New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-04-27
THE KANE CASE.
TIE Extrndition Case Decided-Kaise set M I,A.
Opinion Of Judge Nelson.

IN ihis case, being an application the part ~ a.
Brtsh Government for the surrender Of Kaine so -,
lunder the Ashburton Treaty on cldfye Of aiemn,
murder and his discharge demanded on haJeas eor,,
the ground mat the evidence complaint Ireland va, n
suheleh'' ana VARIOUS irregularities in the proceesin
name was oroush' up Yesterday forenoon and decsio,
rendered by the Judge, who considered that il
in order TO make arrest valid under tho rrea, a..
order for arrest shall have emona,ed from tho
the Inted States, which rot done here and Eo -
sequently, must be discharged
Mr. Jordan, on behalf of the application reouo,l ,b.
the Court would remand Kane until they had had a .
resrgue the and bring before the fun Court a, W.
ington and the law finally settled.
The Judge said he had objection to have The e,,.
again argued before him if the counsel were PREPARED -
show that the British Government had in the frs,
applied to the Executive Government of the United Sat-
if he was able to show that to morrow or next day
willing to remand the defendant but the case has bee,
der consideration for year and it is time shOuh.
settled
Mr. Jordan said he could undertake, within weaL
to show that such application had the first instance bean
made and he did not know whether he could all or NOT
but he thought the question open one and that Tia
Supreme Court had refused TO entertain the case on TIA
ground that had not been brought regularly before them
he wished to have the argued before the Judge and
then taken by the Supreme Court.
The Judge SAID nat l. precisely WhN mas Deen Ia
endeavored 70 convince his brethren that they had u
ton but they did not agree with him and the matter rested
where il was.
Mr. Busted one OF the counsel for Kane, stated that
new warrant was issued Monday by COMMISSIONS Ma,
ton on application of Dir Dayton associate with Mr. j. ks
the rerrest of Kane and placed in the hands of the Mar
shall with orders to arrest kane lie inquired Kane must
be considered under notwithstanding the decision.
II so they ready to bring new writ of habeas cor
pus Mr. Busted readthe warrant Mr.. Brady on the
same side alluded to the delicate position in which the
sci for the British Government had placed the Marshal BIT
neither the Marshal nor himself and friends would shrink
from the discharge of their duties If he arrested again
they would bring writ of habeas corpus and have
the matter argued and decided at once
Mr. Jordan remarked that in the event of Kainebe
ing discharged he did not know but they might arrest him
again on new evidence. He had feeling the subject
but he thought the matter ought to b. settled that both
governments should understand how under the treaty
of ls42.
Mr. Brady remarked that he would ask again whether or
not kaine under arrest.
Mr. OConor L. $ District Attorney said that the Mar.
shall was unwilling to arrest KANE fearing he mil h act in
d.obcdience the order of the Court lie would ask bis
Honor il he had decided that it condition precoden,
that the action of the executive Government of the United
State, should be in the first instance applied for.
The Judge replied that he had so decided
Mr. orc then remarked that the warrant does not rece
that was nor is it pretended the other side that has
been MIR Jordan admitted such to be the factl and no
would not therefore, advise the Marshal to execute it
The Judge then directed that Kane shouldbe discharged
The latter then rose being accompanied by number Of
friends and left the Court room There demonstrs-
ton of applause which Immediately suppressed but
on getting into the Park outside of the Court his friends
sent up lively cheers.
The following is the decision of Judge Nelson, delivered
at the opening of the Court.
UNITED STATES CIRCUIT C0URT-Ar CHAMBERS.
Before Judge NELSON.
MATTER Or THOMAS KANE,
Claimed as agrs r0 Ja',ct aee ne Iycay Ssce'" The Uad
Judge Nelson said This should have been disposed
Of at earlier day. but having heard in the midst Of
circuit the constant pressure of business upon the Jury
Calendar has compelled to postpone the consideration
of it, shall now proceed to express briefly may b.
he views entertain of the in the present posture
the proceedings which have taken place IN IT, IL VIII Dc
recoected that the prisoner originally apprehended
under warrant issued by Commissioner Brigham under
~ Treaty, the application OF Mr. Barclay the British
Consul at the port of New Ork. the 10Th June 1852
upon charge assault upon James Bale in Ireland with
intent to murder and that upon hearing the allegations
and proofs the Commissioner on the goth June following,
found him guilty OF the charge and directed that he be de-
tanned IN custody in pursuance Of the provisions of the
Treaty abide the order OF the President OF the United
States that tereupon the LIST Of July writ OF habeas
corpus sued out by the prisoner retunabe before the
uited States Circuit Court for the Southern District OF
New ork Hon Samuel H. Belts DstrictJudge presiding
founded upon alleged illegal detention under tie war
rant of the Commissioner and that return TO the
writ BY the Marshal and OF the proceedings that had taken
place before the Commissioner the Court after considers
ton held them to be legal and valid and on the 9Th tho
same month dismissed the writ and remanded the prisoner
10 the custody of the Marshal under the previous order OF
commitment by the Commissioner and that on the I'm
of July following the proceedings having been orwardci
10 the proper department al Nashngt0n the acting Scre-
tary of State issued his warrant directing that the prisoner
be surrendered and delivered up to Mr. Barclay her bn'
fannie Majesty's Consul
AT this stage of the proceedings application was made
before me- Chambers for writ Of habeas corpus 70
bring up the prisoner upon an alleged Illegal detention Sna
IMPRISONMENT which refused until the whole OF the pro-
ceedngs that had taken place before the Commissioner
and Circuit Court were laid before These subse'
quently furnished and upon full ana careful exannauos
became satisfied that the Commissioner possessed nou
dicton over the case end that the proceedings IN on
resnects were irregular and not warranted by law Bmm
stead of dscharging the prisoner differing IN opinion AL
did from nv brother in the Circuit Court ana deeng some
of the questions involved Insufficient magnitude ana paoc
interest 10 isty the submission of them TO the highest judi
cal tribunal in the Government adjourned tne case JUNG
next term of the Supreme Court OF the United oaes
conformity with the established practice on the hngs
Bench of England IN SIMILAR cases lhat court siser OF
gumen and due consideration and for reasons which were
satisfactory TO me- distinguished the adjournment Oh ne
case from Chambers to the term from similar proceeding
in the Kings Bench account of the limited Jurisacuo
of the Supreme Court in respect 20 original proceeng
their powers being mainly appellate and consequently %
missed the adjourned case for want OF Jurlsdlcuoh %
case however presented 20 that court nanonef ol
an application was made TO il by the prisoner directly r
writ of habeas corpus, the application accompanied w.h
the proceedings that had taken place before the Comu
sioner and Judge Bets in the Circuit Court
But the questions involved failed to Judicial deter
mnaton on that application. in consequence OF serou
diversity of opinion among the members Of tne .ous
majority of my brethren not conourring ~ ne n'Ip
lion 10 be given TO the Treaty and Act Of Congress
pursuance thereof nor in respect to the hasa
the Commissioner under whose order the prisoner y, h Rr
omn,ted for the purpose OF the surrender I'd .he
TT The appcaion was consequently denied and
anu order entered dssng petitions The case before
me- together with the questions involved on hns e wsqe
the Marshal to the writ OF naoesS 49, dismissed for