The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-05-05
me K..s. c...-opl.as. Of Jadss Nelson.

The Kaine cass-0rinisn OF Judge Nelson.
Reported for he Nep Ysrk Journal If Commerce
Ia the United States circuit court at New York.
on the 26h OF April, 1863, in the matter of Thomas
KANE, claimed a. fugitive from Justice under
the treaty between the United States and Great
Britain, judge Nelson said
This case should have been d;.nosed of st
an carrier DAY; but, having heard II in the
midst Of circuit, the constant pressore Of bu-
nneos upoa me jury calendar has compelled me
Pos.Pone tne consideration Of it. shall now
proceed 70 exPress briefly az ma be- the views
ensesan OF the case in the present posture of the
4 h raoamg winch have taken place in it. 1t will
Drebended Ina. the prisoner was originally APP
Rr;drsseu unoer warrantissued by Con missioner
n1ognam, under the treaty, on the snniicstion IF
VI DaIciay' the British consul at the bort OF New
aasanh upon James 81 B sune 1852 upon charge Of
70 muroef; and that, upon hearing the .iIeoations
and proofs, the commissioner. On ths oosb IT,
directed that .td h h. n,% guilty Of the charge and
ance OF the provisions of the treaty. r. abids IN.
order OF the President Of the United States. that
thereupon' on the LIST July, writ of habeas CORFU,
was sued out by the prisoner returnable before H.
United States circuit court for the southern district
of New York, the Hon. Samuel R. Belts. dstrict
judge. presiding, founded upon an alleged illegal
detention under the warrant of the COMMISSIONS:
4 and that, upon return to the writ by the mar
shall, and of the proceedings that had taken place
before the commissioner, the court, after copsid.
| GRAFTON, held them to be legal and valid and on
the 9Th of the same month. dismissed the writ and
remanded the prisoner to the custody OF the mar
| shall under the previous order of commitment by
the commissioner; and that, the 18th of July
following, the proceedings having been forwarded
| to the proper Department at Washin gton, the
| Acting Secretary of State issued his warrant,
| directing that the prisoner be surrendered and
delivered up to Mr. Barclay, her Britannia msjes-
| At this stage Of the proceedings an application
| was made before me. at chambers for writ of
| hd6eas corpus, to bring up the prisoner upon an
alleged illegal detention and imprisonment. which
| refused until the whole of the proceedings that
had taken place before the commissioner and cir
cult court we're laid before me. These were sub
sequently furnished, and. upon full and careful
examination, became satisfied that the commits
soner possessed no jurisdiction over the case and
that the proceedings in other respects were rregu-
lar, and not warranted by law. But instead of
discharging the prisoner, differing in ion as
did from brother in the nit court and deem
ing some of the questions involved of sufficient
magnitude and public interest to justify the sub
mission OF them to the highest judicial tribunal in
the Government, adjourned the case TO the next
term of the Supreme Court of the United States in
conformity with the established practice in the
Kings Bench of England in similar cases. That
court, after argument and due consideration, and
for reasons which were satisfactory to me, distin-
gulshed the adjournment of the case from cham
bers to the term, from a similar proceeding in the
Kings Bench, on account Of the limited jurisdic-
proceedings, their powers being msinIy appellate,
and consequently dismissed the adjourned case for
want of jurisdiction.
The Gaze, however, was presented to that court
IN another form, ON an application to it by the
prisoner directly for writ of habeos corpus the
application accompanied with the proceedings that
had taken place before the Commissioner and
Judge Belts In the circuit court But the questions
involved failed to meet judicial determination on
that application in consequence OF serious diver.
silly OF opinion among the members of the court, 8
majority OF my brethren not concurrng in the in
depreciation to be given to the treaty and act of
congress passed In pursuance thereof, nor in
spect to the jurisdiction of the Commissioner under
whose order the prisoner had been committed for
the purpose OF the surrender to the British authori-
ties. The application wac consequently denied,
and an order entered dismissing the petitions
The case before me, therefore, together with the
questions involved on the return of the marshal to
the writ of habeas corpus which were adjourned to
the supreme Court, having been dismissed for
want OF jurisdiction, rather not having been en-.
tertalned Tor want OF IT., necessarily remained for
nnai hearing at chambers, the prisoner was in
custody under the authority OF that writ, and must
continue In such custody until discharged, or else
remanded Tor the purpose of being dealt with
directed by the former commitment The hearing
| at chambers upon the return was adjourned
cordingly to the fret Monday of this month; and
the counsel on both sides, being advised thereof
have appeared and submitted their arguments up,
on the several questions arising in the case.
The learned counsel appearing on behalf of the
British authorities has obiected-I. That the deci-
sion OF Judge Belts, sitting in the circuit court,
upon the return to the writ of hdbeas corpus before
that court, it being court of competent jurisdc-
ton to hear and determine the question whether
the commitment under the commissioner q order or
warrant was legal or not, is conclusive and bar
to any subsequent inquiry into the same matter by
virtue OF this writ do not understand the law.
The learned counsel has referred to Barry's Gaze
(25 Wend., 81, 1867 as authority. The question
In that case arose upon the act Of the State of New
York regulating the proceedings upon the writ of
habeos corpus; and if the decision there is as cup
posed it would not be authority to govern
this case. The question there, however, which
arose upon the proceedings of a parent to
obtain the possession OF an infant child from
the custody and of the mother, who had
separated from the husband, is not analog-
GUS. But the conclusive answer to this objec-
ton Ia, that the proceedings upon this writ in
the federal courts not governed by the laws or
regulations of the States the subject but by the
| common law OF England it stood at the scoop
ton OF the Constitution, subject to such alterations
| as Congress may fit to prescribe, g Peters
| 2l9, ex parte Tobias Watkins; Brock, c. c. r.,
AT, ex parte Randolpb;) and, according to that
system OF laws, SO guarded lie il in favor of the
| liberty of the subject, that the decision Of one
| court or magistrate upon the return TO the writ
refusing to discharge the prisoner is no bar 10
| the issuing Of second third, or more, by
any other court or magistrate having juris-
dlcton OF the case, and may remand or
discharge according to its judgment upon the
same matters. gig Mees. Welsby, 67e;5 ID. as
East. 3l4; ID IT, 9I-2 Salk. R. 500; 9 Ad. & Ell
73l In one of the referred to the prieoner
had obtained this writ from two of the highest comb
mon law courts of England, and also from the CHEF
justice of the Kings Bench chambers in sue
cession, and their judgment upon the cause of his
Imprisonment; and the learned judge. in delivering
bis opinion in the last application, ailudng to the
decision on the former wrts refusing to DISCHARGE.
observed: "Fhat this was objection TO the hear.
ing on that occasion, as the subject in confinement
had right to call upon every court or magistrate
in the Kingdom having Jurisdiction of the matter
to inquire into the cause of his being restrained of
bis liberty" The decision, therefore, of the cir
cult court upon previous writ of habeas corpus
obtained on behalf of the prisoner refusing to dis
charge him, will not relieve me from inouirinp
into the legality of the imprisonment under the
order OF the commissioner upon the present appli-
cation. The learned counsel also asked permission
to argue the questions arising upon the construc-
ton of the treaty and act of Congress passed ia
pursuance thereof; and also upon the Jurisdiction
OF the commissioner, and the competency of the
evidence before him, upon which the prisoner was
found guilty, inasmuch as these questions had not
been argued before the Supreme Court on the side
OF the British government, counsel appeared
on that argument in its behalf The request was
readily granted and it is matter of qualification
to me that have had the benefit of the inyestira
tons and views of the learned counsel in aid of Ihs
further consideration Of the case which have been
called upon to give to the very important and