

Do. do. on the 7th June, 1851. MOATE, May 30th, '51.

J. G., H. C.      This warrant endeavored Endeavored to be executed       to be executed on

on the 6th July, '51, bythe morning of the

JAS. MOORE, C.    16th November, '51,

without effect.

Do. Oct. 16.}

Do. do. 28. }     Endeavored to execute

Do. Nov. 10, '51. M. M., A. C.this warrant on Thos.

Do. Nov. 25, '51. J. MALON, S.C.. Kane, night of the 29th

Do. No. 29, '51. A. C. MEAGHER      Feb., '52, without

and party. effect.

Do. Dec. 21st. M. COSTIGAN, C. Endeavored to execute

Do. do. 27th. this warrant, night

Do. do. 12th Jan'y, '52. of the 13th March,

A. C. MEAGHER and party. '52, without effect.

Do. 22d Feb., '52. M. COSTIGAN, Const.

By Sub-Inspr. and party.

Whereas, proof upon oath hath this day been made before me, one of her majesty's justices of the peace for the said borough, that the name, James Featherston, to the within warrant subscribed, is of the handwriting of the justice of the peace within mentioned. I do hereby authorize Martin Meagher, who bringeth to me this warrant, and all other persons to whom it was originally directed, or by whom it may lawfully be executed, and also all constables and other peace officers of the said borough of Liverpool, to execute the same within the said late mentioned borough.

Given under my hand, this 11th day of April, 1851.

R. E. HARVEY.

The information and complaint of James Balfe, of Shurock, farmer, taken 5th day of April, in the year of our Lord 1851, before the undersigned, one of her Majesty's justices of the peace in and for said county of Westmeath, who saith, that on this day, (the 5th day of April,) I was ploughing near that part of the land of Cooleen, in said county of Westmeath, which land a man named William Stones had lately been dispossessed of, and about which he had frequently threatened me, and told me a few days since that I might sow it, but that I should not live to reap it. Saith, about the hour of 12 o'clock at noon, on said day, a man named Thomas Cain, or Kain, came up to me when I was ploughing, armed with a case of pistols. On coming up to me he said to me, 'God save you; are you Peter Balfe?' I said, don't you know well I am not, Tom. He then asked, is that Stones' land? I said not; that it was the other side of the ditch. He then asked me, was I warned to have nothing to do with it, (Stones' land,) and I said not, except what I heard from Stones. He then said he came to warn me, and asked had I a prayer-book. I said not. Well, I have one myself; and he took both pistols in one hand, and took a prayer-book out of his pocket and threw it on the ground towards me. I stooped to take it up, and while stooping he fired one of the pistols at me; and on examining my person, I found the mark of a bullet and twenty-seven grains of shot in my side, just under my left arm. He was so close that the powder discolored my coat, and some of the said shot marks was on my left arm. I then jumped up and ran away, and he followed me some distance; he then turned back towards the horses, and I went into John Mularney's house, and sent for the horses. I saw no more of him. I knew him well for some years back, and I kept his prayer-book.

JAMES his X mark. BALFE.

Sworn before me the day and year first mentioned, at Ballentubbe, in said county of Westmeath, this 5th day of April, 1851.

JAMES FEATHERSTON, H.

I certify that the information, copied on the other side hereof, is the original deposition upon which the original warrant has been issued by me for the apprehension of Thomas Kain, charged with shooting at James Balfe, of Shurock, in the county of Westmeath, with intent to murder him, the said James Balfe; and I further certify, that the said copy at the other side hereof is a true copy of said original deposition.

Dated the 25th day of May, 1852.

JAS. FEATHERSTON, H.

One of her Majesty's Justices of the Peace of the county of Westmeath, in Ireland.

Witness present-MARTIN MEAGHER, A. C.

The following opinion was delivered by Mr. Justice CATRON, in which Mr. Justice McLEAN, Mr. Justice WAYNE, and Mr. Justice GRIER, coincided. Mr. Justice CURTIS delivered a separate opinion, and Mr. Chief Justice TANEY, Mr. Justice DANIEL, and Mr. Justice NELSON, dissented.

Mr. Justice CATRON.

The facts adduced on the part of Kaine, the applicant for our interference, show that a complaint was made out in due form by counsel, at the instance of the British government, through its agents, to secure the surrender of the fugitive; and that Mr. Barclay, the British Consul at New York, was specially employed, by direct authority of the British Minister, accredited to this government, to take the proper steps, according to the tenth article of the treaty of 1842; and furthermore, an officer of the Irish constabulary, who was able to identify Kaine, had been sent to Mr. Barclay, with letters from the British Home Department, to assist in the prosecution.

In pursuance of this authority, Mr. Barclay made the necessary affidavit, and caused Kaine to be arrested and brought before Joseph Bridgham, Esquire, a commissioner appointed by the Circuit Court of the United States, for the Southern District of New York; who reports the principal facts presented to him, as having occurred in Ireland, as follows: 'The original warrant in this case was issued by James Featherstonhaugh, Esq., a justice of the peace of the county of Westmeath, Ireland, in which county the alleged crime was committed. The warrant was produced before me, together with a copy of the information or affidavit upon which said warrant was issued, said copy being certified according to the act of Congress, by the justice of the peace, who issued the warrant, and attested by the oath of the witness to be a true copy. James Balfe, the witness who made the information or affidavit, states, among other things, 'that on the 5th day of April, 1851, he was ploughing some land in the county of Westmeath, when Thomas Kaine came up to him, armed with a case of pistols, and after some conversation respecting some land, of which a man named Stone had lately been dispossessed, and respecting which the witness had been threatened, said, that he came to warn the witness Balfe about it, and asked if he, witness, had a prayer-book; witness said that he had not; Kaine then said that he had one himself, and threw it on the ground before the witness, who stooped to pick it up; that while stooping, Kaine fired one of the pistols at him, and that on examining his person he found marks of a bullet and twenty-seven shot in his side, just under his left arm; that he then fled, and that Kaine pursued him some distance, but finally turned back, and witness saw no more of him.'

'Upon this information the said Featherstonhaugh, justice of the peace for the county of Westmeath, granted his warrant, for the apprehension of Thomas Kaine, the prisoner, upon complaint on oath, made before him, that the prisoner had feloniously and maliciously fired a pistol, loaded with powder and lead at the said James Balfe, with intent to murder him. This warrant, dated April 5, 1851, was immediately put into the hands of one Martin Meagher, constable of Westmeath, who made search for the prisoner and was unable to find him, or to execute the warrant. The said Meagher was produced before me, as a witness, and testified, among other things, that he was acting constable of the Irish constabulary, of the county of Westmeath, in Ireland, and had been such constable for several years; that he knew Thomas Kaine, the prisoner, and had known him for three years and upwards; that he had received, as such constable, the warrant before mentioned, to execute against the prisoner; that it was the original warrant; that he saw James Featherstonhaugh, the magistrate, execute it, and that he knew said Featherstonhaugh to be a justice of the peace of the county of Westmeath, in Ireland.'

The case presented to us shows that the facts here stated are correctly made. Nothing is found in the proceedings before us, from which it appears that our government took any step to aid the British authorities in arresting and committing Kaine. And the Attorney-General declined to appear, on the part of the United States in this court, in opposition to this motion; nor did counsel appear on behalf of the British government, the argument before us being on behalf of the fugitive only.

On the foregoing state of facts the question arises, whether the United States Commissioner had power and jurisdiction to proceed without the previous authority of his own government.

Several obscurities in our extradition treaties with Great Britain and France were supposed to require legislation, on the part of Congress, to secure their due execution, and accordingly the act of August 12, 1848, was passed. By its provisions, the Judges of the Supreme Court, and those of the District courts of the United States, the Judges of the several State courts, and also Commissioners appointed for the purpose by any of the courts of the United States, are severally yested with power and jurisdiction to act, on complaint made under oath, charging a person with having committed any of the crimes enumerated within the foreign jurisdiction; and to issue a warrant for the apprehension of the person charged, so that he may be brought before such Judge or Commissioner, to the end that the evidence of criminality may be heard and considered; and if it be deemed sufficient to sustain the charge, under the provisions of the treaty, then it is made the duty of the Judge or Commissioner, to certify the fact of sufficiency, together with a copy of all the testimony taken before him, to the Secretary of State, so that a warrant may issue by the Executive, on the requisition of the foreign government, through its proper authorities, for the surrender of the fugitives. And the person charged shall be committed to jail, and there remain under the warrant of the Judge or Commissioner until the surrender shall be made.

That an Executive order of surrender to a foreign government is purely a national act, is not open to controversy; nor can it be doubted that this executive act must be performed through the Secretary of State by order of our Chief Magistrate representing this nation. But it does not follow that Congress is excluded from vesting authority in judicial magistrates to arrest and commit, preparatory to a surrender.

The treaty with Great Britain is equally binding on us as the act of Congress, and it likewise confers jurisdiction and authority on the judges and magistrates of the respective governments, to issue warrants for the apprehension of fugitives; and for hearing and considering the evidence produced against them; and also provides, that the committing magistrate shall certify as to the sufficiency of the evidence, to the executive authority, so that a warrant of surrender may issue. But we are here more particularly considering the first and third sections of the statute; they are merely explanatory of the treaty, and altogether consistent with it. Congress was scrupulously careful, neither to limit or extend the treaty stipulations. According to the terms of the statute, no doubt is entertained by me, that the judicial magistrates of the United States, designated by the act, are required to issue warrants and cause arrests to be made, at the instance of the foreign government, on proof of criminality, as in ordinary cases when crimes are committed within our own jurisdiction, and punishable by the laws of the United States.

But it is insisted that, as these acts, in cases of fugitives, must be done in conformity to a treaty of one nation with another, and as a nation can only act through the supreme Executive authority, representing the nation, the Judges and Commissioners have no power to take the first step without being authorized to do so by the President, who represents the nation; and that the agents of the foreign nation have no right to call on our judicial officers to act, in advance of authority from the President.

On the other hand, it is supposed that the judicial magistrate proceeds in obedience to the treaty and act of Congress, by which he is invested with power to determine, independent of the President's commands, on the authority of those who apply to prosecute the fugitive; and that he must decide for himself, before the warrant issues, whether the prosecutor has the authority of his nation to demand the warrant, either from official station, or by special deputation, in some satisfactory form, so that oppression of the party accused will be avoided.

That the British Consul in this instance had the authority of his government to demand the arrest and commitment, cannot be doubted; nor that the British government was, and now is, seeking the surrender.

Two acts of Parliament have been passed to carry the treaty of 1842 into effect in the British dominions; one in 1843, and the other in 1845; the authority of which is invoked as expressing the true construction of the treaty. They require one of the principal secretaries of state in England, if the fugitive is found in England, or the chief Secretary of the Lord-Lieutenant of Ireland, if the fugitive is found there, or if found in a colony abroad, the officer administering the government of the colony, to signify that the requisition has been made, and to require all magistrates and officers of justice within the jurisdiction where the requisition is made, to aid in apprehending the person accused, and committing him for the purpose of being delivered, according to the provisions of the treaty.

The British acts confer authority to arrest and commit, on judges of courts, and also on justices of the peace, and inferior police magistrates. Our act of Congress excluded justices of the peace and inferior magistrates, and limits the power to the Judges of the United States courts, and to Commissioners appointed for the purpose by them; and to the respective State Judges. And these, as already declared, are, in my opinion, authorized to proceed without a previous mandate from the executive department. Nor can I see any good reason why it should be otherwise. The judicial magistrate is bound to decide on the sufficiency of the affidavits on which the warrant of arrest is founded, and compelled to determine on the right to further prosecute, in every step of the proceeding; and why he should not have power to decide on the prosecutor's authority to institute the proceeding, it is difficult to perceive.

The people of this country could hardly be brought to allow an interference of the President with the Judges in any degree. The experiment was made during Mr. Adams's administration, in 1799, and signally failed. Jonathan (or Nathan) Robbins had been arrested as a fugitive, under the 27th article of Jay's treaty, for murder in the British fleet. He was imprisoned at Charleston under a warrant of the District Judge of South Carolina, and had been confined six months, when the Secretary of State addressed a letter to the Judge, mentioning that application had been made by the British Minister to the President, for the delivery of Robbins, according to the treaty. The letter said-'The President advises and requests you to deliver him up.' On this authority the prisoner was brought before the District Court on habeas corpus, and his case fairly enough heard, to all appearance, from the accounts we now have of it; and the Judge ordered the surrender in the following terms: 'I do therefore order and command the marshal, in whose custody the prisoner now is, to deliver the body of said Nathan Robbins, alias Thomas Nash, to the British Consul, or such person or persons as he shall appoint to receive him.'

The prisoner was accordingly delivered to a detachment of federal troops stationed there, to aid in the surrender; and they delivered him to an officer of the British navy, who was ready to receive him on board of a vessel of war, in which he was carried away.

That the Judge acted by order of the President, and in aid of the executive department, was never disputed; and the then administration was defended on the ground that the treaty was a compact between nations, and might be executed by the President throughout; and must be thus executed by him, until Congress vested the courts or judges with power to act in the matter; which had not been done in that instance. 5 Pet. Ap. 19; 7 Am. Law Jour. 13.

The subject was brought to the notice of the House of Representatives in Congress, by resolutions impeaching the President's conduct in Robbins's case, and where Mr. Marshall (afterwards Chief Justice of this court) made a speech in defence of the President's course, having much celebrity then and since, for its ability and astuteness. But a great majority of the people of this country were opposed to the doctrine that the President could arrest, imprison, and surrender, a fugitive, and thereby execute the treaty himself; and they were still more opposed to an assumption that he could order the courts of justice to execute his mandate, as this would destroy the independence of the judiciary, in cases of extradition, and which example might be made a precedent for similar invasions in other cases; and from that day to this, the judicial power has acted in cases of extradition, and all others, independent of executive control.

That the eventful history of Robbins's case had a controlling influence on our distinguished negotiator, when the treaty of 1842 was made; and especially on Congress, when it passed the act of 1848, is, as I suppose, free from doubt. The assumption of power to arrest, imprison, and extrude, on executive warrants, and the employment of a judicial magistrate to act in obedience to the President's commands, where no independence existed, or could exist, had most materially aided to overthrow the administration of a distinguished revolutionary patriot, whose honesty of purpose no fair-minded man at this day doubts. Public opinion had settled down to a firm resolve, long before the treaty of 1842 was made, that so dangerous an engine of oppression as secret proceedings before the executive, and the issuing of secret warrants of arrest, founded on them, and long imprisonments inflicted under such warrants, and then, an extradition without an unbiased hearing before an independent judiciary, were highly dangerous to liberty, and ought never to be allowed in this country. Congress obviously proceeded on this public opinion, when the act of 1848 was passed, and therefore referred foreign powers to the judiciary when seeking to obtain the warrant, and secure the commitment of the fugitive; and which judicial proceeding was intended to be independent of executive control, and in advance of executive action on the case. And such has been the construction, and consequent practice, under the act of Congress and treaty by our executive department, as we are informed, on application to that department. What aid the executive will afford to a foreign government through its prosecuting attorneys, in cases arising under treaties, rests with itself, and not with us, as it acts altogether independent of the judiciary.

In my judgment, the law is as it should be. The treaty of 1842 settled the dividing line of jurisdiction between the United States and the British possessions in America, from the Atlantic ocean to the Rocky Mountains. On either side of the line, in great part, there is an extensive population; escapes of criminals from the jurisdiction where the crime was committed, to the other, must often occur; and if criminals are taken at all, they must be arrested in hot pursuit, when fleeing from justice. To do so, a magistrate must be at hand to issue the warrant, cause the arrest, and adjudge the criminality. If Congress had delared that the President should first be applied to through the British Minister, and then issue his mandate to the judges to proceed in each case, the treaty would become nugatory in most instances; and in the entire range of country west of the Rocky Mountains, and for more than five hundred miles on this side of it, throughout the great western plains, no arrests could be made, nor would they be attempted.

What Great Britain has done by its legislation, cannot control our decision; we must abide by our own laws. If theirs are inconvenient, or supposed to violate the spirit of the treaty, it is the duty of our government to complain, and ask that they be reformed.

There is another striking consideration that must have had weight with our government, when the act of 1848 was passed. Judges and State magistrates arrest and commit our own citizens, without exception, in all instances, and for every grade of crime and offence against our State and Federal laws; they determine on the rights of the prosecutor to commence the proceeding; on the sufficiency of the affidavit on which the warrant of arrest is founded; on the evidence of criminality after the arrest is made; and imprison or take bail preparatory to a trial in court. Of this there is no complaint, nor any supposed danger of oppression, as the writ of hubeas corpus promptly corrects all irregularities. Why, then, should a foreign criminal be more tenderly dealt by? He, too, has every benefit of the writ of habeas corpus; and furthermore can only be arrested by the authority of his own government; whereas, our citizens can be arrested at the instance of any person making the proper affidavit that the crime had been committed within our jurisdiction.

This country is open to all men who wish to come to it. No question, or demand of a passport meets them at the border. He who flees from crimes committed in other countries, like all others, is admitted; nor can the common thief be reclaimed by any foreign power. To this effect we have no treaty. But it is certainly due to our own citizens that they should be protected against murderers, and those who attempt to murder; and against pirates, house-burners, robbers, and forgers. That these should be extruded, on the demands of a foreign government where the crime was committed, and there punished, is due to humanity. Such wicked and dangerous men ought not to remain here. The case before us furnishes a striking instance of our dangerous condition in this respect. The prisoner successfully resisted and evaded execution of process on him by the civil authority in England, to which he fled from Ireland, for nearly a year, and in various instances, as the official returns on the original warrant show. And when the Circuit Court heard his case, the Judge tells us that it was to be deplored that, during the argument, the manifestations by the crowd thronging the court, to resist the detention of the prisoner, should be such that the marshal reported to the court he could not venture to remove him from the prison, in obedience to the writ, without an armed force; and therefore his case was heard, from necessity, in the prisoner's absence, for fear 'that he would be rescued from the custody of the law by a mob.'

It also appears, that when the warrant of the Secretary of State was delivered to the British consul and agent, he had to delay, and could not ship the prisoner, 'on account of the expressed belief of the marshal, of the necessity of an armed, or powerful police force, to counteract outward excitement and threats of rescue.'

This case is embarrassed with some other considerations. It is urged that the Commissioner who committed Kaine had no power, because he had not been specially appointed for that purpose. The Circuit Court held, that the order of appointment covered the case of fugitives. That the order conferred on this special magistrate authority to commit in all other criminal cases, to the full extent that the United States Judges have authority, is admitted; and that he was a magistrate of the United States government, within the direct term of the treaty, cannot be denied, as I think. If there was a doubt, however, as to the meaning of the order of appointment, it was quite easy to remedy the defect in several ways. The order might have been amended, and a new commitment made, as one of the clerks of the Federal Court at New York was acting as Commissioner; or either of the Judges might have committed the defendant in the exercise of the original jurisdiction. But the Circuit Court has construed its own order, nor will I interfere with that construction.

It is proper, however, to say, that Commissioners, acting under orders of appointment, couched in general terms, as this is, in its concluding part, have executed the act of 1848, without any one supposing they wanted power, until now; nor has any special appointment been made, to the mere end of executing the act, by any court of the United States, so far as I know. I feel quite safe in saying, that it has not been done in any judicial circuit in the United States.

The proof that Kaine shot Balfe, with an intent to commit murder, is conclusive, beyond controversy, if competent; and the only question that can arise on the merit, is, whether the copy of Balfe's deposition, received by Commissioner Bridgham, was admissible.

It is objected, 'that there was no evidence what the authority of the foreign magistrate was; whether to issue warrants, or to take cognizance of offences, and of what grade of offences.'

The Commissioner held, that it was not necessary to produce the commission under which the Irish magistrate held office, and acted, nor to prove its contents, proof that he publicly discharged the duties being prim a facie evidence of his official character; the presumption being, that if a man regularly acts in a public office, he has been rightfully appointed. Meagher proves that the Irish magistrate thus acted, and his proof is fortified by the original warrant produced by him. It is official and authentic on its face.

There was sufficient evidence, in my opinion, before the Commissioner, to establish the official character of the magistrate, before whom Balfe's deposition was taken; and that the copy proved to be a true copy, by Meagher, was properly received, under the 2d section of the act of 1848. It requires, that copies shall be certified under the hand of the person issuing the warrant, and proved to be true copies, by the oath of the party producing them. And I think it is doubtful whether Congress did not mean to say, that the official character of the magistrate should be prim a facie established by the deposition and certificate, without further proof of his authority.

After Kaine had been committed by the Commissioner, the Circuit Court was applied to, by petition, for writs of habeas corpus and certiorari, to bring up the prisoner and proceedings before that court. The writs were issued, and a very thorough examination had of the law and the facts. The court decided that the commitment was, in all respects, legal and proper, concurred with the Commissioner's decision, and ordered the prisoner to be remanded to the custody of the marshal, under the commitment of the Commissioner.

The opinion and judgment of the District Judge, who presided, are before us, and form part of the proceedings presented here; and it is due to that able jurist to say, that he brought to the consideration of the case a degree of patience, learning, and capacity rerely met with, and which no other Judge can disregard without incurring the risk of error.

After this careful consideration of the case, in open court, the Circuit Judge granted a second writ of habeas corpus, and thereby stayed the warrant for Kaine's extradition, awarded by the Secretary of State, and which had been delivered to the British authorities; and the matter was again brought before that Judge, at chambers, but not deeming it proper to act, he adjourned the proceeding, as presented to him, into this court; and of the case thus presented, we are called on to take jurisdiction. Cognizance could only be taken of the matter, on the assumption that original jurisdiction existed in the Circuit Judge to act, but on which he did not act; and the case comes here as one of original jurisdiction, which we are called on to exercise; and as the Constitution declares that this court shall only have appellate powers, in cases like this, it follows that the transfer made by the Circuit Judge is of no validity, and must be rejected. Foreseeing that we might thus hold, the counsel for the prisoner, Kaine, also moved this court, on petition, with the papers and proceedings presented to the Circuit Judge annexed thereto, for writs of habeas corpus and certiorari, to bring up the defendant, and the record from the Circuit Court, to the end of having the decision of that court examined here.

The case has been carefully and ably argued before us, on behalf of the prisoner; and anxiously considered by this court, on every ground presented, and especially on its merits; and I am authorized to say, that Judges McLean, Wayne, and Grier, agree with the views above given, and that we refuse the motion for the writ, on the merits. We are not disposed, under the circumstances, to exercise the jurisdiction of this court in the case.

On consideration of the petitions for writs of habeas corpus and of certiorari, filed in this case, and of the arguments of counsel thereupon had,-It is now here considered, ordered, and adjudged by this court, that the writs prayed for be, and the same are hereby, denied; and that the said petitions be, and the same are hereby, dismissed.