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In re Kaine.

There are two cases which have been chiefly relied on at the bar. The first is Ex parte Burford, 3 Cr. 448. As this case has many facts in common with the case at bar, it is necessary carefully to examine it. Without detailing the preliminary proceedings, it will be sufficient to say, that Burford was committed to the jail of the county of Washington, in the District of Columbia, by a warrant of certain justices of the peace, which was defective, because it did not state “some good cause certain, supported by oath.” That he was brought before the Cir. cuit Court for the District of Columbia, upon a writ of habeas corpas, and, after a hearing, that court passed the following order, which, as it is not given in the report of the case by Judge Cranch, and as its terms seem to me to be important, I have procured from the original record in this court.

January 8th, 1806. John A. Burford was brought into court by the Marshal of the District of Columbia, agreeably. to the habeas corpus issued by this court, on the 4th instant, with the cause of his commitment annexed thereto, (which habeas corpus and eause of commitment are hereunto annexed,) whereupon, all and singular the premises being heard, and by the court have been fully understood, the court order, that the said John A. Bur. ford, enter into a recognizance, himself in $1,000, and one or more sureties in the like sum, for his good behavior for one year from this day, and that he be remanded to jail, there to remain until such recognizance be entered into."

This case is relied upon as a decision to show, that although this court cannot, as was held in Metzger's case, issue a writ of habeas corpus to examine the validity of the warrant of the Commissioner; yet, if the Circuit Court has, by such a writ, examined its validity, pronounced it valid, and therefore dismissed the writ, and ordered the prisoner to be continued in the custody of the marshal, this court may, upon a writ of habeas corpus, examine that decision, and reverse it, if found erroneous.

Before considering whether the decision in Burford's case, goes this length, I think it consistent with the profoundest respect for the very eminent judges who sat in that case, to say, that it does not appear that the question now made, was by them examined and considered, or that they themselves would have deemed it foreclosed by that decision. Indeed, that they would not have so considered, seems to me from the fact that, at the term of the court following this decision, when a writ of habeas corpus was moved for, to bring up the body of James Alexander, Marshall, C. J., said:--- “ The whole subject will be taken up de novo, without reference to precedents. It is the wish of this court to have the motion made in a more solemn manner to-morrow, when you may come prepared to take op

In re Kaine.

the whole ground." 4 Cr. 75, note. Further proceedings upon this motion became unnecessary, in consequence of the discharge of the prisoner by another tribunal; but a few days after, upon motions in behalf of Bollinan and Swartwout, committed by the Circuit Court under a charge of treason, the court proceeded to hear arguments upon its jurisdiction to issue the writs, and in an elaborate judgment affirmed the jurisdiction to examine a cause of commitment by the Circuit Court. I cannot doubt, therefore, that if at that time the further question had ariser whether the court had also jurisdiction to examine a cause of commitment by a Commissioner, after the Circuit Court had reviewed that cause, and pronounced it sufficient, the court would have thought it necessary to consider that question also de novo, upon all its grounds, and would not have treated Burford's case as a sufficient basis on which to rest their decision. But, as I understand Burford's case, it is clearly distin. guishable from the case at bar. The Circuit Court, in that case, did not dismiss the writ of habeas corpus; they made an order under it, to imprison Burford. That order was, tha, he be remanded to jail, there to remain until he should enter into a recognizance, with surety, in the sum of $1000, for his good behavior for one year. This order was the cause of commitment, and under this order he was held when the writ of habeas corpus issued from this court. It necessarily superseded the order made by the justices of the peace, which was, that Burford should be imprisoned until he should recognize in the sum of $4000, with surety, to be of good behavior indefinitely.

It is true the Circuit Court did not proceed de noyo, and that for this reason their order was held invalid. But the question of jurisdiction did not depend upon the validity of the order, or the causes of its invalidity, but simply upon the fact that the Circuit Court caused the commitment; and when it issued an order, complete in itself, that Burford should be iinprisoned, and by that order superseded the former order of the Justices, the Circuit Court did an act which caused his commitment, and this court might inquire, by a writ of habeas corpus, into its validity. The distinction between such a case, and one where the Circuit Court merely dismissed the writ of habeas corpus, is to my mind clear.

And it must be observed that the question now is, not whether this court treated the act of the Circuit Court as the cause of commitment. I have no doubt they did so treat it, and it seems to have been so considered in subsequent cases. In Ex parte Watkins, (7 Peters, 573,) Mr. Justice Story, in reviewing the cases on the subject of habeas corpus, says:— * In Ex parte Burford, the prisoner was in custody under a commitment by the

In re Kaine.

In my

Circuit Court, for want of giving a recognizance for his good behavior, as awarded by the court." So in Metzger's case, (5 How. 189,) Mr. Justice McLean says :-“Ex parte Burford was a habeas corpus, on which the prisoner, who had been committed by the Circuit Court in this district, was discharged, there being no sufficient cause for the commitment.”

It is undoubtedly true, that the imprisonment of Burford was considered to be under a commitment by the Circuit Court, and the case is an authority to prove that when a writ of habeas corpus is returned in the Circuit Court, and that court makes an order imprisoning the party, this court may review that order. But it is not, in my judgment, an authority to show that the Circuit Court of the Southern District of New York did make an order imprisoning Kaine. In Burford's case, the court did not dismiss the writ, nor refuse to discharge the prisoner from the commitment by the Justices, but made an order which constituted a new cause of commitment, and superseded the existing cause. In Kaine's case, the Circuit Court held the existing cause to be sufficient, and refused to interfere with it. judgment, these cases are not parallel.

Nor do I consider the case Ex parte Watkins, (7 Pet. 572,) to be an authority that jurisdiction exists in this case.

It is only necessary to quote a single passage, from the opinion of the court, to show that it cannot aid in solving the question which I am now considering. “ The award of the capias ad satisfaciendum, must be considered as the act of the Circuit Court, it being judicial process issuing under the authority of the court. The party is in custody under that process. He is then in custody in contemplation of law, under the award of process by the court."

It is upon this ground the decision is rested, and I can find nothing in it tending to show that in the case at bar the act of the Circuit Court is the cause of commitment.

I shall not particularly examine the other decisions of this court, which are still more remote from the case at bar.

My opinion is, that the cause of commitment of Kaine is not the act of the Circuit Court, but of the Commissioner, and for this reason the writ must be refused.

But there is another ground, on which this refusal may be rested. The decision of the Circuit Court was made on the 9th day of July. On the 17th day of July, a warrant was issued from the Department of State, which was in the following words:

DEPARTMENT OF State, Washington, July 17th, 1852. To all whom these presents shall come, greeting:

Whereas, John F. Crampton, Envoy Extraordinary and

In re Kaine.

Minister Plenipotentiary to Her Majesty the Queen of Great Britain and Ireland, hath made requisition, in conformity with the 10th article of the treaty between the United States and Great Britain, for the mutual surrender of fugitive criminals, concluded at Washington, the 9th day of August, 1842, for the delivery up to justice of Thomas Kainc, charged with the crime of assault with an intent to commit murder, in the county of Westmeath, Ireland.

And whereas, the said Thomas Kaine hath been found in the State of New York, within the jurisdiction of the United States, and has, by proper affidavit, and in due form, been brought before Joseph Bridgham, a Commissioner duly appointed by the United States Circuit Court for the Southern District of New York, in the second circuit, for examination of said charge of assault with intent to commit murder. And whereas, the said Commissioner hath deerned the evidence suffi. cient to authorize the commitment of said Thomas. Kaine, and has, accordingly, committed him. All of which appears by a copy of the proceedings transmitted to this department.

Now, these presents are to require of the United States Mar. shal for the Southern District of New York, or of any other public officer or person having charge or custody of said I'homas Kaine, to surrender and deliver him up to Anthony Barclay, Her Britannic Majesty's Consul at the Port of New York, or to any other person or persons duly authorized to receive said fugitive, and conduct hiin to Great Britain for trial.

In testimony whereof, I have hereunto signed my name, and caused the seal of this Department to be atlixcd, at Washington, this 17th day of July, A. D. 1852, and of the independence of the United States the seventy-seventh. (SEAL) Signed,


Acting Secretary of State. Upon its face, this warrant is perfectly regular. Its recitals set forth every fact necessary to warrant the act of extradition, according to the treaty and the act of Congress. It appears, by the return of the marshal upon the writ issued by Mr. Justice Nelson, that before he received that writ, this warrant had come to his hands, and he had, in obedience to it, tendered Kaine to Anthony Barclay, who expressed his readiness to receive him; and while arrangements were about to be made to put Kaine on shipboard, the writ of habeas corpus, issued by Mr. Justice Nelson, suspended the further execution of the warrant of extradition.

This warrant of extradition is the final process under the treaty and act of Congress. When it comes to the hands of

In re Kaine.

the marshal, he holds the prisoner for the purpose of executing it. Upon this process, therefore, Kaine is now held.

The act of Congress requires the Judge, or Commissioner, to certify to the Secretary of State his inding, together with a copy of all the testimony taken before him, that a warrant may issue upon the requisition of the proper authorities of the foreign government for the surrender of the fugitive, according to the stipulations of the treaty. Such a warrant having issued, and its validity not having been considered by any court of original jurisdiction, in my judgment it is not the exercise of an appellate power to examine its validity by a writ of habeas corpus. It may be true that, if the proceedings before the Commissioner were to be held void, this warrant must also be invalid. But the question is not, whether this warrant is valid, but whether we have jurisdiction to examine its validity. It may also be true that, if this warrant were final process, issued by the Circuit Court, and we had power to examine the legality of a judgment or order of that court, pursuant to which it issued, we should also have jurisdiction upon a habeas corpus, to examine the validity of such a warrant, and of the proceedings of executive officers under it. But this warrant did not emanate from the Circuit Court, nor does it depend, in any way, upon its authority, nor is it a legal consequence of the action of the Circuit Court on the writ of habeas corpus, or in any other proceeding. It emanates from a department of the executive, which rests its action upon the proceedings of the Commissioner, and over neither can this court have, under the Constitution, nor has it under the laws, any appellate jurisdiction or control. Marbury v. Madison, 1 Cr. 137.

For the reason, then, that if a writ of habeas corpus were allowed in this case, the validity of the warrant of extradition could not be examined here, I think the writ should be refused.

In considering the question, whether the Supreme Court of the United States has jurisdiction, under the Constitution and laws of the United States, to entertain this application, I have not felt at liberty to allow my judgment to be pressed upon by the great value of the particular writ applied for, or the propriety and expediency of a power in this court to review the judgments of the Circuit Courts, in cases affecting the liberty of the citizen. To all that has been said concerning the preeminent utility of the writ of habeas corpus, I readily assent. But it must be remembered, that the real question here is not, whether this great writ shall be freely and efficiently used, but whether our appellate power is large enough to extend to this

The Circuit Court has power, upon its own views of the law, to inflict, not only imprisonment, but even the punishment


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