In re Kaine.

endum, is appellate. It is equally clear that no part of the appellate jurisdiction of this court can be exercised by a single Judge, at his chambers. It is also well settled, that the question, whether such a writ of habeas corpus shall issue from this court, is one upon which the court ought to pass, before the writ issues; the allowance of the writ being an exercise of its limited appellate jurisdiction, which only the court itself has the power to exert. Ex parte Milburn, 9 Peters, 704.

From these premises it also follows, that if such a writ be issued from this court, it cannot be made returnable before a Judge, at chambers, for the reason, that he cannot there exercise any appellate power under it. And, finally, this writ does not bear the seal of the Supreme Court, is not tested by the Chief Justice, or signed by the clerk, as is required by the act of Congress, (1 Stat. at Large, 93,) but bears the seal of the Circuit Court of the Southern District of New York, is tested by Mr. Justice Nelson, is not signed by any clerk, and therefore cannot be considered process issuing out of this court, or upon which we can take jurisdiction.

I concur with my brethren in the opinion, that under this writ the court can pass no order whatever.

It remains to consider the application made by the counsel of Kaine, to have another writ of habeas corpus allowed by this court.

The first question is, whether we have jurisdiction to act under the writ, if allowed in the case shown by the petitioner. There are some principles, bearing on this question, which are settled. That this court has no original jurisdiction to issue a writ of habeas corpus ad subjiciendum, and can grant such a writ only in the exercise of its appellate jurisdiction, and consequently, by means of it, can revise only the proceedings of those tribunals over which, and in respect to which, it has an appellate control, have been so repeatedly and uniformly decided here, that they must be considered as finally settled. Marbury v. Madison, 1 Cr. 175; Ex parte Bollman, 4 Cr. 100, 101; Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Peters, 193, S. C. 7 Peters, 568; Cohens v. State of Virginia, 6 Wheat. 264; Osborn v. Bank of the United States, 9 Wheat. 738; Ex parte Madraza, 7 Peters, 627; Ex parte Barry, 2 Howard, 65. That no such control, by means of an appeal, writ of error, or other proceeding, can be exercised by this court over a Commissioner, acting under the authority of an act of Congress, or under color of such an authority, and that this court has no power in any way to revise his proceedings, I consi er equally clear. In Ex parte Metzger, (5 Howard, 176,) it was determined that a writ of habeas corpus could not be allowed, to examine a commitment

In re Kaine.

by a District Judge, at chambers, under the treaty between the United States and France, for the reason that the Judge, in ordering the commitment, exercised a special authority, and the law had made no provision for the revision of his judgment. The same reason applies to the action of this Commissioner. Not only has the law made no provision for the revision of his acts by this court, but, strictly speaking, he does not exercise any part of the judicial power of the United States. That power can be exerted only by Judges, appointed by the President, with the consent of the Senate, holding their offices during good behavior, and receiving fixed salaries. (Constitution, art. 3, sec. 1.) The language of Mr. Chief Justice Taney, in United States v. Ferreira, (13 Howard, 48,) in speaking of the powers exercised by a District Judge, and the Secretary of the Treasury, under the treaty with Spain, of 1819, describes correctly, the nature of the authority of such a Commissioner as acted in the case before us. "The powers conferred by Congress upon the Judge, as well as the Secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them. But it is not judicial, in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States."

Since, then, the Commissioner did not, in this case, exercise any part of the judicial power of the United States, and no mode has been provided by law to transfer the case on which he acted into any court of the United States, and thus bring that case under the judicial power, this court can have no appellate control over it; because its appellate power cannot extend beyond the action of the inferior courts, established by Congress to take original jurisdiction under the Constitution, and which exercise judicial power therein conferred. As it is plain, then, that to revise the proceedings of the Commissioner by a writ of habeas corpus, would be an exercise of original, and not of appellate jurisdiction, the inquiry recurs whether we can grant the writ for the purpose of revising the decision of the Circuit Court, made upon the writ of habeas corpus issued by that

court.

This court has appellate power only in the cases provided for by Congress. United States v. Moore, 3 Cr. 159; Durousseau v. United States, 6 Cr. 307.

We must therefore find, in some act of Congress, power to review the decision of a circuit court simply remanding a prisoner on a writ of habeas corpus; otherwise this writ cannot be allowed. The only grant of power, supposed to be applicable to such a case, is contained in the fourteenth section of the Judiciary Act, (1 Stat. at Large, 81,) which authorizes this

In re Kaine.

"to

court to issue writs of habeas corpus; and the question is, whether a grant of power to issue a writ of habeas corpus examine into the cause of commitment," is a grant of power to review this particular decision of the Circuit Court.

As the only jurisdiction conferred arises from the authority to issue the writ, and the consequent authority to proceed under it, the exigency of the writ must necessarily limit the jurisdiction. So far as the subject-matter involved in this writ extends. the jurisdiction exists, and no further.

That subject-matter is "the cause of the commitment." So that we must ascertain whether the decision of the Circuit Court is the cause of the commitment. If it is, we have jurisdiction to inquire into it; if it is not, then that decision is not within the exigency of this writ, forms no part of its subjectmatter, and is not within our appellate control.

To determine whether the decision of the Circuit Court is the cause of the commitment in this case, it is necessary to have distinctly before us the precise acts which have been done, and then to consider their legal effect.

On the 29th day of June, 1852, the Commissioner, after the previous proceedings which have been mentioned, made the following warrant to the Marshal of the Southern District of New York:

UNITED STATES OF AMERICA,

Southern District of New York, ss.

In the matter of Thomas Karne.

This case having been heard before me, on requisition, through Anthony Barclay, Esquire, Her Britannic Majesty's Consul at the Port of New York, that the said Kaine be committed for the purpose of being delivered up as a fugitive from justice, pursuant to the provisions of the treaty made between the United States and Great Britain, August 9th, 1842, I find and adjudge that the evidence produced against the said Kaine, is insufficient in law to justify his commitment on the charge of assault with intent to commit murder, had the crime been committed within the United States. Wherefore, I order that the said Thomas Kaine be committed, pursuant to the provisions of the said treaty, to abide the order of the President of the United States in the premises.

Given under my hand and seal, at the city of New York, this 29th day of June, 1852.

(Signed,) JOSEPH BRIDGHAM, [L. S.]

United States Commissioner for the Southern District of New York. Directed to the Marshal of the Southern District of New York.

In re Kaine.

Under this warrant Kaine was held by the marshal, at the time the writ of habeas corpus was issued by the Circuit Court; and upon the return of that writ, several questions of law were raised and argued, touching the jurisdiction of the Commissioner, and the regularity and validity of his proceedings; and on the 9th day of July, 1852, the Circuit Court gave its decision, to the effect that the Commissioner had jurisdiction, and had proceeded regularly, and concluded by passing the following order:

"The court 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 of habeas corpus allowed in this case 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 po

cess."

Is this order "the cause of the commitment" of Kaine within the meaning of a writ of habeas corpus ? With the utmost respect for the opinions of those of my brethren who have so considered it, I cannot come to that conclusion. It seems to me, that it is not the cause of the commitment; either in substance or in form.

In substance, it is merely a refusal to discharge the prisoner from an existing commitment, because the cause of that existing commitment is found sufficient in law. It creates no new cause; it simply declares the existing cause to be sufficient. It makes no new commitment, and issues no new process as an instrument for it, but only pronounces the old process valid, and consequently the continuance of the commitment under it legal. . The custody was at no time changed. Certainly, when a prisoner is brought into court upon the return of a habeas corpus ad subjiciendum, he is then in the power and under the control of the court; but until the court makes some order changing the custody, it remains. The court may, in some cases, admit to bail, and may also take order for the future production of the prisoner, without bail; but in all cases, until the court makes some order changing the custody, either for the care or security of the prisoner, or founded on the illegality of his commitment, the original custody continues. In this case, no such order was made.

If, then, this order of the Circuit Court created no new cause of commitment, made no new commitment, and only pro

In re Kaine.

nounced the existing cause sufficient, and the existing custody lawful, I cannot perceive how that order can, in substance, be treated as the cause of the commitment of Kaine.

Nor, in my apprehension, is it so, even in form. In form, the court first adjudges that the causes set forth in the return, are sufficient, and, "therefore, it is ordered, by the court, that the writ of habeas corpus allowed in this case, 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."

This clearly expresses, in words, precisely what would be the legal effect of dismissing the writ of habeas corpus, without those words. And I do not perceive how it can be more plainly expressed than by the language of this order, that the process of the Commissioner, being found sufficient, the commitment by that process is not interfered with.

It is true, the order contained the word, remanded, but in the context, where it stands, it means only that the command of the writ is no longer operative, and that the court would exercise no further control over the body of the prisoner, and not that, being out of the custody of the marshal, he is recommitted to him anew, for the words are "remanded and continued in the custody of the marshal, under such his arrest and commitment by the aforesaid process."

In point of form, the same order would have been passed if it had been found by the Circuit Court, on the return of the writ, that the prisoner was not held under, or by color of the authority of the United States, and therefore that, under the Judiciary Act, the court had no power to relieve him by habeas corpus. It could not be contended that, after such an order, the prisoner was confined by order of the Circuit Court, and that its order was the cause of his commitment, yet in such a case the writ must have been dismissed, and the prisoner remanded.

But whatever literal interpretation might be put upon the precise words employed in the order, I should be unable to find "the cause of the commitment" in an act of the court dismissing a writ of habeas corpus, because the cause of the commit. ment shown by the return is found sufficient. 'The cause of the commitment is to be looked for in the warrant under which it began, and has been continued, and not in the decision of a court pronouncing that warrant alid.

I have thus far considered this question of jurisdiction upon those principles which seem to me applicable to it. It remains to examine the former decisions of this court, to ascertain whether the question is determined by authority.