The treaty with France made in 1843 provides for the mutual
surrender of fugitives from justice, in certain cases.
Where a district judge, at his chambers, decided that there was
sufficient cause for the surrender of a person claimed by the
French government and committed him to custody to await the order
of the President of the United States, this Court has no
jurisdiction to issue a habeas corpus for the purpose of reviewing
Mr. Coxe moved for a habeas corpus, according to the following
petition, which he read, and also the decision of the judge
"To the Honorable, the Justices of the Supreme Court of the
"The petition of Nicholas Lucien Metzger respectfully
"That he is restrained from his liberty, and is now a prisoner
in jail, and under the custody of the Marshal of the Southern
District for the State of New York, and that he has been committed
to such jail and custody, and is now confined and detained therein,
under and by virtue of a warrant and order of the Hon. Samuel R.
Betts, district judge for the Southern District of New York, as an
alleged fugitive from justice, pursuant to the provisions of the
convention signed between the United States and the French
government, on 9 November, 1843."
"That annexed hereto is a copy of the order, under and by virtue
of which your petitioner has been apprehended and committed, and is
now detained in custody."
"Wherefore your petitioner prays that a writ of habeas corpus
may issue from this Honorable Court, to be directed to the Marshal
of the Southern District of the State of New York, or to such other
persons as may hold or detain your petitioner under and by virtue
of said order, commanding him or them to have the body of your
petitioner before this Honorable Court, at such time as in said
writ may be specified, for the purpose of inquiring into the cause
of commitment of your petitioner, and to do and abide such order as
this Honorable Court may make in the premises."
"And your petitioner will ever pray &c."
Page 46 U. S. 177
"Sworn to before me this 20 January, 1847."
"GEORGE W. MORTON"
"United States commissioner for the Southern
"District of New York
"In the Matter of Nicholas Lucien Metzger:"
"This case having been heard before me on requisition through
the diplomatic agents of the French government that the said
Metzger be apprehended and committed for the purpose of being
delivered up as a fugitive from justice pursuant to the provisions
of the convention signed between the United States and the French
government on 9 November, 1843, "
"And exceptions having been taken by the counsel of the said
Metzger in his behalf to the competency of a judge of the United
States to take cognizance of the subject matter, and to the
sufficiency of the evidence to justify any judicial action under
the treaty, "
"And these exceptional objections being fully argued before me
by Messrs. Blunt and Hoffman, of counsel for Metzger, and by
Messrs. Tillon and Cutting in support of the requisition, and by
Mr. Butler, United States Attorney, on the part of the United
States (in respect to the jurisdiction of the judge, and the period
the treaty went into operation), "
"I find and adjudge that a judge of the United States has
competent authority, under the laws of the United States now in
force, to take cognizance of this case, and to order the
apprehension and commitment of the accused, pursuant to the
provisions of the said treaty."
"I further adjudge that the said treaty took effect and went
into operation on and from the day of the signature thereof."
"I further adjudge that the laws of France are to determine the
constituents of the crime of forgery, or 'du faux,'
which Metzger is accused, and that the facts in evidence adequately
prove the commission of that crime by him in France, since the date
of the treaty."
"I further find and adjudge, that Metzger is, within the meaning
and description of the treaty, a person accused, 'individual
accused,' of the crime of forgery, or 'du faux,'
the treaty, and therefore subject to apprehension and commitment
under our laws, pursuant to the provisions of the treaty."
"And I find and adjudge, that the evidence produced against the
said Metzger is sufficient in law to justify his apprehension and
commitment on the charge of forgery, had the crime been committed
within the United States."
"Wherefore I order that the said Nicholas Lucien Metzger be
apprehended and committed, pursuant to the provisions of the said
treaty, to abide the order of the President of the United States in
the premises. "
Page 46 U. S. 178
"Given under my hand and seal at the City of New York, this
nineteenth day of January, one thousand eight hundred and
"[Signed] SAMUEL R. BETTS"
"Judge of the United States for the Southern
"District of New York
Page 46 U. S. 188
MR. JUSTICE McLEAN delivered the opinion of the Court.
This is a petition for a habeas corpus, in which the petitioner
represents that he is a prisoner in jail, under the custody of the
Marshal for the Southern District of the State of New York, by
virtue of a warrant issued by the judge of the United States for
said district, as an alleged fugitive from justice, pursuant to the
provisions of the convention signed between the United States and
the French government on 9 November, 1843.
On a full hearing at chambers, the district judge held
"that the evidence produced against the said Metzger was
sufficient in law to justify his apprehension and commitment on the
charge of forgery, had the crime been committed within the United
and the prisoner was "committed, pursuant to the provisions of
the said treaty, to abide the order of the President of the United
In the first article of the convention for the surrender of
criminals between the United States and his Majesty, the King of
the French, on 9 November, 1843, it was
"agreed, that the high contracting parties shall, on
requisitions made in their name, through the medium of their
respective diplomatic agents deliver up to justice persons who,
being accused of the crimes enumerated in the next following
article, committed within the jurisdiction of the requiring party,
shall seek an asylum, or shall be found within the territories of
the other, provided that this shall be done only when the fact of
the commission of the crime shall be so established, as that the
laws of the country in which the fugitive or the persons so accused
shall be found would justify his or her apprehension and commitment
for trial, if the crime had been there committed."
The second article specifies, among other crimes, that of
forgery, with which the prisoner was charged.
The third article declares that
"On the part of the government of the United States, the
surrender shall be made only by the authority of the executive
It is contended that the treaty, without the aid of legislation,
does not authorize an arrest of a fugitive from France, however
clearly the crime may be proved against him; that the treaty
provides for a surrender by the executive only, and not through the
instrumentality of the judicial power.
The mode adopted by the executive in the present case seems to
be the proper one. Under the provisions of the Constitution, the
treaty is the supreme law of the land, and, in regard to rights and
responsibilities growing out of it, it may become a subject of
judicial cognizance. The surrender of fugitives from justice is a
matter of conventional arrangement between states, as no such
obligation is imposed by the laws of nations.
Whether the crime charged is sufficiently proved and comes
within the treaty are matters for judicial decision, and the
executive, when the late demand of the surrender of Metzger was
Page 46 U. S. 189
very properly as we suppose, referred it to the judgment of a
judicial officer. The arrest which followed and the committal of
the accused subject to the order of the executive seems to be the
most appropriate, if not the only, mode of giving effect to the
The jurisdiction of this Court in this matter is the main
question for consideration. As this has been argued fully, and as
it is supposed that there is a conflict in the decisions of this
Court on the subject, a reference will be made to the cases which
have been adjudged.
In United States v.
3 Dall. 17, a writ of habeas corpus was
issued, on which the defendant, who was charged with high treason,
was brought into court. He had been committed on the warrant of the
district judge. A motion was made for his discharge "absolutely, or
at least upon reasonable bail." The court held the prisoner to
bail. From the opinion pronounced, it appears the deliberation of
the court was chiefly on the subject of appointing a special
circuit court to try certain offenses, which, for the reasons
assigned, they refused to do.
Here it is said was an original exercise of jurisdiction by the
court, as it does not appear that the district judge was holding a
court at the time of the commitment. No objection seems to have
been made to the jurisdiction, and the court did not consider it.
The defendant was discharged on bail, and this may be presumed to
have been one of the main objects of the writ.
The thirty-third section of the Judiciary Act of 1789 provides,
"upon all arrests in criminal cases, bail shall be admitted,
except where the punishment may be death, in which cases it shall
not be admitted but by the supreme or a circuit court, or by a
justice of the Supreme Court,"
&c. Hamilton's case was within this section, the charge
against him being treason, which was punishable with death. The
case is not fully reported. The motion to discharge the prisoner is
not noticed in the opinion of the court, and this omission may be
accounted for on the ground that they had no power to discharge.
But, whether this presumption be well founded or not, it is clear,
if this were not the exercise of an original jurisdiction, that the
court had a right to admit to bail, under the section, and for that
purpose to cause the defendant to be brought before them by a
3 Cranch 448, was a habeas corpus, on
which the prisoner, who had been committed by the circuit court of
this district, was discharged, there being no sufficient cause for
Ex Parte Bollman &
4 Cranch 75, gave rise to much
discussion on the power of the court to issue a writ of habeas
corpus, and, in their opinion, they consider the subject with great
Page 46 U. S. 190
The Chief Justice disclaimed all jurisdiction in the case, "not
given by the Constitution or laws of the United States."
He refers to the fourteenth section of the Judiciary Act above
cited, in these words:
"That all the before-mentioned courts of the United States shall
have power to issue writs of scire facias,
and all other writs, not specially provided for by statute, which
may be necessary for the exercise of their respective
jurisdictions, and agreeable to the principles and usages of law.
And that either of the Justices of the Supreme Court, as well as
judges of the district courts, shall have power to grant writs of
habeas corpus, for the purpose of an inquiry into the cause of
commitment. Provided that writs of habeas corpus shall in no case
extend to prisoners in jail, unless where they are in custody under
or by color of the authority of the United States, or are committed
for trial before some court of the same, or are necessary to be
brought into court to testify."
Bollman & Swartwout had "been committed by the Circuit Court
of the District of Columbia, on a charge of treason against the
The Court held, that the proviso limiting the cases in which the
writ should issue extends to the whole section, and that they could
issue the writ, as it was clearly the exercise of an appellate
jurisdiction; that "the revision of a decision of an inferior
court, by which a citizen has been committed to jail," is an
In Ex Parte
"who was committed by the circuit court of
the District of Columbia, for an alleged contempt," 7 Wheat. 38,
the court said, that the case of Bollman & Swartwout
expressly decided, upon full argument, that this Court possessed
such an authority, and the question has ever since been considered
And they held, "that a writ of habeas corpus was not a proper
remedy, where a party was committed for a contempt by a court of
The preceding cases were all referred to in Ex Parte
3 Pet. 193, and the Court said
"Without looking into the indictments under which the
prosecution against the petitioner was conducted, we are
unanimously of opinion that the judgment of a court of general
criminal jurisdiction justifies his imprisonment, and that the writ
of habeas corpus ought not to be awarded."
Again, in 32 U. S. 7
568, the case of Ex Parte Watkins
was brought before the
Court on a writ of habeas corpus, on the ground that the
"would not be detained in jail longer than the return day of the
process, and he had been brought into court and committed, by the
order of the court, to the custody of the marshal."
This committal was required by the law of Maryland, in force in
this district, and it not having been ordered, the court discharged
In all the above cases, except in that of Hamilton, this
Page 46 U. S. 191
sustained the power to issue the writ of habeas corpus, in the
exercise of an appellate jurisdiction under the fourteenth section
of the act of 1789, and the case of Hamilton was probably sustained
under the thirty-third section of the same act, for the purpose of
taking bail. The same doctrine was maintained in Ex
3 How. 104. In that case, the proviso
in the fourteenth section was considered as restricting the
jurisdiction to cases where a prisoner is
"in custody under or by color of the authority of the United
States, or has been committed for trial before some court of the
same, or is necessary to be brought into court to testify."
The case under consideration was heard and decided by the
district judge at his chambers, and not in court, and the question
arises whether the court can exercise jurisdiction to examine into
the cause of commitment under such a state of facts.
There is no pretense that this can be done in the nature of an
appellate power. This Court can exercise no power in an appellate
form over decisions made at his chambers by a Justice of this Court
or a judge of the district court. The argument of the Court in the
case of Bollman & Swartwout
that the power given to an
individual judge may well be exercised by the Court must not be
considered as asserting an original jurisdiction to issue the writ.
On the contrary, the power exercised in that case was an appellate
one, and the jurisdiction was maintained on that ground.
It may be admitted that there is some refinement in denominating
that an appellate power which is exercised through the
instrumentality of a writ of habeas corpus. In this form, nothing
more can be examined into than the legality of the commitment.
However erroneous the judgment of the court may be, either in a
civil or criminal case, if it had jurisdiction, and the defendant
has been duly committed, under an execution or sentence, he cannot
be discharged by this writ. In criminal cases, this Court have no
revisory power over the decisions of the circuit court; and yet, as
appears from the cases cited, "the cause of commitment" in that
court may be examined in this, on a writ of habeas corpus. And this
is done by the exercise of an appellate power -- a power to inquire
merely into the legality of the imprisonment, but not to correct
the errors of the judgment of the circuit court. This does not
conflict with the principles laid down in Marbury v.
1 Cranch 137. In that case, the court
refused to exercise an original jurisdiction by issuing a mandamus
to the Secretary of State, and they held, that "Congress have not
power to give original jurisdiction to the Supreme Court in other
cases than those described in the Constitution."
There is no form in which an appellate power can be exercised by
this Court over the proceedings of a district judge at his
chambers. He exercises a special authority, and the law has made no
provision for the revision of his judgment. It cannot be
Page 46 U. S. 192
before the district or circuit court; consequently it cannot, in
the nature of an appeal, be brought before this Court. The exercise
of an original jurisdiction only could reach such a proceeding, and
this has not been given by Congress, if they have the power to
Upon the whole, the motion for the writ of habeas corpus in this
Mr. Coxe, of counsel for the petitioner, having filed and read
in open court the petition of the aforesaid Nicholas Lucien
Metzger, and moved the court for a writ of habeas corpus, as prayed
for in the aforesaid petition, to be directed to the Marshal of the
United States for the Southern District of New York, commanding him
forthwith to produce before this Honorable Court the body of the
petitioner, with the cause of his detention -- on consideration
whereof, and of the arguments of counsel thereupon had, as well
against as in support of the said motion, and after mature
deliberation thereupon had, it is now here ordered and adjudged by
this Court, that the prayer of the petition be denied, and that the
said motion be and the same is hereby overruled.