The daily union. [volume] (Washington [D.C.]) 1845-1857, 1853-04-28
From the Evening Posi-, April rs.
Decision of the Kane Case

Judge Nelson OF The United States circuit court gave
decision this morning in the case OF Thomas Kane
claimed fugitive from justice under the treaty be-
the United States and Great Britain OF OH August
1912. He said, in substances
II will be recollecled that The prisoner was originally
spprehended under warrant issued by Commissioner
Brigham. under the treaty, the application OF Mr. Bar
clay the British consul at the port OF New York. on The
18th June, 1852 upon charge OF assault upon James
Rae, 10 Ireland with intent TO murder; and that upon
hearing the allegations and proofs, the commissioned on
the 29lh June following found him guilty OF the charge,
and directed that he be detained in custody IN pursuance
OF the provisions OF the treaty. 10 abide The order oil the
President OF the United States that thereupon, on The
Isl day OF July writ OF habeds eopss sued out by the
prisoner reurpable before the United States circuit court
Tor the southern district OF New York. the Hon Samuel
r. Belts, district Judge, presiding upon an alleged illegal
detention under The warrant OF the commissioner and
that upon to the writ by the MARSHAL and OF the
proceedings that had taken place before the commissioner
the court, after consideration held them TO be legal and
Valid and on the 9th OF The same month dismissed the
writ and emanded the prisoner TO the custody OF the mar
shall under the previous order OF by the com
missioner and that The 9TH Jay following the proceed
ngs having been forwarded TO the proper department al
Washington the Acting Secretary OF State issued his war
rant directing that the prisoner be surrendered and dev-
cred pto Mr. Barclay, her Britannia Maes,ys consul AL
this stage OF the proceedings application was made
before me, at chambers for writ OF haoea corpus, to
bring up The prisoner upon an alleged Illegal detention
and imprsoA meni, which refused unl the whole oil
the proceedings that had taken place before the commits
and circuit court LAID before us These were
subsequently, furnished and, upon full aud careful ex
sessed jurisdiction over the case and that the proceed
ings other respects Irregular and not warranted
by law But instead Of dIscharging the prisoner differ
ing in opinion did from my brother IN the circuit
court, and deeming OF the questions involved OF
sufficient magnitude and public interest to Justify the sub
mission of them 10 the highest Judicial tribunal in the
government, adjourned the 10 the next term oil
The Supreme Court OF the United States, in conformity
with the established practice in the Kings bench IN Eng
land in similar That court, after argument and
due consideration, and for reasons which were sastac.
tory 10 me- distinguished the adjournment OF the case
from chambers 10 the terms from similar proceeding in
The Kings BENCH account OF the limited jurisdiction OF
the Supreme Court in respect 10 original proceedings their
powers being mainly appellate, and consequently dis
missed the adjourned for want OF jurisdiction.
Tbe case, however, presented TO that court in
other form by the prisoner applying TO il directly
for writ OF habcas corpus, the application accom-
panied with the proceedings that had taken place before
the commissioner and Judge Belts In the circuit court
But the questions involved failed 10 meet judicial de.
termination that application, In consequence OF Sc
rions diversity OF opinion among the members OF the
court, majority OF my brethren not concufrng IN the
interpretation TO be given 10 the treaty and act OF
Congress passed in pursuance thereof IN respect TO
the jurisdiction Of the commissioner, under whose order
the prisoner had been committed for the purpose OF the
surrender to the British authorities The application
was consequently denied, and order entered dismiss
ing the petitions The before me- together with the
questions involved the return OF the marshal to the
writ OF habeas corpus which were adjsurned 10 the SUI
preme court having been dismissed tor want OF jurlsdc
ton rather mol having been entertained Tor want OF
ii, necessarily remained for final hearing at chambers,
the prisoner in custody under the authority OF
that writ, and must continue IN such custody until dis
charged emanded Tor the purpose OF being dealt with
as directed by the former commitment The hearing
upon the. return adjourned accordingly 10 the frs
Monday of this month and the counsel on both sides
being advised thereof have appeared and submitted their
arguments upon the several questions arising in the
case.
After recapuIang the argument of counsel and argu-
ing the question al great length, he concluded follows
We think, therefore, the requisiton should have been
made in the first instance upon the Executive, and his
authority obtained in order TO warrant the h,erposlion
OF the judiciary and further that the commissioner be-
fore whom the application was made possessed juIis
dcon Of the case, not being officer within the trea iy.
or oil Congress prehxed IN pursuance theeo and that
evidence in the upon which the offence found
was incompetent and hence dd not warrant the finding
Of the magistrate The proof in all under treaty
of extradoD should be not only competent but tu and
satisfactory, that the offence bad been committed by the
fugitive the foreign jurisdiction sufficiently so 10
rant conviction IN the judgment OF the glstrale, OF
the offence with which he is charged. If sitting upon the
final trial and hearing of the case No magistrate should
order surrender short OF such proof. The result is,
that The prisoner IS entitled TO be discharged from I'm
prisonmeni under the warrant or order OF The commits
sioner, and consequently from arrest or confinement
der the warrant issued by the Acting Secretary OF State,
in pursuance thereof But as the discharge is in conse
quence of egalty in the proceedings under the treaty.
and the question of surrender is of which can
entertain jurisdiction, ready to hear any further
evidence on behalf OF the application which the repre-
sentative OF the British government may see fit to pre-
sent.
After the reading OF the opinion in compliance with
the intimaton contained in the closing paragraph MI
Jordan counsel for the British government arose and
stated that he would be glad to offer further evidence
the case, and be thought he should be able show con
clusively that the prisoner (gbo present in cour
was guilty of the charge made against him. He should
not, however offer any evidence OF previous application
to the Executive The Judge remarked that according to
the decision he bad given, that would be necessary pre-
requisite to any further proceeding before the judiciary
Mr. Busted, one of the counsel for the prisoner here
arose, and stated that warrant had Just been put
into the hands OF the marshal for the OF Kane. He
moved, in the warrant should be executed for writ
hnbeas corpus, bring the prisoner up Immediately
Mr. oConor, in behalf Of the marshal. stated that,
he understood the decision, this warrant in di.
rect conflict with it, for, although the warrant did not
recite upon its face whether previous application had
been made TO the Executive not, yet well known
that such application had been made and he should
therefore, advise the marshal (who had asked his coun
seD not TO it, The Judge said the marshal would
be safe 10 following his advice.
Mr. Jordan said that he bad feeling in relation to
the matter; be only desired that the might take
such direction would enable il 10 be brought before
the Supreme Court for decision II important that
there should be decision which would furnish guide
for similar in the future. Judge Nelson replied
that he felt its Importance much any one, and had
done all n his power TO bring the be fore that court
but they had refused 10 acknowledge their jurisdiction
and the had been long time pending he did not
feel authorized to bold the prisoner longer in custody
and he should therefore direct his discharge. There
some manifestations OF applause in the at this
decision, and the prisoner Immediately hurried out
II shn E.-k tr.. a..