The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-07-29
NE Ey1RAOHIoN OF THOMAS KkINE..
lnpsrtant opinion Of Judge Belts.
n1SsurumMt Of the Case for Another Week.
United states Cireuit Court.
Before Hon. Judge Belts.

DcfOfo nun. vuuEo DcoeS.
h tG Matter of Thomas kdsne.-On the Lrsc
LAY Of July inst, a habeas corpus was anowea py
- United States District Judge, directing the MAJ
iASl to have the body Of Thomas Kane, ~ him in' |
usisaped and detained, as it is said, With the cause
81 such imprisonment. and detention, before Tue
UAiAed States Circuit Court for tho Southern Ds
nase Of New York, forthwith 70 DO and receive, 1e
- into court, stating that he held and detained
- prisoner by virtue OF walrans anu polan.S
nsIt copies of which were annexed TO the !rie, ana
.t he also produced the orr gnai sneievs a. -
Jme last past, issued under the HAND ana seal OF
Jsseph Brigham of the tenor folowing:-ine
President Of the United states Of America; Io ,ns
tsist Of New York. and to his deputies or TO any or
eanAer Of them. Whereas, under just suspicious,
esneaaint hath been made under the treaty between
The United States and Her Majesty, the Queen OF
Great Britain and Ireland, concluded and signed at
Washington, on the 9th day Of August, 1872 on
cath before me, the undersigned, Joseph Brigham,
nsq, one Of the Commissioners appointed BY the
0euit Court Of the United States for the Southern
DRsArict Of New York, "a Magistrate that one
yheDas Kane Kaine, or Cain, then Of Coolen, IN
Ahe county of Westmeath, In that part OF the do
q about the fifth day of April, in the year one
Asssand eight hundred and fifty-one, at Ccclen,
aforesaid, and within the jurisdiction Of the said
Q.een feloniously and maciously FIRE pistol, lOad-
Cd with powder and lead, at ono james Bale, with
the intent to murder him, and thereby, then and
theSe, did wound the said James Bale. And that
the said Thomas Kane, or Kane or Gain, is fug'-
five from justice in relation thereto, and ~ now
somewhere within he jurisdiction OF the United
States Court for the Southern District Of New ork
We, therefore command you forthwith, 10 take the
Aaia Thomas Kane, or Kaine or Gain, and bring him
before me, the said Commissioner, or any other
magistrate, 70 the end that the evidence o. crlmi-
aality may be heard aud determined, pursuant 70
h treaty aforesaid Witness my hand and seal.
his fifteenth day Of June, in the year one thousand
eight hundred and fifty two, and Of the snderep-
deses Of the United States OF America, the seventy
s1yth. (Sgned) JosEPH RRDGHAM, IL !
United States Commissioner for the Southern
District OF New York.
Charles Ed yards, Attorney, Now y orr.
The second was commit ment under The hand
and seal of the same officer, bearing date, june ~
IS52, as follows June liz, 1872 committed Tor
sxaninnton. Joseph Brigham, U. s. Commits
ssoncr, ana afterwards commitments, bearing date
juno % 1862 of the tenor following
Ussusa States of America, SoEthsrs, District q
Ntio York. Ssh the mater of 1fsonlaS Haiae -
This ease having been heard before me, requisi-
tiOn, through Anthony Barclay, Esq, her Britannia
Aajestys Consul at the port OF New York, that the
said Kaine 10 committed for the purpose Of being
delvered up fugitive from justice, pursuant TO
The provisions of the treaty made between the
UDited States and Great Britain, August 8, 1872.
And and adudge that the evidence pIoduced against
the said KaiRe is sufficient in law to justify his
commitment on the charge C. assault with intent to
commit murder, had the crime been committed With
IN the United States. Wherefore, l 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 18th day Of June, 1872.
(Signed) JOSEPH BRIpGHAM, r..
United States Commissioner for the Southern
District Of New York.
Directed to the Marshal Of the Southern Distrie.
d New y ork.
Nesss Brady. Busted ana Ealmct appeared IN
counsel for the prisoner, and claimed his dis
charge from arrest. r.7sHE sa
Nr C. Edwa1ds appeared az con asel in support Of
his commitment, and moved that the writ Of hdts0s
corpus be discharged. He took two grounds OF ex-
aspticn to the competency of the Judge First,
That hs had authority to order the hateGs c0rPs
YeturBed into the Circuit Court, TO set solely in
Nat court, and adjudicate upon the subject; and.
second, That, whether the prisoner was rightsnly
Imprisoned and detained, ia this case were ques-
tens submitted by the Law Of the land 30 the dete-
nination of the Prssi dent Of the United St At
III Brady moved for leave 70 traverse the Mar
sssPs return, and to that end offered TO file ira
verse of the tenor following - t
xsoN HsBEAs CORPUS TRAVERSE 4s'f
Thomas kaine traverses the return made by the
1srtha Of the United States, and states that there
has been nc requisition made by the British On the
American government for the surrender Of said
Kahe. That Joseph Brigham, Esq by whom he
vas direchd to be arrested and has been committed
- not magistrate within the meaning Of the treaty
under which said Brigham processes to have acted,
sss was he ever duly appointed authorized to take
ssgniIanee o: the proceedings against said Kane.
IND the said KANE further states that no legal evil
aense was adduced 70 said brigham to show that
nnbu hdsno COui0 ne lawfully demanded or cuYreu-
eered under the treaty above mentioned, or wasev
gshty of any offence designated or included in that
treaty And the said Kana insists that neither the
yarrans nor commitment issued BY said Brdghara
ne person or liberty Of said Kaine. Dated July Let,
t66Z And to produce the evidence oral and docu-
nsnsary, which had been presented to the Cemmis.
ssonsr On 1ae nearing OF the application before him
49, OPINION OF JUDGE Belts
Belts, District Judge.-It was assentsd On both
des that the evidence before the Commissioners and
The traverse offered at this hearing, should be con-
Mdered as Professionally before the court, 70 enable
81 these particulars and, ALSO that it might be de-
ternined, fimportant to the merits Of the case in
what manner and to what extent the prisoner might
1s.sxamins the decision Of the committing officer.
The papers were received, however, with express
notice to the counsel on both Sides that the court
would hear no argument upon the question Of the
suilt or innocence of the prisoner Of the crime
charged against him, nor upon the policy propr-
ETY. Of his extradition from this country to England
In this posture of the debates there coui be no o,
oasion fol- The excited temperament Of the audtories
which thronged the court during. the period Of the
Argument and u Is 10 be deplored that the nantes
aasons with the crowd TO resist TIE detention OF Che
prisoner. should be such that the Marshal reported
70 the Court he could not venture - remove him
rom prison, in obedience to the writ, wthou. The
aid Of an armed force. The personal attendance Of
the prisoner was not indspensa Die, nor vas il deemed
% important es to warrant the hazard Of the conse.
quences which might attend his production in cour.
''A ehe Tiie, .ne munger not peing Lhlt ne would
% coneeeledo or substracted from the command Of
The writ ny the power which caused ais arrest bat
On The contrary, that nc would BE rescued from the
custody Of the law by mob. The points upon
which most stress was laid in the argument were
first, the prslmnary objections in support Of the
arrest, that nistriotJudge OF tho United States has
no power - hoda Circuit Court; that be cannot or
der writ Of hobeus corpus allowed before him, 20
be returned in tho Circuit Court; and that, under
ne treaty With G.ea. Britain and .ha act Of Con-
gress, Of Aughst IL, lSis power is conferred upon
the Executive Department solely, to determine
whetbera prisoner arrested ss fugitive from JUS
hce, shall be delivered back TO the country from
which be escaped, ard that the judiciary have no
sognizance q the subject. Do rot propose sn *.
tended consideration Of these propositions. The
tncuit sonrt - compose Of Justice OF the Su-
meme court ana judge ~ District Court, ami
authority isEyen 20 each of these iuJnes Ia I'd .ha