The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-01
THE KANE ExrRApITIoN CASE.


oaater AND Great Britain o. 9Th August. l~49
whssrSsroS. January u. lss8.
In the hoprue Court Il ths Uu.ted States TO-DAY.
three opinions on abe hsb. fNinditiou sa-c ~sFy
delivered. Justice Caifun delivered Ia o,-.uias
enc, and held that uae sr,lmcats 81 counsel hlststi
and Brady, denying ne rrht power < Csn-l
Barclay 10 usurp tie fun,tons ~ the accredited
British Minister, upon a QUESTION q hnoad ,Biorna
tonal law wac not tansibl, tlt tAat thc British g..
vernment might delegate that power He dslsegod
An elaborate opinion adverse 20 the view ~ isas,
fancy, Nelson and Daniels. Justic. Curt folicwei
and differed with all his assoiAss upon miaof lssni-
hat concurred with Chief Justice Tausy and Nelson
and Daniels upon the question 81 nom ar-ii ton l.
the under the existing state ~ ats 81 Cougrss
The result, II We sr correctly informed. vii -.
that the Bench being equally divided gpen ne main
question Of jurisdiction The Frisones mnsi rm'n Il
AssesN until action j. taken 4, a0ro upon fhs mf'1t
CT until the writ be allowed ftsrt motion - -
part Of the prson.r-so thar tie case nai aEAh
come before the New lork Court. Here :
M ursrIct NELSON'S orpfON - rms CAst.
Justice Nelson saidIhe application for the ~
rest and delivery OF Thomas ha.ne "a. originally
made on the reqnisitoH Ut the British consul rc.i-
dent st the port OF New York. before Joseph hrids
ham, Esq, United States Commissioner for the
Southern District OF New York. A warrant wa
ESIed anu the arrest made. ana on TIE rtAfN ne
fore this officer an examination took place. upon =
charge that the fugitive had committed an assauf.
with intent 10 murder. upon one James Ralc, In
Ireland, on the 5th April, 1851. The Commission
lpcu hearing the allegation and proofs adjudg gel the
prisoner guilty and ordered that be be committed
10 pursuance Of the treaty. 10 abide Tie orlsT al
the President of the United States A petition va,
then presented 10 the Circuit Court for the Santlra
District Of New York holden by the District jude
for writ of habeas corpus directed TO the Marsha
70 bring up the body OF the prisoner; and. also !
sertiorar 10 the Commissioner IL bring M the pro-
ecedngs that had taken place before him; and upon
. full review OF all these proceeding on tho 9TH
July 1862, adudged that the commitment and de.
tention were for sufficient cause, and ordered that
the writ OF hatsas corpus be dismissed, and the
prisoner be remanded and continued ia the custody
OF the Marshal, under said commitment. On the l1th
July, copies of these proceedings having been for-
warded TO the Department OF State az WASHINGTON.
the Acting Secretary issued his warrant % the Mar.
shal having the custody OF the prisoner. directing
that he be surrendered To Mr.. Barclay, the British
Consul, or TO any other person persons duly az
thorized to receive the fugitive and transport him
Great Britain for trial. On the 22d July petition
was presented to me at my chambers, in C00pers-
town, on behalf OF the prisoner, Tor writ Of hdbetS
corpus, which declined allowing until the whole Of
the proceedings that had already taken place in the
matter were laid before Copies Of them
were subsequently furnished, and upon an eyaml-
nation, being satisfied that the Commissioner
had no jurisdiction the case, allowed
the writ the Sd Of August, retlraable be-
fore me at my chambers on the lltn OF the
same month and which return was made according
1y. AS the case was one on which entertained dil-
eerent opinion from thar OF the tribunal, before whom
the proceedings had taken place, not only TO the
jurisdiction OF the Commissioner but also in respect
10 their Interpretation OF the treaty and act Of Con
Srese passed to carry it into effect: and, toe ques
Sons involved were OF considerable interest OF them
selves and concerned deeply the two nations who
parties TO the treaty. on the return 10 the writ en-
tered order directing that the b. heard before
a m The form
II this court. The has now been heard ia full
bench, and am inclined 10 concur with my brethren
Mat we cannot entertain jurisdiction Of il, upon my
allowance Of the writ and adjournment OF the proceed
ings to be heard in this court. The practice is tn
kar one in the proceedings under this writ before the
Kings Bench in England q Burr Il. 400 5426 COS;
COmyn Digest, Habeas Colpgs-ed. 3 b. CONS 13l,
Xd. and Ell. 13i Leonard Natsons case. and which
furnished the precedent for that adopted by me ia
the case) That, however, is an original proceeding,
and in where the Court has original jurisdiction
10 hear and determine thu matters upon the return
and where the hearing may be had either before one
Of the Justices at Chambers or in full bench. But
according 10 the settled Of decisions in this
Court, we can only issue the writ aud entertain
jurisdiction Of the matters set forth on the rctarn
IN the exercise OF our appellate power; 6 Dallas L.
United States vs.. Hamilton; Crsnch AS, parte
Burford; ID, sI Sgrie Bollman and Swaytwout:
WI. SO, e1 pQrte kearney: Peters 1873, &C payfG
watkins; TO-. 5 Howe $50, erEarfe MetZger;) and
~ the power cannot be exercised ty one OF tie JUS
tces at chambers, there may be- grounds for 3 dis
tnction between TIE proceedings under the writ in
thus Court and IL DE Kings Bench The issuiug Of
NE writ, and pr0cee ding- before at chambers
0erIt, must undoubtedly be regarded as original
proceeding, aud not in the exercise OF an appellate
power l. this conclusion he a sound one the rene-
dy for the defect II the lay must be sought ia Col
nv who ean make provision for the issuing of the
rf IN VACATION nell a. III term in Ill cases where
tbs Court possesses jurisdiction to entertain pro-
eredines unasf a. The right OF the citizen 10 all-
peal to the court r.. me tegeat 2, th:s great wit
"a case OF an illegal Restraint u his ipefsy o-gAl
not 10 pe restricted o. the time d ~ sitting: hai'
as in all other where is jurisdiction In8y &c ex-
ercsed provision -hculd =" made Tor insttutnr toe
proceeding IN vacation. Tie prisoner hss now pre-
sented 10 Thu Court petition, pfaylnT ~ WrlI u
habsas corFa 70 be directed tothe Marsha lAa ~ ia
be brought up, together with tho caSe q commitment
With the ground of bis commitment, and ala9, 70! :
sertiorari to tie Circuit Court 70 bring ~ toe pr
ceedings that have taken place IN that court .1lch
.Gisemtarrasses the cas- of all exception y ~
form OF the application: ani the return OF We MI
ebsl and the dngs before the Circuit Co1F,
are now before ~, Oh this preliminary motion, ~
the agreement Of the counsel, and the case i ~
situation TO enable u IT, express an opinion upo1 the
merits IL is objected tnat this Court cannot enter
tain jurisdiction OF the case, upon tho petition,
return Of the Marshal and Of the proceedings before
the Circuit Court u the certOrar for the reason, u
appear supposed that the prisoner Is held ~ con
Anenent under the warrant OF the COMMISSIONED,
and not under the decision and order Of the circut
proceedings before tic Commissioner by virtue Of
his writ in the exercise Of il appellate power, but
only reach and review the proceedings and order
OF the Circuit Court, and the confinement OF the
prisoner is not under in pursuance Of the order OF
that court the proceedings under the writ here would
be a nudity The first case ia which this question
discussed at large by counsel and tue court was
that OF &c pdrfe Balman and swartvont They were
in confinement in this district under q warrant
from the Circuit Court upon charge of treason
against the United States. Two objections were
taken 70 the power Of this court 70 issue the writ ~
bring up the prisoners. lst. That il involved the
exercise of an original jurisdiction not given BY the
Constitution; and I'd, That if II WE the exercise 81
an appellate power, il was not within the 18th sec
ton OF the judiciary act which alone conferred the
authority ~ issue this writ Chief Justice Marshall,
who delivered the opinion in that case. admitted
the power could not ~ exercised as part Of the
original jurisdiction Of the court: but held, that It
possessed jurisdiction as an appellate power under
Tins l4th section. After answering the argument,
that tho mower " nMnrd the writ IL llmitnd he