The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-27
TEE KAmR ExTRADzTIoN CASE.
DISCHARGE o. The PnIsoan.
Archer Warrant Issued for his Arrest
h RsAnsaA u he narshab under the Advice
- ~ .. .. Attorney, Fsunded o tho
ophlsa q Ne Judge, to execute It.

~ ~ ws u AssOSu0ys ROuno0o - ss0
oplaAeA q Ne Judge, to exeeute II.
o, ateA States Circuit Cours-At Chamber.
Before Hon. Judge Nelson.
This being the day on which understood that the
judge would deliver his decision in the OF Thomas
Kains the Court crowded but the majority of the
psssess present appeared be officers of police who
were ready aid the Marshal and his depu les
ing the prisoner in the event Of the decision being
his extradition The Marshal Mr.. Hlyer took the pre-
caution TO have the prisoner brought up from the Tombs
to the United States Court At early hour in the
ing, In order to avoid excitement much possible
At the stting Of the Court KANE brought in and
seated his counsel Messrs. J. Brady Busteed,
and r. Emmett Mr.. A. L. Jordan in attendance for
the Brsh Consul Kaipe looked pale aud careworn but
We understand that been suffering from illness for
some time past
FUGITIVE FROM JUSTICE UNDER THE TREATY BE-
TWEEN THE UNITED STATES AND GREAT BRITAIN
or THE 9TH AUGUST, lS42.
Judge Nelson said-This case should have been dis
posed Of at earlier day but having card it in the
midst OF circuit the constant pressure of business
upon jury compelled me to postpone the
consideration of it. shall proceed to express as
briefly may be- the views entertain Of the in the
present posture Of the proceedings which have taken
place in It, 1t win be recolected that the prisoner
originally apprehendsd under warrant issued by Com
missioner Brigham, under the treaty the application
y,
York the 18th June 1852, upon charge of assault
upon James Bae in Ireland with intent to murder and
and the
Of the charge and directed that he be detained ia
tody In pursuance Of the provisions Of the treaty to
abide the order of the President of the United States
that thereupon, on the 1st July. q writ of habeas
corpus was sued out by the prisoner, returnabs
ern district Of New York, the Hon. Samuel R.
Belts. District Judge, presiding founded upoa
alleged illegal detention under the warrant of the Com
U1sai and nj ret a " w
Marshal and Of the proceedings that had taken place be
fore the Commissioner the Court after consideration
held them be legal and valid and, the 9th of the
same month dismissed the writ and remanded the priso
TO the custody of the Marshal under the previous
order of commitment by the Commissioner aud that
the 18th Of July foo~ng the proceedings having been
for.arded to the proper department at Washington The
acting Secretary of State issued his warrant directing
that the prisoner be surrendered and delivered to Mr.
Barclay, Ter Britannia Majestys Consul At this stage
at chambers for writ OF babeas corpus to bring the
prsODer upon an alleged illegal detention and inprson-
ment which refused until the whole Of the proceed
ings that had taken place before the Commissioner aud
Circuit Court aid before me. These subse
quently furnished and, upon full and careful esamna
ton became satisfied that the Commissioner
jurisdiction the and that the proceedings in
other respects irregular and not warranted by law
But instead Of dscharging the prisoner, differing in
opinion did from my brother in the Circuit Court,
and deeming some OF the questions involved Of sufficient
magnitude and public interest to justify the submission
of them to the highest judicial tribunal in the govern
ment | adjourned the case to the next term of the
Supreme Court of the United States in conformity with
in similar cases. That court after argument and due
consideration and for which satisfactory to
chambers to the term from similar proceeding in the
Kings Bench ON account of the limited jurisdiction Of
tho SUPREME Court in respect to original proceedings
their powers being mainly appellate, and consequently
dismissed the adjourned case for want of jurisdiction
The case, however, was presented to that court in
another form An application made to by the
directly for . writ Of habcas 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 judi
cial determination in consequence of serious
diversity Of opinion among the members Of the
court majority Of brethren not concurrng in the in
depreciation to be given to he treaty and act of Congress
passed IN pursuance thereof nor in respect to the urs
had been COMMIT for the purpose of the
der to the Brsh authorities. The application con-
ttons. The before therefore, together with the
questions involved the return Of the Marshal to the writ
Of babeas corpus which adjourned to the Supreme
Court having been dismissed for want of jurisdiction
rather not having been entertained fer want
in custody under the authority Of that writ and
must continue in such custody until discharged or ee
remanded for the purpose Of being dealt With nth
hearing at chambers upon the return was ad.
journed accordingly to the first Monday. Of this
month and the counsel both Sides being advised there
of have appeared and submitted their arguments upon
the several questions arising in the The learned
counsel appearing on behalf OF the British authorities has
objected-1 That the decision If Judge Belts, stAng in
the Circuit Court upon the return to the writ of habeas
corpus before that court it being court of competent
the commitment under the Commissioners order
warrant was legal not, is conclusive, and
tiers BY virtue of this writ do 30 understand the
law. The learned COUNSEL has referred to B.rry's
case (2s Wend., 81, l0G) authority. The ques-
ton in that under The act of the State OF
New York regulating the proceedings the writ OF
If would not be authority to govern this The
question there however, which upon the proceed
ipgs of parent to obtain the possession of infant
child from the custody and care o. the mother who had
separa ed from the husband. ia not analogous But
the conclusive thi. objection IS that the
csedngs upon this writ in the federal courts not
governed by the laws regulations OF the States the
subject but by the common law of Enga ad it stood
at the adoption of the constitution subject such al
210, pArte Tobias Watkins; Brock, c. c. R. 447 ex
psrte Randolph) and according to that system of laws
guarded is it in favor Of the liberty Of the subject
that the decision of court magistrate upon the
return to the writ refusing to discharge the prisoner is
any other court magistrate having OF the
case and may remand discharge according to its udg
h AZ East. 314 Alb 81 q salk. 5O3 Ad ELL 1917
In of the referred the prisoner had obtained
England also from Chief Justice Of the Kings
Bench at chambers in succession and their judgments
upon the cause of his Imprisonment; and the learned
Judge in delivering his in the last application al
ludng TO the decision the former writs refusing to dis
charge, observcdthat this was no objection to the
hearing that occasion tee subject in confinement
had right to call every court magistrate in the
kingdom having jurisdiction OF the matter to inquire
decision therefore Circuit Court upon previous
writ Of habeas corpus obtained behalf of the prisoner
refusing to discharge him will not relieve me from in
quring into the legality OF the imprisonment under the
order Of the Commissioner the present application
The learned counsel also asked permission to the
questions arising upon the construction of the treaty and
act Of Congress thereof and also
the jurisdiction Of the Commissioner and the competency
of the evidence before him upon which the prisoner
found guilty nasmuch these questions had not been
argued before the Supreme Court the side of the
British government counsel appeared that argu
naent in its behalf The request readily granted aud
IL matter Of gratdciton TO me that have bad the
benefit Of the investigations and views OF the learned
counsel in aid of the further consideration Of the
which have been called to give to the very impor
taDt and some what difficult questions involved in the
FINAL determination OF it. For although upon the fur
ther consideration Of those questions am obliged
10 adhere to the opinions originally entertained,
and which have been stated at large elsewhere
am the more confirmed and satisfied with their
soundnes finding these opinions unchans after the
able adverse argument submitted at the hearing.
The opinions referred and which concurred in by
two o. my harmed brethren the Chief Justice aud Mr.
Justice Daniel led TO the conclusion-1 That the Judi
ciary possessed jurisdiction to entertain proceed
ipes updar the treaty for the apprehension