In re Kaine.

of Her Majesty's colonies or possessions abroad, for the officer administering the government of any such colony or possession, by warrant under his hand and seal, to signify that such requisition has been so made, and to require all justices of the peace, and magistrates and officers of justice, within the several jurisdictions, to govern themselves accordingly, &c.; and thereupon it shall be lawful for any justice of the peace, &c., to examine upon oath any person or persons, touching the charge," &c.

Now, it will be seen that, according to the interpretation given to the treaty by Great Britain, the requisition for the delivery of the fugitive must be made by the President upon that government, and its warrant obtained, before any magistrate within her dominion is authorized to act in the matter. The act of Parliament deals with the treaty as regulating a matter of national concern, and in respect to which both nations must act in carrying into execution its stipulations; and it is only after both have acted, and an authority obtained for the surrender, that the power of the judiciary can be called into requisition. I am satisfied this is a sound interpretation of its provisions, and is one, while it secures the punishment of the offender, guards the citizens and subjects of the respective countries against any abuse of the power. While its exercise is thus kept under the supervision and control of the twó governments, there can be no danger of its being perverted, to the purposes of private malice and revenge, which might justly be apprehended, if left to the unrestrained discretion of the subordinate officers of either. The construction, against which I am contending, would refer the execution of the treaty to the subordinate and inferior agents of both governments, so far as the surrender of the fugitive, on our part, is concerned; for, as I understand that construction, any subordinate officer of Great Britain may make the requisition directly upon the magistrate, for the apprehension and committal; and, upon such commitment being communicated to the government, the Secretary of State issues his warrant that the prisoner be delivered to the British authorities. And, as I am advised, that department decided, in the case before us, that the government would not go behind the decision of the Commissioner, adjudging the prisoner guilty. Thus, the whole of the proceeding in the exercise of this high and delicate power, if the requisition of the President, in the first place, is dispensed with, would pass out of the hands and beyond the control of the government. This seems to be the result of the American interpretation of the treaty, sought to be established. It has been argued that, in Metzger's case, in which demand was made by the French government, under the treaty of November 9, 1843, the Execu

In re Kaine.

tive declined to act until an application had been made to the judiciary, and that this construction was sanctioned by the court in that case. The treaty, in express terms, requires the requisition to be made through the diplomatic agents of the respective governments; but that the surrender shall not be made until the crime is established according to the laws of the country in which the fugitive is found. In that case, the requisition was made upon the Executive by the diplomatic agent of France, who was referred to the judiciary. The application to the judiciary, therefore, was with the approbation of this government. How formal it was given, does not appear in the case. The same practice was adopted by the Executive, in the case of Jonathan Robbins. There, on the requisition made by Great Britain upon the President, he referred the case to a Judge of the District Court of the United States, to inquire into the facts and determine whether or not he was guilty of the offence charged against him. And it is upon this construction, given to the treaty of 1795, upon which all our subsequent treaties of extradition seem to have been drafted. The power to surren der is not confided exclusively to the Executive under the treaty in question, nor was it under the treaty of 1795. On the requisition being made, if the President is satisfied, upon the evidence accompanying it, that a proper case is presented for an inquiry into the crime charged, the authorities claiming the fugitive are referred to the judiciary; and then, it is the duty of the courts or judges to act and to take the proper steps for the arrest and inquiry. The Executive alone possesses no authority, under the Constitution and laws, to deliver up to a foreign power any person found within the States of this Union, without the intervention of the judiciary. The surrender is founded upon an alleged crime, and the judiciary is the the appropriate tribunal to enquire into the charge. It has also been urged that great inconvenience may exist in the pursuit and apprehension of fugitives upon the construction contended for, in consequence of the extended frontier line between the two countries, as much time will be consumed in making the requisition upon the President. This may be so; but I cannot agree that a sound construction of the treaty, and one which affords nothing more than a just protection to the personal liberty of the citizen against the abuse of power, shall be made to yield to the suggestions of convenience; for, although the prisoner before us may be a foreigner, and even may be a fit subject to be given up to the subordinate and irresponsible agents of the government claiming him, still, it is not to be denied that the same power, thus attempted to be exercised by them, in this instance, is cqually applicable to any citizen of

In re Kaine.

the country, upon a like complaint; and besides, under our system of laws and principles of government, so far as respects personal security and personal freedom, I know of no distinction between the citizen and the alien who has sought an asylum under them. I will simply add, that, according to the act of 6th and 7th Victoria, already referred to, carrying into effect this treaty, the indulgence of any such convenience in its execution, is regarded as too dangerous to the subjects of that government residing within its dominions, on the other side of this extended boundary. The treaty, after providing for the requisition of the one government upon the other, for the surrender, then provides that the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive. After the requisition has been made upon the President, the organ of the government as regards our foreign relations, and his authority obtained, the means are thus provided for procuring the surrender. An application is then made to the judiciary of the country, not upon the requisition of the foreign government, but, as in all other cases, upon the authority of its own - and the warrant issued in pursuance of such application, runs in the name of the President of the United States. The act of Congress, passed to carry our treaties of extradition into effect, and of course this one among others, takes up the subject at this stage of the proceedings, and designates the judicial officers who are authorized to act, and prescribes, in general terms, the steps to be pursued in the arrest, the examination of the criminal charge, and final commitinent for the surrender, if evidence of the criminality is found sufficient. There is no necessary discrepancy between the provisions of this act and the treaty, as the requisition of the one government upon the other is not attempted to be regulated or defined, but is left as regulated by the terms of that instrument. The provisions of the treaty must, therefore, be resorted to for the purpose of ascertaining how that requisition shall be made. I have already explained my interpretation of them, and need not repeat it. The judicial officers designated in the treaty, and upon whom jurisdiction is conferred, are "the respective judges and other magistrates of the two governments." The act of Congress, in carrying out this provision, designates the Justices of the Supreme Court, the Judges of the several District Courts of the United States, the Judges of the several State Courts, and Commissioners specially authorized so to do, by any of the courts of the United States. The terms "other magistrates of the two governments," are quite indefinite and difficult in their application by judicial construction. In an enlarged sense,

In re Kaine.

they might embrace all the United States Commissioners appointed by the Circuit Court, who, under the act of Congress of the 23d of August, 1842, are authorized to arrest persons for crimes against the United States, and imprison or bail the same; and, also, all the justices of the peace of the several States, upon whom like power is conferred by the 33d section of the Judiciary Act of 1789. I can hardly suppose that the distinguished citizen who represented this government in the negotiation of the treaty, or the President, under whose supervision it was entered into, contemplated the exercise of so high and delicate a power over the rights and liberty of the citizen, by so numerous a body of the magistracy of the country. But, be this as it may, Congress, in providing for the execution of the treaty, has declared who shall constitute those "other magistrates," before whom the application may be made for the arrest and examination, and have confined the jurisdiction, in this respect, to the Judges of the several State courts, and Commissioners specially authorized by the courts of the United States, for the performance of that duty. The provision necessarily excludes the great body of the State magistrates and of United States Commissioners, possessing general power to arrest and commit for offences against the United States, and is in no respect in conflict with any clause in the treaty, but in harmony with it, and in furtherance of a proper and discreet execution of its stipulations.

It has been argued that, adn.itting the State magistrates to possess no power under the act of Congress passed to carry the treaty into effect, yet that act confers the power upon the body of United States Commissioners, authorized to arrest and commit for crimes against the United States, under the act of 1842. A slight attention to the provisions of the act, I think, will refute any such conclusion. The 1st section confers the exercise of the power under the treaty, upon the Judges of the Federal courts, and of the State courts, and upon "Commissioners authorized so to do by any of the courts of the United States; and the 6th section provides-"That it shall be lawful for the courts of the United States, or any of them, to authorize any person or persons to act as a Commissioner or Commissioners under the provisions of this act; and the doings of such person or persons so authorized in pursuance of any of the provisions aforesaid, shall be good and available to all intents and purposes

whatever."

Taking these two provisions together, and construing them as part of a regulation prescribed by law for carrying the treaty into effect, I think it plain that a Commissioner, competent to act in the matter, must be specially appointed, or authorized by

In re Kaine.

the Federal courts for that purpose. The first section confines the exercise of the power to Commissioners thus specially authorized to perform this duty; and the sixth provides for the appointment of them, and declares that their doings in the premises, in conformity with law, shall be good and valid. How it can be said that the exercise of a power thus guarded and restricted, both in the grant and in the appointment, is conferred, also, upon a body of officers appointed under a different act, and for other special and limited duties, I admit is beyond my comprehension. But it is urged that if the act of Congress cannot be construed as conferring the power, it may be derived from the appointment of this Commissioner, under a rule of the Circuit Court of the United States, adopted in January, 1851. That rule provides that the clerk of the Circuit Court and of the District Court, and their deputies, (the Commissioner in question being a deputy of the Clerk of the District Court,) shall be ex officio Commissioner of the Circuit Court; and shall be authorized to execute all the powers, and perform all the duties conferred by several acts of Congress, enumerating them, but of which the act of 1848, the one in question, is not included, "or of any act of Congress having relation to such Commissioners, and their duties or powers." These officers, thus appointed by the Circuit Court, are authorized, by the several acts enumerated, to take affidavits and bail in civil cases; and to arrest and commit for offences against the United States, and the latter clause of the rule provides for the performance of any other duties that may be conferred upon them by any other acts of Congress. Now it is apparent, unless it can be shown that the act of 1848 confers the power to act under the treaty in the extradition of fugitives upon these officers, this clause in the rule has no application to the case; and that no such power has been conferred by that act, if I am not greatly mistaken, has been already demonstrated. The rule of the court adds nothing to the argument in favor of the power, as that depends upon the act of Congress which provides for carrying the treaty into effect, and which confers the power only upon Commis sioners, specially appointed by the Federal courts for this purpose. The treaty provides that the arrest of the alleged fugitive, and commitment for the purpose of a surrender, shall be made, "upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed."

The act of Congress makes no provision on this subject, except as it respects the admissibility of a species of evidence