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In re Kaine.

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which will be noticed hereafter. The laws of New York, there. fore, are to govern ard regulate the Judge or Commissioner in hearing and determining the criminality of the prisoner, as he was found in that jurisdiction. This would be so even without the specific provision of the treaty, as the only mode of proceeding, in summary criminal proceedings before the Federal magistrates, is according to the practice before the State magis. trates in analogous cases. The thirty-third section of the Judiciary Act of 1789, expressly provides that summary proceedings against persons for crimes committed against the United States, shall be agreeably to the usual mode of process against offenders in the State in which he may be found. not aware of any other act of Congress on the subject. This accords with the construction given to the treaty in the act of Parliament, 6th and 7th Victoria, which requires the production of such evidence as, according to the laws of that part of her Majesty's dominions where the prisoner is found, would justify his apprehension and committal for trial, if the crime had been there committed. According to the laws of New York, regulating these summary proceedings, in criminal cases, evidence is heard, as well on behalf of the accused as against him, and should have been so heard in this case. The 2d section of the act of Congress, to carry into effect the treaty, provides that on the hearing upon the return of the warrant of arrest, “copies of the depositions upon which an original warrant in any such foreign country may have been granted, under the hand of the person or persons issuing such warrant, and attested upon the oath of the party producing them, to be true copies of the original depositions, may be received in evidence of the criminality of the person so apprehended."

This species of evidence is exceedingly loose and unsatisfactory, in any aspect in which it can be viewed; but certainly it cannot be characterized as evidence of any description, unless it appears that the magistrate in the foreign country taking the depositions and issuing the warrant, had jurisdiction of the case, and was competent to perform these acts. Unless the authority exists, the acts are coram non judice, and void. And the rule is universal, that in the case of magistrates, or other persons of limited or special jurisdiction, any party setting up a right or title under, and by virtue of, their acts or proceedings, must first show aflirmatively that they possessed jurisdiction or authority to act in the matter. The jurisdiction is never presumed. These are principles too familiar to require a reference to authorities. It was proved, in this case, that the person'taking the depositions in Ireland, and issuing the warrant, acted as a justice of the peace; and, it has been contended, that affords

In re Kaine.

evidence not only of his appointment to that office, but also of the competency of his jurisdiction. I cannot assent to this doctrine. I admit that evidence of a person exercising the duties of a public officer, and even reputation of the fact, may dis-. pense with the proof of a regular appointment, and if there is no question as to the extent of his power or authority, the proof will be sufficient. But if, in addition to the appointment, it becomes necessary to give evidence of his jurisdiction, neither his acting in the office, or reputation, furnishes any evidence of the fact. 1 Phillips, Ev. 432, 433, 450 ; C. & Hill's Notes, 280, 281; 3 Wend. 267. if a contrary principle can be found in the law, it is a little remarkable that the rule should ever have obtained that, in an action founded upon the adjudication or decision-of a magistrate, or any other officer of special and limited jurisdiction, the party claiming a right under it, must aver and prove jurisdiction in the particular case, for the very adjudication, or decision, would afford all the necessary evidence of the officer acting as such within the principle contended for. In other words, the judgment would afford evidence per se of the jurisdiction, and in all cases dispense with further proof, and thus every inferior magistrate would be placed upon the footing of courts of general jurisdiction.. I do not think it necessary to pursue this branch of the argument further; and am satisfied that the Commissioner acted, in the arrest and commitment of the prisoner, without any competent evidence of his guilt of the crime alleged against him. To permit the copies as evi. dence, without proof of the jurisdiction of the inagistrate, would be against all principle, and might lead to the most scandalous abuses in carrying into execution the stipulations of the treaty. This species of evidence is very differently guarded, in the act 6th and 7th Victoria. There, copies of the depositions laid before the government, and upon which the proper officer issued his warrant to the magistrates, authorizing them to institute proceedings to arrest and commit the fugitive, are those only permitted to be given in evidence. In other words, copies of the depositions upon which the government acted in the matter, are admissible as evidence of the criminality. The original of these are those upon which our government make the requisition; and, of course, the good faith of the nation is pledged that they were taken before competent officers, and that the facts stated in them were true. But, in the case before us, the copy was taken by a police officer of the foreion country, and produced here before the Commissioners, without the sanction of either government, and without any competent evidence of the authority of the person before whom it was taken. There was no evidence of the authority of this magistrate, or of any

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In re Kaine.

authority under the treaty, for the arrest of the accused, before the Commissioner, but what depended upon the oral testimony of this officer, and the statement of the Consul, of what had been represented to him in the matter. The Consul does not aver that any of the facts stated by him, in what he calls his requisition upon the Commissioner, were within his own know. ledge. Even the authority attempted to be derived from the Under Secretary of State in Ireland, depends upon the oral statement of this police witness; and I assert, and do so upon the responsibility that I know belongs to my place and the occasion, that there is not one word or scintilla of evidence in the record of the Commissioner, upon which the accused in this case has been tried and adjudged guilty, but depends entirely and exclusively upon the oral examination of this foreign police officer, who does not pretend that he had any personal knowledge of the commission of the crime. His knowledge only extends to the verification of the copy of the deposition taken before a person in Ireland, of whose authority to take it we know nothing. To those familiar with the criminal laws of this country, I need not say that such evidence, against any person charged with an offence against our laws, would be inadmissible and utterly worthless, and especially so, under the laws of the State of New York, which must goveru in this case, unless otherwise regulated by act of Congress; and equally so, in my judgment, within a sound construction of the act providing for the admissibility of these copies of a deposition, taken before the foreign magistrate.

I have thus gone over the case much more at large than I should have deemed it necessary, were it not for the very great diversity of opinion in respect to it among my brethren. I have regarded it az a case of considerable importance, not only from the delicacy of the power involved in the treaty, the provisions of which we are called upon to interpret, but also from the principles lying at the foundation, which concern the rights and liberty of every citizen of the United States. I cannot but think the denial of the power to grant the writ of habeas corpus, in this case, is calculated to shake the authority of a long line of decişions in this court, from Hamilton's case, decided in 1795, down to the present one. That case, as understood and expounded in the case of Bollman and Swartwout, in 1807, which received the most deliberate consideration of the court, and to which the doctrine in Hamilton's case was applied, held that this great writ was within the cognizance of the court, under the 14th section of the Judiciary Act, in all cases where the prisoner was restrained of his liberty, “under, or by color of the authority of the United States," and no case has held the contrary since that

In re Kaine.

decision, with the exception of that of Metzger, decided in 1847, which, I have already stated, stands alone, but which distinctly admits the power and jurisdiction of the court in the case before us. This writ has always been justly regarded as the stable bulwark of civil liberty; and undoubtedly, in the hands of a firm and independent judiciary, no person, be he citizen or alien, can be subjected to illegal restraint, or be deprived of his liberty, except according to the law of the land. So essential to the security of the personal rights of the citizen was the uninterrupted operation and effect of this writ, regarded by the founders of the Republic, that even Congress cannot suspend it, except when, in cases of rebellion or invasion, the public safety may require it. I cannot, therefore, consent to cripple or limit the authority conferred upon this court by the Constitution and laws to issue it, by technical and narrow construction ; but, on the contrary, prefer to follow the free and enlarged interpretation always given, when dealing with it by the courts of England, from which country it has been derived. They expound the exercise of the power benignly and liberally in favor of the deliverance of the subject from all unlawful imprisonment; and, when restrained of his liberty, he may appeal to the highest common-law court in the kingdom, to inquire into the cause of it. So liberally do the courts of England deal with this writ, and so unrestricted is its operation in favor of the security of the personal rights of the subject, that the decision of one court or magistrate upon the return to it, refusing to discharge the prisoner, is no bar to the issuing of a second, or third, or more, by any other court or magistrate having jurisdiction of the case, and it may remand or discharge, according to its judgment, upon the same matters. 13 M. & Welsby, 679; 9 Ad. & Ellis, 731; 1 East, 314; 14 Id. 91 ; 2 Salk. 503; 5 M. & Welsby, 47. Upon the whole, I am satisfied, that the prisoner is in confinement under the treaty and act of Congress, without any lawful authority. I am of opinion, therefore, that the writ of habeas corpus should issue in the case, to bring up the prisoner.

1. On the ground that the judiciary possesses no jurisdiction to entertain the proceedings under the treaty for the apprehension and committal of the alleged fugitive, without a previous requisition, made under the authority of Great Britain, upon the President of the United States, and his authority obtained for the purpose.

2. That the United States Commissioner, in this case, is not an officer within the treaty or act of Congress, upon whom the . power is conferred, to hear and determine the question of crimi. nality, upon which the surrender is to be made.

In re Kaine.

3. That there was no competent evidence before the Commissioner, if he possessed that power, to issue the warrant. And

4. Upon these grounds, the Circuit Court ought to have discharged the prisoner, instead of remanding him into custody, and its decision in the case is a proper subject of review by this court, by virtue of the writ of habeas corpus.

Mr. Chief Justice TANEY.

I concur in opinion with my brother Nelson. The questions involved in this application are very grave ones; and I should have felt it to be my duty to state the grounds on which my opinion has been formed, had not the whole subject been so fully and, to my mind, satisfactorily discussed by him. But, concurring, as I do, in all that he has said, I shall forbear any discussion on my part, and content myself with expressing my entire assent to the opinion he has just delivered.

Mr. Justice DANIEL.

The question just disposed of by the court, involving the lives and liberties, not only of those who from abroad may seek protection under our laws, but the lives and liberties of our own citizens, is undoubtedly one of the most important which can claim the vigilance of our government in every department. Having deliberately compared my own views of this vital question with what has been so well expressed by my brother Nelson, and concurring, as I do, in all that he has said upon it, I deem it unnecessary to do more than thus solemnly to attest my adherence to the great principles of law, justice, and liberty vindicated by him.

Order.

On consideration of the petitions for writs of habeas corpus and of certiorari, filed in this case, and of the arguments of counsel thereupon had, — It is now here considered, ordered, and adjudged by this court, that the writs prayed for be, and the same are hereby, denied; and that the said petitions be, and the same are hereby, dismissed.

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