In re Kaine. Even when of death, without appellate control by this court. it is alleged, that the proceedings of a circuit court, by which a citizen is imprisoned, are coram non judice and void, its judgment is final, and no relief can be had here, by writ of error or appeal, or by habeas corpus. Ex parte Watkins, 3 Pet. 193; Ex parte Kearney, 7 Wheat. 38. Undoubtedly, it would be competent for Congress to do, in cases like this, what it has done in a class of cases somewhat analogous. By the act of August 29, 1842, (5 Stat. at Large, 539,) when the subject of a foreign government is imprisoned for an act done under the authority of that government, and a writ of habeas corpus is issued by a Judge of this court, or by a District Judge, an appeal to the Circuit Court, and from its order to this court, is expressly given. It is for Congress to determine, whether this class of cases requires the same privileges. Until it so determines, I must give my decision upon our jurisdiction, as, according to my judgment, it exists, unaffected by the consideration, that it might be expedient to enlarge it. My opinion is that, if the writ prayed for were issued, we should not have jurisdiction to inquire into the cause of commitment shown by the petition, and consequently the writ should be refused. I give no opinion upon the sufficiency of the cause of the commitment, not deeming it to be judicially before us. Mr. Justice NELSON. The application for the arrest and delivery of Thomas Kaine was originally made on the requisition of the British Consul, resident at the port of New York, before Joseph Bridgham, Esq., a United States Commissioner for the Southern District of New York. A warrant was issued and the arrest made, and, on the return before this officer, an examination took place upon a charge that the fugitive had committed an assault, with intent to murder, upon one James Balfe, in Ireland, on the 5th April, 1851. The Commissioner, upon hearing the allegation and proofs, adjudged the prisoner guilty, and ordered that he be committed, in pursuance of the treaty, to abide the order of the President of the United States. A petition was then presented to the Circuit Court for the Southern District of New York, holden by the District Judge, for a writ of habeas corpus, directed to the marshal, to bring up the body of the prisoner; and also a certiorari to the Commissioner, to bring up the proceedings that had taken place before him; and upon a full review of all these proceedings, on the 9th July, 1852, adjudged that the commitment and detention were for sufficient cause, and ordered that the writ of habeas corpus be dismissed, and the prisoner be In re Kaine. remanded, and continued in the custody of the marshal, under said commitment. On the 17th July, copies of these proceedings having been forwarded to the Department of State, at Washington, the Acting Secretary issued his warrant to the marshal having the custody of the prisoner, directing that he be surrendered to Mr. Barclay, the British Consul, or to any other person or persons duly authorized to receive the fugitive and transport him to Great Britain for trial. On the 22d July, a petition was presented to me, at my chambers, in Cooperstown, on behalf of the prisoner, for a writ of habeas corpus, which I declined allowing until the whole of the proceedings that had already taken place in the matter were laid before me. Copies of them were subsequently furnished, and, upon an examination, being satisfied that the Commissioner had no jurisdiction over the case, I allowed the writ, on the 3d of August, returnable before me, at my chambers, on the 11th of the same month, and which return was made accordingly. As the case was one in which I entertained a different opinion from that of the tribunals before whom the proceedings had taken place, not only as to the jurisdiction of the Commissioner, but also in respect to their interpretation of the treaty, and act of Congress passed to carry it into effect; and, as the questions involved were of considerable interest of themselves, and concerned deeply the two nations who were parties to the treaty, on the return to the writ I entered an order, directing that the case be heard before all the Judges, at the commencement of the next term of this court. The case has now been heard in full bench, and I am inclined to concur with my brethren, that we cannot entertain jurisdiction of it upon my allowance of the writ and adjourn ment of the proceedings to be heard in this court. The prac tice is a familiar one, in the proceedings under this writ, before the King's Bench; in England. 1 Burr. R. 460, 542, 606; Comyn's Digest, Habeas Corpus, 3d ed.; Bl. Com. 131; 9 Ad. & Ell. 731, Leonard Watson's case, and which furnished the precedent for that adopted by me in this case. That, however, is an original proceeding; and, in cases where the court has original jurisdiction to hear and determine the matters upon the return, and where the hearing may be had either before one of the Justices, at chambers, or in full bench. But, according to the settled course of decisions in this court, we can only issue the writ, and entertain jurisdiction of the matters set forth on the return, in the exercise of our appellate power. United States v. Hamilton, 3 Dall. 17; Ex parte Burford, 3 Cr. 448; Ex parte Bollman and Swartwout, 4 Id.; Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Pet. 193; 7 Id. 568; Ex parte Metzger, 5 How. 189. And, as the power cannot be exercised by one of the In re Kaine. Justices, at chambers, there may be ground for a distinction be tween the proceedings, under the writ, in this court and in the King's Bench. The issuing of the writ, and proceedings before me, at chambers, under it, must undoubtedly be regarded as an original proceeding, and not in the exercise of an appellate power. If this conclusion be a sound one, the remedy for the defect in the law must be sought in Congress, who can make provision for the issuing of the writ in vacation as well as in term, in all cases where this court possesses jurisdiction to entertain proceedings under it. The right of the citizen to appeal to the court for the benefit of this great writ, in case of an illegal restraint of his liberty, ought not to be restricted to the time of its sitting; but, as in all other cases where its jurisdiction may be exercised, provision should be made for instituting the proceeding in vacation. The prisoner has now presented to this court a petition, praying for a writ of habeas corpus to be directed to the marshal, that he may be brought up, together with the ground of his commitment; and, also, for a certiorari to the Circuit Court, to bring up the proceedings that have taken place in that court, which disembarrasses the case of all exceptions to the form of the application; and the return of the marshal and the proceedings before the Circuit Court being now before us, on this preliminary motion, by the agreement of the counsel, the case is in a situation to enable us to express an opinion upon the merits. It is objected, that this court cannot entertain jurisdiction of the case, even upon the petition, return of the marshal, and of the proceedings before the Circuit Court to the certiorari, for the reason, it appears, as supposed, that the prisoner is held in confinement under the warrant of the Commissioner, and not under the decision and order of the Circuit Court; that this court cannot reach and review the proceedings before the Commisioner, by virtue of this writ, in the exercise of its appellate power, but can only reach and review the proceedings and order of the Circuit Court; and, as the confinement of the prisoner is not under or in pursuance of the order of that court, the proceedings under the writ here would be a nullity. The first case in which this question was discussed at large by counsel and by the court, was' that of Ex parte Bollman and Swartwout. They were in confinement in this district, under a warrant from the Circuit Court, upon a charge of treason against the United States. Two objections were taken to the power of this court to issue the writ to bring up the prisoners: 1st, that it involved the exercise of an original jurisdiction, not given by the Constitution; and, 2d, that, if it was the exercise of an appellate power, it was not within the 14th section of the Judiciary Act, In re Kaine. which alone conferred the authority to issue this writ. Chief Justice Marshall, who delivered the opinion in that case, admitted the power could not be exercised as a part of the criginal jurisdiction of the court; but held, that it possessed jurisdiction, as an appellate power, under this 14th section. After answering the argument, that the power to award the writ was limited by that section to causes pending in this court, in which it was necessary, in order to enable it to make a final decision in the case, he observed that the proviso to the section extended to the whole of it; that proviso is as follows: That writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. And that, construing the section with reference to this proviso, the power of the court to issue the writ extended to all cases where the prisoner was restrained of his liberty, under the authority of the federal government. The same principle is derived from that section, as stated by Mr. Justice McLean in Ex parte Dorr, 3 How. 103-105. "The power given to the courts," he observes, "in this section to issue writs of scire facias, habeas corpus, &c.; as regards the writ of habeas corpus, is restricted by the proviso to cases where a prisoner is in custody under or by color of the authority of the United States, or has been committed for trial before some court of the same, or is necessary to be brought into court to testify. This is so clear," he observes, "from the language of the section, that any illustration of it would seem to be unnecessary. The words of the proviso are unambiguous. They admit of but one construction." If this construction of the section is to be maintained, (and the case Ex parte Bollman and Swartwout was very fully and deliberately considered,) then it is manifest the power to issue this great writ for the security of the liberty of the citizen, is much broader than has been contended for on behalf of the prisoner in the case before us. Hamilton's case, decided in 1795, led the way to the decision in Bollman and Swartwout. That case repudiates the idea, that the power to issue the writ is limited to instances where the proceeding is ancillary to the determination of a suit pending. Hamilton was in jail on a warrant issued by the District Judge, at chambers, upon a charge of treason. Chief Justice Marshall, in Ex parte Tobias Watkins, (3 Peters, 208,) observes that in the case of Bollman and Swartwout, the habeas corpus was awarded on the same principle on which it was awarded in Hamilton's case; and, in Ex parte Kearney, Mr. Justice Story, in stating the points in the case, observes, "the first is whether or not In re Kaine. this court has authority to issue a habeas corpus where a person is in jail under the warrant or order of any other court of the United States." And then says, "that it is unnecessary to say more than that the point has already passed in rem judicatam in this court. In the case of Bollman and Swartwout, it was expressly decided, upon full argument, that this court possessed such authority, and the question has ever since been considered at rest." In the case of Ex parte Watkins, reported in 7 Peters, 568, there is a still stronger exercise of the power to issue this writ. In that case the prisoner was in custody of the marshal under three executions regularly issued out of the Circuit Court, but their efficacy had expired by the neglect of the marshal to bring in the body on the return day. The error or wrongful detention lay wholly with the marshal, and yet this court issued the habeas corpus, and discharged the prisoner. The case stands upon the principle decided in Hamilton's case, and in Bollman and Swartwout, that the writ may issue in all cases where the prisoner is in custody under and by color of the authority of the United States. In the case Ex parte Metzger, the prisoner was committed to the custody of the marshal by the District Judge, at his chambers, under the French treaty of extradition. This court held that they possessed no power to issue the writ of habeas corpus, inasmuch as the order of commitment had been made at chambers and not in court. This case undoubtedly stands alone, and has very much narrowed the power of the court in issuing this great writ in favor of the liberty of the citizen, from that repeatedly asserted in previous cases. But I do not propose to disturb it. For the case before us is within the doctrine of this case, and of every other that has heretofore been passed upon by the court, as I shall proceed briefly to show. The habeas corpus, which was issued in the case before us, by the court below, to the marshal, brought up the body of the prisoner, and also the warrant of commitment, into that court, and the certiorari to the Commissioner brought up the record, or tenor of the record of the proceedings before him, upon which the warrant had issued. The whole case, therefore, was in that court. And pending the examination or hearing, the prisoner, in all cases, on the return of the writ, is detained, not on the original warrant, but under the authority of the writ of habeas corpus. He may be bailed on the return de die in diem, or be remanded to the same jail whence he came, or to any other place of safe keeping under the control of the court, or officer issuing the writ, and by its order brought up from time to time, till the court or officer determines whether it is proper to discharge or remand him absolutely. The King's Bench may, pending the hearing, remand to the same prison or to their own, |