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In re Kaine.
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 marsha!.
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, whs 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:
“ 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 ?
In re Kaine.
2. Can a certiorari issue to bring up the proceedings in the Circuit Court ?
3. Assuming the court to have jurisdiction, and the proceed. ings 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. County of Westmeath, to wit :
Whereas, complaint on oath has been made beiore 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 accordin: 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.
Moste, 5th April, 1851., Endeavored to execute same on the 11th and 12th oi April, '51, at Liverpool, without effect.
Martin MEAGHER, A. C.
In re Kaipe.
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 30ih, '51.
J. G., H. C. This warrant endeavored Endeavored to be executed on the to be executed on the 6th July, '51, by
morning of the 16th NoJas. Moore, C. vember, '51, without efDo. Oct. 16. ,
fect. Do. do. 28. J. G., . C.
Endeavored to execute this Do. Nov. 10, '51. M. M., A. C. warrant on Thos. Kane, Do. Nov. 25, '51. J. MALON, S. C. night of the 29th Feb., Do. No. 29, '51. A. C. MEAGHER °52, without effect. and party.
M. CostiGAN, Const. Do. Dec. 21st. M. Costigan, C. Endeavored to execute this Do. do. 27th.
warrant, night of the Do. do. 12th Jan'y, '52.
13th March, '52, withA. C. MEAGHER and party. out effect. Do. 22d Feb., '52. By Sub-Inspr. M. Costigav, Const.
and party. BOROUGH OF LIVERPOOL, to wit :
Whereas, proof upon oath hath this day been made before me, one of her inajesty'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 lato mentioned borough. Given under my hand, this 11th day of April, 1851.
R. E. HARVEY.
COUNTY OF WESTMEATH, to wit :
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 In re Kaine.
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 my. self; and he took both pistols in one hand, and took a prayerbook 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.
his JAMES X Balfe.
mark 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 Shrrock, 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 truc copy of said original deposition. Dated the 25th day of May, 1852.
Jas. FEATHERSTON, H.
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.
In re Kaine.
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: “ T'he original warrant in this case was issued by James Featherstonbaugh, 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, sa id 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 prayerbook; witness said that he had not; Kaine then said that he had one hiinself, 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 ard