A minority, consisting of three judges, regarded the prisoner as in custody under Judge Betts' decision as circuit judge,' and were in favor of issuing the writs asked for on the merits, and also on the ground (as would seem from the Opinion delivered by Mr. Justice Nelson, Chief Justice Taney and Mr. Justice Daniel concurring) that a previous demand on the Executive and some action on his part must in these cases precede the action of the judges and commissioners mentioned in the Act of Congress. From this it would appear that these judges regarded the action of the judge or commissioner as ancillary to the executive power, and not co-ordinate judicial power.'

From the two opinions it appears that, with the exception of Judge Curtis, all the members of the court regarded the action of the commissioners and judicial magistrates mentioned in the Act as being so far judicial in quality as to be beyond the sphere of the executive department; while, in admitting that the power therein exercised may be held by a commissioner, they must be taken to affirm with Judge Curtis that it is not the judicial power of the United States.*

on application to that department." (In Kaine's case, the Secretary of State had decided" that the Government would not go behind the decision of the commissioner adjudging the prisoner guilty." See Nelson, J., 14 How. 189.) On page 110, Cairon, J., had said:-"That an executive order of surrender to a foreign government is purely a national act, is not open to controversy; nor can it be doubted that the executive act must be performed through the Secretary of State by order of our chief magistrate representing the nation. But it does not follow that Congress is excluded from vesting authority in judicial magistrates to arrest and commit preparatory to a surrender."

These judges held that the commissioner, to act in these cases, should, under the statute, have been specially appointed; that the general powers of the commissioners could not extend to them.

Judge Nelson, however, does not affirm that the only power exercised is that vested in the executive department. After holding that the course taken in Robbins' case had been sustained by later authorities, 14 How. 139, 140, he says:"And it is upon this construction given to the treaty of 1795 upon which all our subsequent treaties of extradition seem to have been drafted. The power to surrender is not confided exclusively to the Executive under the treaty of 1795. On the requisition being made, if the President is satisfied, upon the evidence accompanying it, that a proper case is presented for an inquiry into the crime charged, the authorities claiming the fugitive are referred to the judiciary, and then it is the duty of courts or judges to act and to take the proper steps for the arrest and inquiry. The Executive alone possesses no authority under the Constitution and laws to deliver up to a foreign power any person found within the States of this Union without the intervention of the judiciary. The surrender is founded on an alleged crime, and the judiciary is the appropriate tribunal to inquire into the charge."

Mr. Cushing, U. S. Atty. Gen., in his opinion in Calder's case, Aug. 81, 1853, relying on the opinions in Kaine's case, says: "The arrest, examination, and de

§856. It has been argued that pecuniary claims against the United States have often been referred to special commissioners, and to official persons not holding the judicial power of the United States. That when referred to judges of the national courts, it has been held that their action therein was the exercise of a special power and not the judicial power,' and that the decision of a demand under treaty for the person of a fugitive criminal is analogous. Such was the argument of Mr. Justice Curtis in Kaine's case, 14 How. 120, and of Marshall in Robbins' case.

But it must be noticed that the rights which are thus claimed under treaty are not legal rights; except as they may be made such under some law of Congress intended to carry the treaty into effect; because the correlative obligation is not a legal obligation, since it is due by a sovereign who makes the treaty and, by it, the rights. By the

cision of fact, are purely judicial acts. They are not and cannot be performed by the President,"-6 Op. U. S. Atty. Gen. 95; and that the judge "acts by special authority under the law of Congress. * *He does not exercise any part of what is technically considered the judicial power of the United States." Ib. 96. From these authorities it appears that the difficulty is avoided by distinguishing some of the judicial power of the United States as special authority, and that the Constitution must be understood as meaning the judicial power of the United States, so far as it is not special authority, shall be vested, &c., or that the functions of the Government are the legislative, the executive, the judicial, and the special.

1

By the treaty of 1819, with Spain, it was agreed that the United States "shall cause satisfaction to be made for the injuries, if any, which, by process of law, shall be established to have been suffered by the Spanish officers, and individuals, Spanish inhabitants, by the later operations of the American army in Florida." By certain Acts, Congress directed the United States district judge to adjudge claims for losses, and to report his decisions, if in favor of the claimants, together with the evidence, to the Secretary of the Treasury. In United States v. Ferreira, 13 How. 47, held that no appeal could be made, from such an award, to the Supreme Court, Taney, Ch. J.:-"The decision is not the judgment of a court of justice. It is the award of a commissioner. The Act of 1834 calls it an award. And an appeal to this court from such a decision, by such an authority, [as?] from the judgment of a court of record, would be an anomaly in the history of jurisprudence. An appeal might as well have been taken from the awards of the board of commissioners under the Mexican treaty, which were recently sitting in this city." On p. 48:-"The powers conferred by these Acts of Congress, upon the judge as well as the secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised under both of them. But it is nothing more than the power ordinarily given by law to a commissioner appointed to adjust claims to lands or money under a treaty, or special powers to inquire into or decide any other particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a secretary as well as on a commissioner. But it is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States." See further, pp. 49, 50, 52, noting Hayburn's case, 2 Dall. 409, and United States v. Todd, ib. n.

treaty, the United States concede something voluntarily which it was in their discretion to withhold; and, by the statute, they appoint the manner in which they will carry out their concession and on what evidence they will admit the existence of the facts. In these cases the national Government is like a private person who, from a sense of moral obligation or of self-interest, voluntarily consents to grant something to another, and who determines on the extent of his proposed concession in any way he chooses. He may determine this by an act of mental judgment, or by chance, as by a cast of dice. or he may appoint another to decide for him by either of such methods, or by any other. In these cases the Government acts, throughout, autonomously, and not under law, and the commissioner is its agent.'

It seems to be forgotten that in the instance of extradition there is a third party, the alleged criminal, whose right to life and liberty within the jurisdiction of the United States is to be determined under law, whether it be treaty, or statute, or common law.

857. If the national and State courts may adjudge on habeas corpus whether the prisoner is within the terms of the treaty, it can only be in the exercise of their ordinary judicial power. Yet the question thus presented to the court is the same which had been passed upon, before, by a commissioner or a judge at chambers.

§ 858. For the present inquiry, it is very important to notice that it seems to be held that the act of judgment exercised in these cases is not distinguishable in quality from that used

The Government may be taken to occupy a similar position in respect to its delinquent collecting agents on whose property the supervisors of the treasury department were authorized to levy, by an Act of 1820. Judge Marshall, in Ran dolph's case, 2 Brock. C. C. R. 448, 480, treated the power exercised as ministerial, though intimating that, if its quality were to be determined, it might be the judi cial power of the United States.

2 That is, if they may not merely inquire into the existence of the commitment, but may go behind the decision of a commissioner or even the mandate of the President, as held in Metzger's case, 1 Barbour, 248; Heilbonn's case, 1 Parker's Cr. 436. The opinions of the Supreme Court in Metzger's and Kaine's cases would imply that the United States Courts have power to make this inquiry. Whether the State courts can in like manner inquire into the propriety of a commitment by a Governor under the Constitution and Act of Congress, is unsettled. See R. C. Hurd on Habeas Corpus, 615. In Ex parte Smith, 3 McLean, 180, the power of a United States court to make this inquiry is affirmed.

in ordinary commitments under the law of the forum of jurisdiction with reference to trial before some court in the same forum; and that such commitments may be made by officers not holding the judicial power of the United States referred to in the Constitution (Art. 3, sec. 1), seems indisputable.

It is, perhaps, on the truth of this parallel that the question depends, whether the act of delivering up a person claimed as a criminal under treaty or under customary international law does or does not involve an exercise of what is properly called judicial power.

In the ordinary arrest of a criminal there is no finality with reference to the forum in which it is made and the law upon which his continued enjoyment of personal liberty ultimately depends. In the case of extradition for the purpose of trial in a foreign jurisdiction, the liberty of the accused is finally determined upon, so far as regards the forum and the protection which its laws had extended to him, as fully as by a judicial sentence of banishment or outlawry. The surrender or extradition is a single and completed judicial act in reference to the jurisdiction in which it is made and to the liberty of the supposed criminal under its laws. It has all the elements of a sentence or judgment under punitive law. It is not ancillary, by any juridical connection, to the prospective judgment in the foreign jurisdiction, but is simply its historical antecedent.2

859. The distinction above stated, between the act of judgment in ordinary commitments and that in cases of international extradition, seems never to have been fairly considered. Its force in reference to the questions here presented may perhaps be avoided by an argument like the following:

It is a fundamental principle of public and private law in all civilized countries (universal jurisprudence) that each na

1 Catron, J., in re Kaine, 14 How. 110:-" According to the terms of the statute, no doubt is entertained by me that the judicial magistrates of the United States, designated by the Act, are required to issue warrants and cause arrests to be made at the instance of the foreign Government, on proof of criminality, as in ordinary cases when crimes are committed within our own jurisdiction and punishable by the laws of the United States." Also, Woodbury, J., in British Prisoners, 1 Woodbury and Minot, 73; Kentucky v. Dennison, ante, p. 431.

2

See, in connection, ante, §§ 463-465.

tion recognizes every other as a jural society, one which regards justice as the end of government and of law, and that each will regard itself as one in a great community of states existing for the maintenance of justice. Hence, each recognizes as just the rights and obligations which exist in relations created under the private law of other nations; and in this is the foundation of that basal rule of private international law which is generally called comity.

1

On the same great principle, it may be said, each nation will recognize the penal procedure of other nations to be calculated to promote the ends of justice; to this degree-that, if it agrees to deliver persons charged with crimes against a foreign law, it will trust in the justice of penal administration in the foreign country, and will not interpose in behalf of the accused those guarantees against the abuse of public power which it maintains against that abuse under its own authority; that, to the extent of the treaty, the nation making extradition will regard the two countries as parts of one great community under one punitory law, so that, in the jurisprudence of the country by which it is allowed, the extradition is like the commitment within one district, as a county, for trial in another district, of a person charged with crime under the law of a single forum of jurisdiction in which the two districts are included.'

860. But from this collateral inquiry it is necessary to return to the actual question-of the nature of the power exercised by the Governors of States under the constitutional provision.

If the argument in the last section be sufficient to answer the objection in the case of extradition to a foreign government, it will apply a fortiori between the several States.

If the principle on which it rests is not to be recognized as determining the application of a treaty between distinct nations, yet, such is the similarity of penal administration in the

1 Ante, §§ 33, 77, 78.

Some such principle must be assumed to maintain the legality of extradition under a customary international law (as Kent, in 1 Comm. 37), and, in governments founded on written constitutions, to authorize an international compact of extradition, when the constitution has not defined the treaty-making power.