In re George Macdonnell, on Habeas Corpus. arrested and held the prisoner by virtue of the warrant annexed to his return, issued by Joseph Gutman, Jr., United States Circuit Court Commissioner, and the commitment to the custody of the said marshal, on the adjournment of the proceedings before the Commissioner to the 8th of April, 1873. The substance of the warrant is stated in the opinion of the Circuit Judge. To the writ of certiorari the Commissioner made return, the substance of which, together with the mandate of the President of the United States, upon the requisition of the British Minister, the complaint made to the Commissioner by the British Consul General, the warrant of arrest, the proceedings on such arrest, the adjournments, the examination of witnesses, and the testimony taken, are also stated in the opinion, so far as material. To the return of the marshal the prisoner interposed an answer of a somewhat mixed nature, combining demurrer, plea, and traverse, and subsequently added a further supplemental allegation. The averments of the answer were, (1.) "That the warrant and commitment are, and each of them is, insufficient in law to authorize and warrant the restraint and custody of the relator, by him, the said respondent," (the marshal); (2.) "That the said warrant and commitment are, and each of them is, not sufficient in law to warrant such detention and custody of the relator, for the following reasons, to wit: First. The magistrate had no jurisdiction to issue the warrant, because no sufficient complaint had been presented to him at the time the warrant was issued; Second. The complaint upon which said warrant was issued does not make out a case against the said relator, giving jurisdiction to the Commissioner; Third. The said complaint and warrant contain no description of any specific offence alleged to have been committed by the relator, and embraced within the treaty of extradition between the Government of the United States and the Government of Great Britain; Fourth. The said complaint, upon which said warrant was issued, does not show that any requisition, previous to the making thereof, had been made, under the authority of the British Government, and that the authority of the VOL. XI.-6 In re George Macdonnell, on Habeas Corpus. Government of the United States had thereupon been obtained for the apprehension and committal of the relator; Fifth. The commitment referred to in the return aforesaid is based upon an insufficient complaint and warrant, issued without jurisdiction by the said Commissioner had for that purpose; Sixth. The said complaint, the said warrant, and the said commitment, are informal, illegal and otherwise, as herein before set forth, not sufficient in law to justify the detention and custody of the said relator by the said respondent." The supplemental allegation was, that "the mandate of the President of the United States, upon the requisition of the British Government, does not describe the offence alleged in the complaint herein." The return of the Commissioner to the writ of certiorari, with the documents and proceedings thereto annexed, were produced and made a part of the proceedings under the habeas corpus. Charles W. Brooke, for the prisoner. Charles M. Da Costa and Francis F. Marbury, for the British Government. WOODRUFF, J. In announcing my conclusion upon the application for the discharge of the prisoner, I shall not occupy time in a preliminary history of the proceedings before myself, or before the Commissioner, as might be proper if I were preparing a report of the matter, or an entire record, in order to give a complete history of the case. The argument, involving a review of every step in the proceedings, and each document and process, is so recent, that counsel are quite familiar with each, and, to some extent, the statement of the reasons for my conclusions will furnish occasion to recite the substance of whatever is important to make those reasons intelligible. It is not, in the present case, necessary, that I should express an opinion upon the proposition which is at the foundation of the argument on one branch of the claim made in be In re George Macdonnell, on Habeas Corpus. half of the prisoner, namely, that a Commissioner has no jurisdiction to entertain proceedings for the apprehension of an alleged fugitive, until authority for that purpose has been granted by the Executive Department of the Government of the United States. (See the Treaty with Great Britain, of August 9th, 1842, 8 U. S. Stat. at Large, 576, Art. 10; Act of Congress of August 12th, 1848, 9 U. S. Stat. at Large, 302.) Mr. Justice Nelson, in the case of Ex parte Kaine, (3 Blatchf C. C. R., 1,) affirmed the proposition, and made the absence of such authority at the time of the institution of the proceeding one of the grounds upon which he discharged the prisoner, notwithstanding the President, on the report made to him of the facts found by the Commissioner, and the evidence thereof, had so far ratified what had been done as to issue his warrant for the surrender of Kaine to the authorities of the British Government. In this decision he conformed to the dissenting or minority opinion expressed by him, with the concurrence of Chief-Justice Taney and Mr. Justice Daniel, in In re Kaine, in the Supreme Court, (14 How., 103.) That opinion stood opposed to the opinion delivered by Mr. Justice Catron, with the concurrence of Justices McLean, Wayne and Grier, to the effect, that the Commissioner acts, in receiving a complaint, issuing his warrant for the arrest, and taking and certifying the proofs, by a jurisdiction expressly conferred upon him by law, by the treaty, and by the Act of Congress; that his power and authority, in these particulars, exist independently of any mandate or command of the President, to be obtained in advance of such proceeding; and that, whatever may be the requirement of the Acts of the British Parliament on that subject, the Congress of the United States did not think it necessary to the dignity of the nation, the protection of the accused, or on any other ground, and, especially, in view of the inconvenience which it involved, and the great facility it afforded for the escape of the fugitive, and for defeating the purposes of the treaty, to require that the aid of the President should be invoked until the preliminary inquiry had been made before a magistrate. In re George Macdonnell, on Habeas Corpus. They go still further, and insist, that to hold the contrary is to permit an interference by the Executive with the Judiciary, against the intent, principles and legal effect of our system of government, which make the action of the Judiciary, in the discharge of all functions properly judicial, independent of Executive interference; while, on the other hand, the act of surrender, after, by a judicial inquiry, the facts are ascertained, is confessedly an exercise of political power, to which the President alone is competent. The Supreme Court of the United States, at that time, consisted of eight judges. The opinion of four of the judges was not sufficient to result in authoritative adjudication. Mr. Justice Nelson's opinion was sustained, on all points, by Chief-Justice Taney and Mr. Justice Daniel; and Mr. Justice Curtis declined expressing an opinion upon the merits, on the ground that the Supreme Court had no jurisdiction of the matter, as it was then before them. The proposition, therefore, stood, at that time, as the opinion of three judges of the Supreme Court, on the one hand, and four judges on the other, not authoritatively adjudicated. Mr. Justice Nelson, therefore, when the matter of Kaine was continued, before him, under the writ which he had originally allowed, (3 Blatchf. C. C. R., 1,) felt himself at liberty to be governed by the views he had expressed in the Supreme Court. The cases of Veremaitre, (9 N. Y. Leg. Obs., 129,) Kaine, (10 Id., 257), and cases referred to therein, and Heilbronn, (12 Id., 65,) and others, reported and unreported, show, that the District Judges in this Circuit had acted upon, and concurred in, the views of the four judges of the Supreme Court, above stated; and the practice before Commissioners had conformed thereto, down to the decision made by Judge Nelson. The two cases, of Henrich, (5 Blatchf. C. C. R., 414), decided by Judge Shipman, and of Farez, (7 Id., 34, 345,) decided by Judge Blatchford, are placed distinctly on the authority of Judge Nelson's decision in the case of Kaine, so that it may properly be said, that this claim on behalf of the prisoner rests on that opinion, supported by the concur In re George Macdonnell, on Habeas Corpus. rence of Chief-Justice Taney and Justice Daniel, and disaffirmed by Justices Catron, McLean, Wayne and Grier, and the opinions and practice of the District Judges. I advert to these particulars for the purpose of bringing together, in brief, the history of the subject, and of stating the extent of the authority in this Circuit, upon which the proposition urged on behalf of the prisoner rests. What has been the ruling or practice, on this subject, in other Circuits of the United States, counsel have not advised me by reference to any cases there decided. The counsel for the British Government insist, that the terms of the treaty, (8 U. S. Stat. at Large, 576, Art. 10,) and, especially, the Act of Congress of August 12th, 1848, (9 Id., 302,) passed to carry the treaty into effect, operate to confer the jurisdiction, and that, at the instance of the proper officer of the British Government, the designated magistrate may, and must, upon complaint made, issue his warrant to arrest the alleged fugitive, according to the terms of the statute, which, confessedly, does not expressly suggest that any prior action of the Executive is to be invoked; and they further insist, that, in the conflict of opinion above referred to, they have a right to call on me to act upon my own opinion of the true construction of the treaty and of the Act of Congress, in the particular thus in contest. It is, of course, not doubted, that, before any surrender can take place, the proceedings before the Commissioner, with all the proofs taken, must be submitted to the Executive, and that the final question, whether the case made is such as to require the surrender, may be considered by the President, without whose warrant no surrender of the fugitive can lawfully be made. I repeat, however, that it is not necessary for me to decide, in this case, to what extent I am bound by the decision made, or the opinion declared, in Kaine's case, nor that I should express an opinion upon the question itself, for the reason, not only that the mandate of the President was procured, and delivered to the Commissioner, before he acted in this matter at all, but also, because, in my judgment, the objections here |