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In re Kaine.

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,

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In re Kaine.

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

In re Kaine.

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

In re Kaine.

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 doul. 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,

In re Kaine.

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 citi

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