In re Kaine,
55 U.S. 103 (1852)

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U.S. Supreme Court

In re Kaine, 55 U.S. 14 How. 103 103 (1852)

In re Kaine

55 U.S. (14 How.) 103


Under the tenth article of the treaty of 1842 between the United States and Great Britain, a warrant was issued by a commissioner, at the instance of the British Consul for the apprehension of a person who, it was alleged, had committed an assault with intent to murder in Ireland.

The person being arrested, the commissioner ordered him to be committed, for the purpose of abiding the order of the President of the United States.

A habeas corpus was then issued by the circuit court of the United States, the district Judge presiding, when, after a hearing, the writ was dismissed, and the prisoner remanded to custody.

A petition was then presented to the circuit judge at his chambers, addressed to the Justices of the Supreme Court and praying for a writ of habeas corpus, which was referred by the circuit judge, after a hearing, to the Justices of the Supreme Court, in bank, at the commencement of the next term thereof.

At the meeting of the Court, a motion was made, with the papers and proceedings presented to the circuit judge annexed to the petition, for writs of habeas corpus and certiorari to bring up the defendant and the record from the circuit court for the purpose of having the decision of that court examined.

The motion was refused; the writs prayed for denied, and the petition dismissed.

On the 14th of June, 1852, Anthony Barclay, the British Consul at New York, addressed to Samuel R. Betts, Judge of the District Court of the United States for the Southern District of New York, and to any commissioners authorized to perform judicial duties in the matter, a requisition and complaint. It set forth that it had been represented to Mr. Barclay and was believed by him, that one Thomas Kane, or Kaine, or Cain, then of Cooleen, in Ireland, did, on or about the 5th of April, 1851, fire a pistol at one James Balfe, with intent to murder him; that a warrant to apprehend him was issued by a justice of the peace, but that said Kaine had absconded and fled to the United States. The requisition further stated that the crime of which he had been guilty would have justified his apprehension and commitment if it had been committed within the United States. It then asked that a warrant for his apprehension might be issued to the end that the evidence of criminality may be heard and considered, and if, on such hearing, the evidence should be deemed sufficient, that it should be certified to the proper executive authority in order that a warrant might issue for the surrender of such fugitive under the treaty between the United States and Great Britain.

Page 55 U. S. 104

The truth of this complaint was sworn to by Mr. Barclay.

Kaine was arrested and brought before Joseph Bridgham, a commissioner of the United States, at New York.

The case was heard before the commissioner, who decided, on the 23d of June, that the evidence was sufficient in law to justify the commitment of Kaine upon the charge of assault with intent to commit murder, and ordered that the prisoner should be committed, to abide the order of the President of the United States.

A writ of habeas corpus was sued out, and allowed by Judge Betts. The writ was returnable to the circuit court of the United States, and on the 3d of July, Judge Betts, the district judge, then sitting alone in the circuit court, decided that the writ should be dismissed and the prisoner be remanded to the custody of the marshal.

On the 17th of July, the Acting Secretary of State issued a warrant, directing the marshal to deliver up Kaine to the British Consul.

On the 22d of July, Kaine presented a petition to MR. JUSTICE NELSON at his chambers praying for a writ of habeas corpus. The petition, although handed to MR. JUSTICE NELSON, was addressed to the Justices of the Supreme Court of the United States, which was not then in session.

On the 3d of August, MR. JUSTICE NELSON allowed the writ, and made it returnable on the 11th.

The marshal, in his return, stated the above facts, when, on the same day, MR. JUSTICE NELSON ordered as follows:

"The marshal having made the within return, Ordered that, in consequence of the difficult and important questions involved in the case, it be heard before all the Justices of the Supreme Court in bank at the commencement of the next term thereof, and that in the meantime the prisoner remain in the custody of the said marshal."

A motion was made in this Court for a certiorari, to bring up the proceedings of the circuit court, when holden by Judge Betts, which were printed, and ready to be used if the writ should be ordered.

In this condition of the case, the Court passed the following order.

"On consideration of the petition filed in this cause yesterday and of the arguments of counsel thereupon had, as well in support of the application as against it, it is now here ordered by the Court that counsel have leave to argue the following questions, to-wit: "

"1. Has this Court jurisdiction upon the case, as certified by Judge Nelson? "

Page 55 U. S. 105

"2. Can a certiorari issue to bring up the proceedings in the circuit court?"

"3. Assuming the Court to have jurisdiction and the proceedings in the circuit court to be legally before this Court, is the party entitled to be discharged?"

"And it is further ordered by the Court that the same be and hereby are set down for argument on the first Monday of January next. "

Page 55 U. S. 107

The following opinion was delivered by MR. JUSTICE CATRON, in which MR. JUSTICE McLEAN, MR. JUSTICE WAYNE, and MR. JUSTICE GRIER, coincided. MR. JUSTICE CURTIS delivered a separate opinion, and MR. CHIEF JUSTICE TANEY, MR. JUSTICE DANIEL, and MR. JUSTICE NELSON, dissented.

Page 55 U. S. 108

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