In re Kaine.

zens, 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 habeas 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 urder; and against pirates, house-burners, robbers, and forgers. That these should be extruded, on the demands of a foreign government where the crime was cominitted, 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

In re Kaine.

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 prima 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,

In re Kaine.

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 prima 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 rarely 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,

In re Kaine.

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.

Mr. Justice CURTIS.

To state intelligibly the grounds on which I rest my judgment in this case, it is necessary to advert to the proceedings by means of which it comes before us.

On the 14th day of June, 1852, a complaint, on oath, was presented to Joseph Bridgham, Esq., one of the commissioners to take affidavits, &c., appointed by the Circuit Court of the United States, in the Southern District of New York, charging, that Thomas Kaine, in that part of the dominions of Her Britannic Majesty, called Ireland, had feloniously assaulted one John Balfe, and inflicted upon him a wound with a pistol, with intent to murder him; that a warrant to arrest Kaine, for this felony, was issued by a justice of the peace, duly authorized for this purpose, but Kaine having fled from justice, took refuge in the United States, and was then in the Southern District of New York; and the complainant, who describes himself as the Consul of Her Britannic Majesty in New York, prays that a warrant may be issued to apprehend Kaine, to the end that such proceedings may take place for his surrender to the authorities of Great Britain, as are required by the treaty between the United States and Great Britain, and the act of Congress, passed to carry that treaty into effect.

A warrant did issue, Kaine was arrested, and a hearing took place, the result of which was, that the Commissioner ordered Kaine to be committed, pursuant to the treaty, to abide the order of the President of the United States, in the premises.

In this stage of the proceedings, a writ of habeas corpus was issued by the Circuit Court of the United States, for the Southern District of New York. Kaine was brought before that court, in which the District Judge then presided, and after a hearing, upon all the objections raised by the Prisoner, the writ of habeas corpus was dismissed, and Kaine was remanded and continued in the custody of the marshal, under his arrest and commitment by the process of the Commissioner. On the 22d day of July, 1852, Kaine presented to Mr. Justice Nelson, at chambers, a petition addressed to the Justices of the Supreme Court of the United States, in which he sets forth, that he is detained in custody by an order made by Judge Betts, on the 9th day of July, 1852, that his detention is illegal, and praying

In re Kaine.

for a writ of habeas corpus to inquire into the cause of his commitment.

Upon this petition, Mr. Justice Nelson made an order, under which a writ issued, which is as follows:

Seal of the Circuit Court

The President of the United States of America, to the United States Marshal for the Southern District of the State of New York, or to any other person, or persons, having the cus

of the Southern District of New York.

tody of Thomas Kaine, greeting:

We command you, that you have the body of Thomas Kaine, by you imprisoned and detained, as it is said, together with the cause of such imprisonment and detention, by whatsoever name the said Kaine ma e called or charged, before our Justices of our Supreme Cot of the United States, at his chambers, in Cooperstown, New York, on the 11th day of August, instant, to do and receive what shall then and there be considered, concerning the said Thomas Kaine.

Witness, SAMUEL NELSON, Esq., one of our Justices of our said Court, this third day of July, eighteen hundred and fifty-two. RICHARD BUSTEED, Attorney for petitioner.

Upon the return of the marshal to this writ, a hearing was had, which resulted in the following order, made by Mr. Justice Nelson:

COOPERSTOWN, August 11, 1852. At Chambers. 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. S. NELSON.

These are the proceedings which have brought this case here, and the first question which arises is, whether, under these proceedings, we have any power to act?

In my opinion, we have not. Passing over the question, whether the court itself could rightfully issue a writ of habeas corpus upon the case made before Mr. Justice Nelson, which I shall consider hereafter, I think a Judge of the court in vacation, at his chambers, has no power to grant a writ of habeas corpus out of this court, or to make such a writ returnable before himself, and then adjourn it into term; and, that if he had such power, it has not been exerted in this case, the writ actually issued not being a writ out of this court, or upon which, as process, this court can take any action.

It is not to be doubted, that whatever jurisdiction belongs to the Supreme Court, under any writ of habeas corpus ad subjici