author: Edmonds, J. —

text:
    Supreme Court. At Chambers; New York,
    March, 1847
    Before Edmonds, Justice.

    In the matter of Nicholas Lucien Metzger.
    A treaty containing provisions to be executed in futuro, is in the nature of a contract, and does not become a rule for tbe courts until legislative action shall be had on the subject.
    The treaty with France of 1843, providing for the surrender of fugitives from justice, can not be executed by the President of the United States without an act of Congress,

    No person can be surrendered under that treaty, who is merely charged with crirpe before a committing magistrate. He must under our law be indicted, or under the French law be mis en accusal ion by the chambre des mises en accusation.

    The prisoner was a notary public in one of the departments of France, which he left and came to this country. After he had left his residence, it was charged against him that he was a defaulter to his clients to a large amount, for moneys of theirs which he had embezzled, which embezzlement he had attempted to conceal by means of forgeries.
    Complaint to that effect was made against him, before a French committing magistrate, who issued a warrant for his arrest. He was not, however, apprehended on the warrant, but the papers, duly authenticated, were transmitted to this country, and the 'French minister to this country demanded his surrender under the treaty with France of 1843. That functionary was referred by the- secretary of state to the courts or magistrates of the country, and- accordingly made application to one of the police magistrates- o-f New York for a- warrant-, on which Metz-ger was arrested. An examination was had before that officer, who adjudicated that the prisoner was within the treaty, and issued hi's warrant committing him to prison until the President of the United States should demand him.

      Before that demand was made, the prisoner was taken before the circuit judge of the first circuit on habeas corpus. That officer decided that the police magistrate had no jurisdiction in the matter, and the prisoner was entitled to be discharged from that commitment.
    The French diplomatic agent then made application to the United States district judge, before whom similar proceedings were had, which resulted in a similar adjudication and a like warrant of commitment.

    Application was then made to the supreme court of the United States for a writ of habeas corpus to review the action of the district judge. The application was denied on the ground that that court had no power to review the action of a district judge at chambers.
    Thereupon the president of the United States issued his mandate to the marshal of New York, commanding him to surrender the prisoner to the diplomatic agents of the French government. Before, however, the surrender was actually made, a writ of habeas corpus issued, directed to the marshal, returnable before Edmonds, circuit judge.
    The matter was twice argued before him, and unde? the judiciary act of 1847 was transferred from him, as circuit judge, to him as judge of the supreme court under the new constitution.
    The following is a copy of the petition under which the writ of habeas corpus was granted:
    To John W. Edmonds, circuit judge of the first circuit of the supreme court of judicature of the people of the state of New York:
    • The petition of P. Barthelemy shows, that Nicholas Lucien Metzger is detained, and imprisoned and restrained in his liberty by the marshal of the district court of the United States for the southern district of the state of New York, at the jail of the city and county of New York, and that he is not committed or detained by virtue of any process issued by any court of the United States, or by any judge thereof, in any case where any such court or judge has or had exclusive jurisdiction under the laws of the United States, or in any case where any such court or judge, has or had acquired exclusive jurisdiction by the commencement of any suit in any court of the United States; nor is he committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree; that the cause or pretence of such detention and imprisonment, according to the best of the knowledge and belief of your petitioner, is a warrant of commitment, a copy whereof is hereto annexed, marked A, issued by his honor Samuel Betts, district judge of the district court of the United States, for the southern district of the state of New York, under pretext of the provisions of the treaty beween the United States and France, called the treaty of extradition, and dated the ninth day of November, A. D., 1843, against the said Metzger as a person charged with some one or more of the offences named in the provisions of said treaty, having escaped from the jurisdiction of the government of France, which imprisonment, your petitioner submits, is illegal for want of jurisdiction in said district judge over the person of said Metzger, or the subject matter aforesaid, wherefore your petitioner prays that a writ of habeas corpus issue, directed to said marshal, commanding him to bring the body of the said Nicholas Lucien Metzger, together with the time and cause of such imprisonment and detention, by whatsoever name the said Metzger shall be called or charged before, to do and receive what then and there be considered concerning said Metzger.
    Dated the second day of March, 1847.
    O. Hoffman and JV*. B. Blunt, for Metzger.

      Butler ( U. S. District Attorney), for the United States

      Cutting and Tillou, for the French government.

       In Accordance with this decision, an act was passed by Congress on 12th August, 1848, entitled “an act for giving effect to certain treaty stipulation* between this and foreign governments, for the apprehension and delivering up of certain offenders.”

         See 5 NY. Legal Observer, 83.

   Edmonds, J. —

This case involves the question whether tha president of the United States has authority, by virtue of mere treaty stipulation, and without an express enactment of the national legislature, to deliver up to a foreign power, and virtually to banish from the country, an inhabitant of one of the sovereign states of our confederacy.

The importance of the question has weighed heavily upon me during the whole time that the case has been before me.

The right is claimed, and has been exercised, by that high functionary in this instance; its exercise is demanded by the French government in the name of the treaty between the two nations, and a branch of the federal judiciary has sanctioned it.

Amid this imposing array against him, the prisoner, a resident among us and entitled to the benefit of our laws, has thrown himself for protection upon state sovereignty and demanded the interposition of its authority between him and the exercise of this extraordinary power. To that protection he has a right, in common with every inhabitant of our state, and it becomes my duty, as one of the state judiciary, to see that he sustains no injury in its exercise.

The apprehension that out of the discharge of this duty there might spring a conflict between national and state authority, has not been without its influence on my mind, causing me to pause long and weigh well any decision which I might make. Presenting to my mind, as this case does, the picture of the -whole authority of the nation, claiming and enforcing the surrender of the individual on the one hand, and personal liberty demanding protection against the exertion of extraordinary power on the other. I have not been free from anxiety as to the conclusion at which I might arrive and the consequences which might flow from it.

The question is, in a great measure, under our institutions, anomalous, arising out of that peculiar provision of our national constitution which declares that all treaties made under the authority of the United States shall be the supreme law of the land. But for this provision, and the construction claimed for it, the question might justly be regarded as already settled by authority. The British government, in February, 1843, made a treaty with France, identical in this regard with the convention between France and the United States. The British administration and the British parliament did not deem that the convention executed itself, or that it could be exected without legislative enactment. Hence the statute 6 and 7 Viet., c. 75, was. passed, which recited this clause of the convention and declared that it was expedient that provision should be made for carrying it into effect, and then enacted that any justice of the peace, or other person, having power to commit for trial persons accused of crime, &c., might examine witnesses and issue his warrant to apprehend the alleged fugitive and commit him to jail until delivered, pursuant to the requisition.

Under this statute the lord mayor of London, in September, 1844, issued his warrant for the arrest of an alleged fugitive from France, who, on being arrested, was brought before the Queen’s Bench on habeas corpus. That court held the warrant void, and on being applied to, for the purpose of remanding the prisoner, as a person accused under the treaty, they denied that they had any power but under the statute, and if its provisions were not clearly complied with, they had no power at all in the matter (In re Besset, 1 New Sessions Cases, 337).

Here, then, is a decision that, on the principles of common law, the treaty does not execute itself, and that even the highest judiciary in the nation could not act under it but in pursuance of a statute, and this exposition flows, not only from the British courts, but from the British executive,and the British legislature.

I know of nothing except the provisions of the constitution of the United States to which I'have alluded, which can exempt our courts from the binding force of the same doctrine, when they and the English courts alike draw the principles of their action and the rule and guide of their judgments from the same fountain of the common law.

Hence arises the necessity, in this case, of considering the meaning and force of this constitutional provision and of inquiring how far it does ex prop rio vigore, and without legis-.ative sanction, confer upon the officers of the national government the power of executing the various matters to which it relates.

In the first place it must be observed that the provision in question does not relate to treaties alone. It is the constitution itself and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, which shall be the supreme law of the land (Const. Art. 6).

If this provision has this self-acting power in regard to treaties, it has it equally in regard to the constitution at large, and from this consideration we may well appreciate the mag-li+nde and interest of the question involved

What is the meaning of the supremacy here provided fori That the power is itself omnipotent — self-acting and self-' dependent alone — and that the functionary clothed with it, if perchance he be the executive, is in that regard beyond the control alike of the judicial and legislative departments of the government? Such must be the result, if that provision does give, as is claimed in the argument before me, to the constitution and to treaties this self-sufficing authority.

But such, as I understand it, is not the true reading of this provision. The 22d No. of the Federalist defines its purpose in language more felicitous than any which I can use:

“ The treaties of the United States, to have any force at all. must be considered as part of the law of the land. Their true import, as far as respects individuals must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one supreme tribunal.” * * * “If there is in each state a court of final jurisdiction, there may be as many different final determinations, on the same point, as there are courts.” *- * * “ To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one tribunal paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.” * * *
“ The treaties of the United States under the present constitution are liable to the infractions of thirteen different legislatures and as many different courts of final jurisdiction.”

Hence arose the establishment of a supreme judicatory, not that it should be omnipontent and' self-sufficing in its power, but that, within its sphere, it should be paramount to all other judicatories. , Hence, too, the provision in question, that the constitution, the laws made in pursuance of it, and the treaties, should be the supreme law; not that they should be omnipotent and self-sufficing in their authority, but that they should be paramount over all other authority, so that if, when duly executed, they should come in conflict with any other they should be supreme and paramount.

This is no novel doctrine. But as I read the history of oui country, it has prevailed from the beginning, though not now for the first time questioned.

In the celebrated case of Jonathan Robbins, Chief Justice Marshall, then a member of the House of Representatives, asserted the same claim which is put forth for the government in this case. But he went farther and followed the doctrine out to its legitimate results, by insisting that the case was one for executive and not judicial decision, and that the judicial power can not extend to political compacts, such as the case of the delivery of a murderer under the 27th art. of Jay’s treaty with Great Britain (5 Wheaton, Jipp. 16).

In several instances, however, and at different periods, Congress has, by its action, given a different construction to this provision of the constitution.

A few instances will suffice:

The constitution (art. 3, § 2), declares that the judicial power shall extend, among other things, to all cases affecting ambassadors, other public ministers and consuls, and that in those cases the Supreme Court shall have original jurisdiction. It might well be supposed, that if any power in that instrument, which is to be the supreme law of the land, could be thus self-acting, it would be the power thus explicitly conferred. Yet in the judiciary act of 1789, § 13, ccngress provides for the exercise of this jurisdiction, both for and against ambassadors and other public ministers.

So, too, the constitution, art. 4, §2, provides that fugitives from justice shall on demand of the executive of the state from which they have fled, be delivered up to be removed to the state having jurisdiction of the crime.

This provision also of the supreme law of the land might be supposed to execute itself, yet Congress, in 1793, passed a law upon the subject, in order to carry it into effect.

The origin of this law is a striking illustration of the interpretation which prevailed at those early days.

It grew out of a demand made by the governor of Pennsylvania upon the governor of Virginia for the surrender of a fugitive from justice. With that demand the executive of Virginia refused to comply, for one reason, among others, because congress had not passed any statute to execute this provision of the supreme law of the land. The opinion of the attorney general of Virginia assuming that position, and the reply of the executive of that state, sanctioning it, were communicated to congress by President Washington in October, 1791, and out of that state of things flowed the statute which has for more than half a century governed the whole action of our citizens in that regard (American State Papers, vol. 20 p. 38).

If the claim now asserted is well founded now, it was so then, and if well founded, then indeed were this statute, and that also which came into existence at the same time in regard to fugitives from service, works of idle supererogation on the part of congress.

So, too, the same article of the constitution provides that persons held to service or labor in one 'state, escaping into another, shall be delivered up on claim of the party to whom such service or labor may be due.

This provision, too, of the supreme law, so far from executing itself by virtue of its supremacy, is helped out and carried into effect by the same law of congress, and sprung from the same necessity for legislative action which was then conceded.

So, too, the article of the constitution {art. 2, § 3), which declares it to be the duty of the president to take care that the laws be faithfully executed, is helped out and carried into effect by the act of 1795, which gives him authority to call out militia to suppress insurrection in any of the states.

These are all provisions of the constitution — the supreme law of the land, which congress has at an early day deemed it necessary to legislate upon, for the purpose of carrying them into effect.

And it may well be asked, why this necessity, if this supreme law was, by virtue of its supremacy, self sufficing, and did execute itself without legislative interposition 1

Such also has been the action of congress and the interpretation of the national government in relation to our treaties which are also the supreme law.

In 1788, a convention was entered into between France and the United States, providing for the arrest and surrender of deserting seamen, in which it is provided that for that purpose the consuls shall address themselves to the courts, judges and officers competent, and demand said deserters in writing, &c. And all aid and assistance to the said consuls shall be given for the search, arrest and seizure of said deserters, who shall be kept and detained in the prisons'of the country, &c. In 1824 a similar treaty was made with the republic of Columbia, and from that time down to 1845, various treaties with nations in Europe; Asia and America have been made, containing the same provision as to deserting seamen.

Specific as is this provision in these various treaties — pointing out, as it does, even the manner in which the power shall be exercised, Congress and our government have been so far from regarding it as capable of executing itself, that in 1829 a law was passed in language scarcely more particular than the various treaties, providing for carrying them into effect. This act is understood to owe its origin to the fact that so distinguished a jurist as Judge Story refused to execute one of the treaties, until congress had legislated upon the subject. A marked instance of a similar character is of more recent occurrence. We have a treaty with Spain providing against pri-vateering, and declaring that if any person of either nation shall take a commission as privateer or letters of marque, he shall be punished as a pirate. Yet congress and our government did not regard this treaty, though the supreme law of the land, and distinctly defining the offence as piracy, and thus bringing it clearly within the jurisdiction of the federal courts, as sufficient to execute itself, but on the 3d of March, 1847, passed a law in the following words :

An Act to provide for the punishment of piracy in certain cases.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that any subject or citizen of any foreign state, who shall be found and taken on the sea, making war upon the United States, or cruising against the vessels and property thereof, or of the citizens of the same, contrary to the provisions of any treaty existing between the United States and the state of which such person is a citizen or subject, when by such treaty such acts of such persons are declared to be piracy, may be arraigned, tried, convicted and punished before any circuit court of the United States, for the district into which such person may be brought, or shall be found, in the same manner as other persons charged with piracy may be arraigned, tried,.convicted and .punished in said court.

Approved March 3,1847.

So far as the Supreme Court of the United States have acted on this question, they seem to have adopted the same principle. In Foster v. Nelson (2 Peters, 314), they declare that a treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially so far as its operation is infraterrito-rial, but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature whenever it operates of itself without the aid of any legislative provisions.

But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not to the judicial department, and the legislature must execute the contract before it can become a rule of court. And speaking of the particular treaty then under consideration, they add, “This seems to be the language of contract, and if it is, the ratification and confirmation which are promised, must be the act of the legislature. Until such act shall be passed, the court is not at liberty to disregard the existing laws on the subject.”

In the U. S. v. Arredondo (6 Peters, 734), that Court affirm the same doctrine and again speak of a treaty which is a contract between two nations, the stipulations of which must be executed by an act of congress before it can become a rule for their decision.

These two cases involved the treaty with Spain of 1819, and they grew out of the words used in it, that certain grants, “ shall be ratified and confirmed.” The court held that .if these words imported that those titles “ are hereby ratified and confirmed,” then the treaty by virtue of its being the supreme law, operated •per se to ratify and confirm, but if they imported a contract, that they should at some future period be ratified and confirmed, then the treaty did not execute itself, but it must be executed by an act of congress before it could become a rule for the decision of the courts. In other words, where the treaty is a contract to be performed in futuro, the English rule, as laid down by Lord Denman in 1 New Sess.Ca. is applicable, the courts have not any power but under the statute, and if its provisions are not clearly complied with, they have no power at all in the matter.

The Supreme Court of the United States a third time, in reference to those words, reiterate the doctrine. In the U. S. v. Pescheman (7 Peters, 87), Ch. J. Marshall says, that although the words “ shall be ratified and confirmed” are properly words of contract stipulating for some future legislative act, they are not necessarily so. They may import that they shall be ratified and confirmed by force of the instrument itself.

In the latter signification of the terms, in' a country where the treaty is the supreme law of the land-, it may perchance be well said that the treaty executes itself. But this provision in the convention with France under which this prisoner is held, can in no such sense be held to execute itself. It never was intended to act in presentí. It was a contract between the two nations to be executed only in futuro, and in the language of principle, of the action of congress and the decisions of the federal judiciary, it stipulated for future legislation, without which, as the Queen’s Bench declares, the courts have no power at all in the matter.

In the debate in congress on the Jonathan Robbins matter, it was stated that President Washington had entertained doubts whether the extradition clause in Jay’s treaty could be executed without legislative action. And in 20 Sergt. and Rawle, 135, the Supreme Court of Pennsylvania express the same doubt, and declare that the opinion of the executive hitherto had been that it had no power to act.

In the case of Prigg v. Commonwealth of Penn. (16 Peters, 624), the provision of the constitution as to the surrender of fugitives from service was under consideration. Story, J., in delivering the opinion of the court, speaking of that claus.e which enacts that the fugitive shall be delivered up on claim of the party to whom such service may be due, says, We think it exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some farther remedial redress than that which might be administered at the hands of the owner himself. * * * They require the aid of legislation to protect the right, to enforce the delivery and to secure the subsequent possession of the slave.”

And the court in that case, in adjudicating upon language very similar to that contained in this treaty, declare that the constitution does execute itself so far as to establish the absolute right of the owner to recapture his slave, but that .to enforce the right the aid of legislation is required. And by parity of reasoning while we may regard this treaty as executing itself so far as to establish the right of the French government to the surrender, legislation is required to enforce the delivery and secure the subsequent possession of the fugitive.

The want of this legislative sanction on which so much stress is laid, is not mere matter of form. It is a substantial right and involves too deeply the liberty of the citizen to be dispensed with.

Treaties by our government are made by the executive without the sanction of the legislature. The extradition provided for by this convention with France is not confined to the subjects of France. An American citizen may be demanded by the French government, and our executive may, on such demand, banish a native of our soil — nay, if one, then hundreds. And it becomes us well to see that power so great should be properly guarded

There is another consideration flowing from this view of the case. ' Neither the constitution, the laws nor the treaty, which together constitute the supreme law as to this case, provide for the interposition of the judiciary in the exercise of this power On the other hand the treaty provides that on the part of the United States the surrender shall be made only by the authórity of the executive thereof. And although the executive has, in this case, with great propriety, invoked the aid of the judiciary, yet he has done it in such a manner that the decision of the subordinate tribunal appealed to can not be reviewed in the court of dernier resort and therefore becomes final.

And if the right claimed in this case for the executive to act in the matter without legislative sanction, be once firmly established, I can not discover any provision in the supreme law which renders it necessary for him to seek the aid of the judiciary. It may be convenient for the executive to resort to the machinery of the judiciary or the incumbent for the time being may entertain such a sense of duty as to induce such a resort; but the right once established as now claimed, it must necessarily become a matter of discretion with the executive, whether he will require the assent of either the legislative or judicial departments to his surrendering to a foreign government any person native to the soil, or immigrant, whom it may please to demand as a fugitive from justice.

In the absence of any statutory provision, the executive can resort for the rule of its action only to the treaty. The treaty with France nowhere provides for a resort to the judiciary. Persons accused of crime shall be delivered up, 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 would justify their apprehension and commitment for trial. How established, and before what tribunal! It is the executive alone who can surrender, and if the treaty alone is to be the guide of his action, then when he becomes satisfied that the commission of the alleged crime is established, whether that be with or without the aid of the judiciary, he can surrender.

Such is the claim presented before me, and, if established, then is the liberty of the citizen, at .least as respects extradition, subject to the executive discretion to an extent that is calculated to alarm even a country where freedom in the aggregate is so common that its invasion in detail is too often and too easily disregarded.

To meet an objection so formidable in its character, it .is urged that the aid of the judiciary must of necessity be invoked in the execution of the treaty.

I have already had occasion to decide in this case, that the state magistrates have no original authority in the matter. Not having seen any reason for changing my opinion, and that opinion having been acquiesced in by all parties concerned in this matter, it must be regarded as pro tanto the law of this case. The remaining question then is, whether any of the federal magistrates have the authority! The question may well be put still broader, and comprehend not merely the inquiry whether the federal judiciary may entertain jurisdiction, but also whether it ought not to be the duty of the government, and the right of the prisoner, to make the appeal to them. I will not stop, however, here to consider that question, but pass at once to the simple topic of the authority of the federal magistrates, voluntarily or otherwise, to act in the matter. And this topic need not be discussed any further than to the extent and as to the manner in which the authority has been exercised in this case.

It must then be observed in the outset, that the action on which the prisoner was committed, was not the action of any court, but of a district judge as such. The arrest, examination, and commitment were-none of' them the act of the district court, but of the judge as such at chambers, or as committing magistrate. It is important to keep this fact in mind, as it is one of the main grounds on which the United States Supreme Court refused to the prisoner his application for the writ of habeas corpus, and it brings us to the real, question in this case, whether a district judge, not sitting in court, has the power to aid in carrying a treaty into effect.

Marshall, in his speech in the Robbins case, repeatedly denied the authority of the judiciary in every form. That was the second proposition he maintained (5 Wheat. App. 16): which was that the case was a case of executive and not judicial decision. He proceeded to refute the position of Mr. .Livingston, that the judicial power of the United States expressly included that under consideration. He maintained (j>age 77), that the judicial power can not extend to political compacts, as the establishment of a boundary line, &c., or the case of the delivery of a murderer, under the 27th art. of our present treaty with Britain, and he proceeded with this language : “ The gentleman from New-York has asked, triumphantly asked, what power exists in our courts to deliver up an individual to a foreign government! Permit me, said Mr. Marshall, but not triumphantly, to retort the question. By what authority can any court render such a judgment! What power does a court possess to seize any individual and determine that he shall be adjudged by a foreign tribunal! Surely our courts possess no such power. Yet they must possess it, if this article of the treaty is to be executed by the courts. And he ■concluded with the remark, “The case was in its nature a national demand made upon the nation. The parties were the two nations. They can not come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance.”

Again {on page 28), he says: It is then demonstrated that according to the practice and according to the principles pf the American government, the question whether the nation has or has not bound itself to deliver up an individual charged with having committed murder or forgery within the jurisdiction of Britain, is a question the power to decide which rests alone with the executive department.

The inferencé from that debate and its results, is as fair, perhaps, as any other, that the majority of congress who went with him on that occasion, and in the language of Judge Story, “ put the question at rest forever,” intended to sustain that as well as other principles which he then advanced.

Mr. Marshall maintained that, a treaty providing for the surrender of fugitives being made, the executive was competent of itself, without judicial or legislative aid, to execute it. How far he is competent without legislative aid, has already been shown from authority, upon principle and by the action of the government for fifty years. And the United States Supreme Court, in the case of Holmes v. Jennison (14 Peters), and more recently on the application of Metzger for a habeas corpus, have recognized the necessity of judicial action.

But then the questions recur, whence do the judiciary derive their authority to act in the matter? Who is to set them in motion, and what is to regulate and control the form and manner of their going? And how are the rights of the accused to be protected?

These are important questions under our state constitution, which declares that no man shall be deprived of any of the rights or privileges secured to him, unless by the law of the land or the judgment of his peers.

The learned judge, upon whose warrant the prisoner was committed, evidently has strong doubts upon this subject, though he thinks them capable of a satisfactory solution. But the solution which he discovers is applicable only to courts of the United States, not to the judges acting out of court, and he seems to have overlooked the distinction which the Supreme Court have since rendered so important, as on that ground to deny to the prisoner the privilege of having his case reviewed in the federal courts. Under that decision, I am not at liberty to disregard so grave a distinction, and am compelled to inquire, if, perchance, the courts have the power, does it follow that the judges out of court possess it also? If so, whence does it flow? Not from the constitution, for that is silent on the subject

-not from the treaty, for that is equally silent — not from any express statutory enactment, for the want of that has been throughout the whole case the great ground of complaint— and not from necessary implication from any power otherwise granted.

It seems to me, then, that it can trace its origin to no other source than the necessity or convenience of the case. When we are brought to this point, then, the whole course of reasoning on which was founded my decision, that the police magistrate acted without authority, becomes equally applicable to the district judge. In the absence of any provision of the constitution, of the treaty or of the statute, conferring the power upon that officer, I am compelled, by the view which I then took'of the case, and which was acquiesced in on all hands, to arrive at the same conclusion as to his power.

It is with unfeigned diffidence, and after long consideration, that I have imbibed a view of this case, so different from that entertained by the learned judge whose decision I am compelled, from my position, thus to review. His long experience and the high respect which I entertain for his judicial character, might have inclined me to yield my own conviction to his, if his own opinion of the power of the United States court had been clear and decided, or if he had at all considered the power of a judge out of court; a distinction, I repeat, which has been rendered important by the subsequent decision of the Supreme Court of the United States.

There is another view of the case which has had its weight with me, and that is the mode of reviewing the decision of one of the federal judiciary, which is thus brought about. Such review is not ordinarily through the state tribunals, yet I see no way in which it can be avoided in this case. I was bound by the law of the sovereignty whose minister I am, under severe penalties, to allow the writ of habeas corpus. It was to the prisoner, under our laws, a writ of right. The United States Supreme court having denied to him the privilege of carrying up the decision of the district judge directly for their review, he had a right to resort to the state tribunals as the conduit through which he can more indirectly pass to that ultimate tribunal, whose peculiar province it is to pass upon all questions arising under treaties made by the authority of the United States.

The writ being returned before me, it was my duty to inquire into the cause of his detention, and that not merely as it appeared on the warrant by which he was held, but as it might appear from any fact alleged before me, to show that his imprisonment or detention was unlawful, or that he was entitled to his discharge (2 Revised Stat. 569, § 50). I have, therefore, of necessity, gone behind the mandate of the president and inquired into the legality of the foundation on which it rested. And finding it to be wanting in the legal aliment necessary to support it, I have no alternative but to declare that the prisoner can not lawfully be held under it.

It will be observed, that I have in this opinion omitted to discuss many of the points raised before me on the several arguments, which have been had in the case. This omission has not arisen from any want on my part of attention to and careful consideration of them, but solely from the belief that their consideration was not necessary to the determination of the case, on which I was to render my judgment.

There is, however, one topic, on which I differ in opinion with the learned district judge, which strikes me with so much force, that I can not forbear dwelling a moment upon it.

The Spanish treaty, which has been already alluded to, contained a stipulation as to the ratification and confirmation of certain grants of land therein mentioned. The English side of the treaty contained in that regard, the words “ shall be ratified and confirmed.” The United States Supreme Court, in construing those words in Foster v. Neilson (2 Peters, 253), held that they imported a contract to be performed at some future time, and therefore, as has been already mentioned, required legislation before that part of the treaty could become a rule for the courts.

That treaty again came before the court, in United States v. Percheman (7 Pet. 87), when it was said that the treaty was drawn up -in the Spanish as well as the English language. Both were originals and were unquestionably intended by the parties to be identical. The Spanish had been translated, and they then understood that the article (of the treaty) as expressed in that language, was that the grants “ shall remain ratified and confirmed,” &c. The court then holds, that if the English and Spanish parts can, without violence, be made to agree, that’construction which establishes this conformity ought to prevail. No violence is done to the language of the treaty by a construction which conforms the English and Spanish to each other. Although the words “ shall be ratified and confirmed/’ are properly words' of contract, stipulating for some future legislative act, they are not necessarily so. They import that’ they shall be ratified and confirmed by force of the instrument itself. When we observe that in the counterpart of the same treaty, executed at the same time, by the same parties, they are used in this sense, we think the construction proper if not unavoidable.

To apply that principle to the case in hand.

The convention with France, under consideration, is drawp up in the French as well as the English language. In the latter language, when the party to be surrendered is spoken of, he is twice spoken of as the person charged” and twice as the per son “ accused.” In the French counterpart, the expression is uniformly accuse: les individus accuses”— “ les individus qui accuses” — “ les individus qui seront accuses” — “ L’individu ainsi accuse,”

It appears from tbe opinion of the learned district judge, that it was claimed before him that this French phrase was equivalent to the term in our law indicted or arraigned, and that it was proved before him that such is the understanding of the term by the bar and the courts in France: inculpé and prevenue, designate persons against whom criminal charges or proceedings are instituted up to the period when the charges are acted upon by the Chambre íes mises en accusation, and an accusation is decreed by it, and then and not before they become accusés (Code d’inst. Crim. Arts. 127, 128, 241, 265).

The same question, then, arises here that arose under the Spanish treaty, which language is to prevail in the construction? If the English, then a party, merely “ charged” or “ accused” before the committing magistrate may be demanded. The prisoner is in that precise situation. He has been charged or accused before a magistrate authorized to arrest, and nothing more. But if the French phrase is to prevail, then the prisoner does not come within the treaty, because he has never been indicted or arraigned, never been mis en accusation.

There is a great difference in the French practice, as well as in ours, between a person merely charged with a crime- and one who has been indicted; between inculpé and accuseé. There is much more solemnity in the latter than in the former, more probability of guilt; a farther progress toward conviction has been attained, and the questions both as to the guilt of the prisoner and the nature of the offence, no longer rest merely upon the untried and uninvestigated complaint of a party, but have been investigated by the proper tribunal, the grand jury or the Chambre des mises en accusation, and probable cause lor the accusation been duly found, and the nature of the offence charged duly defined.

This is an important consideration, for it is not every offence with which a person ma.y be charged, for which he can be surrendered. It is only a few specified cases, and it often becomes an extremely difficult question for courts, even after the fact is established, to ascertain the nature of the offence growing out of it

In this case, it is very difficult, if not quite impracticable, for an American lawyer to determine whether the act charged upon the prisoner was forgery under the French law. If the matter had passed through the Chambre des mises en accusation, and the prisoner had been mis en accusation, had become accuse, it would have been judicially determined that if the prisoner had done the acts imputed to him, it would constitute the crime of forgery, but now the complexion of the act, whether forgery or not, rests, in a great measure, if not solely, on the charge of the complainant. So, too, under our law, it is often difficult to define the boundary between breach of trust and constructive larceny; between mere fraud and the felony of obtaining money under false pretences. And when we come to the exercise of so important a duty as the surrender of a native or naturalized citizen to the demand of a foreign nation, to be tried in a foreign'judicatory, shall it depend on the complexion which the anger or malice of the complainant may give to the case, or shall it obtain its hue from the investigation which the grand jury or the Chambre de Conseil may subject it to?

These inquiries are too important to have escaped the attention of the contracting parties, and hence we find a phrase, having a definite meaning in the French code, entirely incon sistent with the idea of allowing so important a consideration as extradition to rest upon the color which the complainant may give the matter, purposely, repeatedly and carefully used, in a manner which, under our law, gives it controlling influence over both parties of the treaty. So that a person demanded of the French government by ours, would not be surrendered, unless he had been indicted or mis en accusation. At all events, the French government might so act with great propriety, and point to the language it had carefully used in the convention as a perfect answer to the demand.

Entire reciprocity was evidently aimed at by both parties, and I can not conceive a reason why the language of the Supreme Court, in regard to the Spanish treaty, does not apply here with equal force, and why I am not bound to hold, as the Supreme Court then held, that if the English and French parts can without a violence be made to agree, that construction which establishes this conformity ought to prevail, and that no violence will be done to the language of the treaty by a construction which conforms the English and French to each other.

If this construction is to prevail, then, it is inevitable that tho prisoner is not within the treaty, and can not be demanded by the French government, nor surrendered by the American, but is entitled to the protection of the laws of this state against the attempt to surrender him.

The conclusion, then, a«t which 'I have arrived is, that the prisoner is not a party accused — mis en accusation — within the meaning of the treaty, and that the president can not execute the power of extradition without both legislative and judicial sanction, and I acknowledge that the conclusion commends itself to my favor, because of the protection it is calculated to afford to personal liberty against executive authority.

The prisoner must therefore be discharged.


source: Caselaw Access Project

author: Edwards, J. — Daly, J. —

license: Public Domain

text:
    Supreme Court. At Chambers. New York
    July, 1847.
    Before Edwards, Justice
    In the matter of Jose Da Costa and Jose Da Rocha.
    The adjudication of an officer having power to issue and decide upon a writ of habeas corpus, may he set up as res adjudícala upon any subsequent writ 'of habeas corpus, and is conclusive upon the same parties, when the subject matter is the same; and there are no new facts.
    The parties are the same, where the writ is issued on behalf of the same person, against the same respondent, although the relators are different.
    The material facts alleged in the return, which are not denied by the party brought up must be taken to be true.
    The circumstances under which this application was made, sufficiently appear in the opinion of the court.

      John Jay and J. L. White for the slaves.

      1. The writ of habeas corpus is a substantial right, and not the mere shadow of a right. It is a writ ex debito justices, intended to afford an easy, prompt and efficient remedy for all unlawful imprisonment — a writ to which oil persons are entitled in the most expeditious and ample manner, and by which personal liberty is not left to rest for its security upon general and abstract declaration of right— nor allowed to depend upon the arbitrary discretion of any one man.
    It is a writ, for the denial of which judges are made personally responsible, and of the benefits of which no man can rightfully be deprived (2 Kent’s Com. p. 26, et seq. on personal liberty and security; 1 Stephens on the Eng. Constitution, p. 454, title Habeas Corpus Jict; 2 JV. Y. Rev. Stat. 563, et seq. and especially § 44 [§ 42], stating the excepted cases into which the court can not inquire).
    In Great Britain, from which wTe received the habeas corpus act without alteration, it is well established that the doctrine of res judicata has no application; but that a party restrained of his liberty has a right to the opinion not only of every court, but of every judge, as to the legality of the imprisonment, and that each court and judge, when applied to, are bound to consider and decide the case upon their own examination, without being concluded by previous decisions in the same matter (Ex parte Partington in the Court of Exchequer (1845)y 13 Meeson $• Welsby, 679,per Parke B. and Pollock, C. B. See the same case reported 2 Dowling Sf Lowndes’ Practice Reports, 650, and 9 London Jurist, 93).
    2. It has never been determined in our courts that the doctrine of res judicata applies to decisions in writs of habeas corpus involving the liberty of the citizen. Such a principle, once established, would destroy the essential value of the writ, as affording “ a free, easy, cheap, expeditious and ample ” remedy against infringements of personal liberty, and would tend to place the liberty of the citizen at the disposal of a single judge; which is the very thing the writ is intended to prevent.
    The case of the People v. Mercein (25 Wend. R. 64), which has been relied upon tc maintain such a doctrine, involved no

      question of personal liberty, but simply the question whether the custody of an infant child, under a certain state of facts, should be given to the father or to the mother. Various writs having been issued, and the matter having repeatedly occupied the attention of the judges, the court for the correction of errors, after a full examination of the testimony, declared, by special resolution, that that case was res judicata (see remarks of Cowen, J., People v. Mercein, 3 Hill, 440), but their decision did not extend to any case involving personal liberty: and no general language used by individual judges, in their opinion, can suffice to abridge or lessen the constitutional authority of this writ of right.
    A decision tending by an enlarged construction to overthrow or impair a fundamental right, must receive such a construction as shall best preserve the liberties of the people — and the decision in this case on the point of res judicata, declared as it was by a special resolution, only recognizes the right of a judge to apply the doctrine of res judicata to cases of habeas corpus involving the custody of an infant child. Had it extended to all other cases of habeas corpus, such decision would have been utterly inoperative to abridge the right of a person restrained of his liberty to the full benefit of the writ, according to its ancient character — which includes his right to the opinion of every court and of every judge, upon the legality of his imprisonment — for the reason that the right to this writ is secured, not only by the constitution of this state, but by the constitution of the United States, and can not, therefore, be taken away, crippled, or abridged in any degree by the legislation or the adjudications of individual states.
    3. In case the doctrine of res judicata could apply in its full force to proceedings on habeas corpus, involving the liberty of persons, which is utterly denied, this matter, upon the facts shown by the record, is clearly not within the rule, but must be held to be res integra and res intacta, as wanting in all the essential requisites to constitute it an adjudicated case. Upon the essentials of res judicata, &c., see 2 Kent’s Com. 12 Co. Lit. 352, b. 303 a. Bronson, J., in People v. Mercein, 25 Wend. 82»
      Same case, 3 Hill, 420; 3 Cowen and Hill’s Phil, on Evidence, p. 824, note 586, and authorities there cited.

    1. The opinion of Judge Daly annexed to the return of the respondent, is unaccompanied by any judgment, order or decree, and does not therefore constitute a record that can be pleaded by way of estoppel. Further evidence on the point, whether or not there was an order-is inadmissible. We can look only at the return, and that shows the conclusions of Judge Daly’s mind, but not his final action as a judge. We have the reasons for the -act, but the act itself has never been performed. Until the act is performed it can not be on record, and until the record is complete, it can not be an estoppel.
    2. The decision of Judge Daly, if his opinion be regarded as such, was not a solemn decision of a court of justice, or of a judge in the exercise of his rightful jurisdiction, for the reason that a judge of the Common Pleas, under the new constitution, has no authority to issue a writ of habeas corpus — and it was in a proceeding coram non judice, for the additional reason that the writ had been formally dismissed by the attorney of record, by whom the same had been issued, the said attorney being clothed also with full authority from the negroes, before any order was made or decision pronounced, or opinion given, and there was, therefore, no proceeding before the judge, nor any conflicting claims to require, or justify his decision of the questions raised by the return.
    Upon the right of a plaintiff to discontinue his plaint at his own pleasure, and suffer a nonsúit, see 3 Blaclcstone’s Com. 376, 7; 1 Burrill’s Prac. 241; People v. Mayor’s Court of Albany, 1 Wend. 36; Wooster v. Burr, 2 Wend. 295.

    3. The proceeding before Judge Daly was not between the same parties or privies — but a matter inter alios acta — between the relator, John Inverness, and the captain — with which the Africans had nothing to do. It was a proceeding instituted without their privity or consent, and by which they are in no way bound. The relator was to them a stranger, the counsel unknown and unauthorized: ignoir.nt of the language, they had no understanding of the matter.

      4. A decision is not res juaicata, unless the parlies to be affected by it have had an opportunity of being fairly heard, and the decision is made upon due deliberation by the judge These Africans in the former proceeding, were denied a hearing. The order of the court was based upon an admission on the record made without their authority, knowledge or assent •— and the truth of which they positively deny.
    Upon the point that records are only prima facie evidence, and may be disproved, see Bradshaw v. Heath, 13 Wend. 407; Language of Hosmer, C. J., quoted in same case; Idem. 415, 416, and Shumway v. Stillman, 6 Wend. 447; 2 Rev. Stat. 563, et. seq. as to the rights of the party to show the facts relative to his imprisonment.
    5. The grounds of the decision must be the same actually and necessarily, so that the evidence in the one would support the decision in the other.
    In this case, the former decision was based on the admission apon the record, that the Africans were seamen; the present record shows they are not, and can not be, seamen, in the meaning of our law, and it further shows a new imprisonment, manacling, and restraint differing from any that appeared in the first proceeding, and which, of itself, admitting them to have been seamen, was a breach of the contract assumed to exist between them and the captain — and has rendered that compact void, and determined the relationship in which the opinion of Judge Daly declared that they stood.
    6. This writ should not be dismissed on the ground that the case is res judicata, even did it possess the essentials which it wants, for the reason that it appears by the opinion of Judge Daly, that the Africans were remanded as seamen, although admitted by the captain to be slaves, and it being an established principle that no slave can either make or assent to a contract, and it being the law of this state that all slaves brought within its borders are free, and that servitude under any possible form, pretence, or circumstances, shall not be recognized by our courts, save in the single case of fugitives held to service in the southern states, it would be a violation of constitutional right, a denial of justice, and an outrage upon personal freedom, were a judge, when appealed to for protection upon habeas corpus, to dismiss that writ upon the strength of a decision shown to be erroneous, and remand these Africans to an imprisonment known to be unlawful, to a condition of servitude which the law abhors, and has peremptorily forbidden, and to the power of a master who has threatened them with violence, the instant he escapes from the jurisdiction of a free state.

      Purroy, for the respondent.
   Edwards, J. —

A writ of habeas corpus was issued by his honor, Judge Edmonds, on the 17th day of July last, directed to Clemente Jose Da Costa, master of the Brazilian bark Lew Branca, commanding him to have the bodies of Jose da Costa and Jose da Rocha, by him imprisoned and detained, as was alleged, together with the cause of such imprisonment and detention, before him, the said judge, at a time and place therein specified. The respondent appeared before Judge Ed-monds, and made his return to the said writ, under oath; to which the said da Costa and da Rocha put in an answer, also under oath. At this stage of the proceedings, by the consent of the counsel for all the parties, the writ was amended in such a manner as to be returnable before me, and, by a similar consent, I allowed the writ nunc pro tunc.

The return of the respondent admits the detention of da' Costa and da Rocha, and alleges that before the issuing and service of the said habeas corpus, to'wit: on the 10th day of July last, a writ of habeas corpus was allowed and issued, by the Hon. Charles P. Daly, one of the associate judges of the court of common pleas, in and for the city and county of New-York, and of the degree of counsellor of the supreme court, directed to the said respondent, with the object and for the purpose of producing, before the said judge, the persons named in the said first mentioned writ, for the purpose of inquiring into the cause of their detention or imprisonment by the said respondent. That, in obedience to the said writ issued by the said Judge Daly, the respondent produced before the said judge, the persons of the two negro men called Jose da Costa and Jose da Rocha. That upon said writ so issued by said Judge Daly, and upon the return thereto, proceedings were duly had before said judge, who after mature deliberation, and after hearing the allegations and arguments of counsel on both sides, decided and adjudged, on or about the 16th day of July last, that the said Jose da Costa and Jose da Rocha were legally under the restraint of the said respondent, and that they should be remanded to his custody; which said decision and judgment of said Judge Daly, it is alleged in the said return, are still in force, unreversed, not set aside, nor made void. The return further states, that in pursuance of said decision and adjudication, the persons of said da Costa and da Rocha were committed to the custody of the respondent. The return also sets, forth other matters, to which it is not necessary, in this place, to allude.

. The answer of da Costa and da Rocha, does not deny the substance of any of the allegations above cited from the return of the respondent.

Upon the said return and answer, the respondent contends that there has been an adjudication of the matter by Judge Daly, and that such adjudication is binding upon me, and precludes any investigation into, the facts of the case, unless new matters are shown, which have arisen since the adjudication of Judge Daly, and which renders such investigation proper.

Before the enactment of the Revised Statutes, the law seems to have been settled, that the return of the respondent was conclusive, and that none of the facts contained in it could be controverted. (3 Hill, 658, note 30.) By the revised statutes, the party brought up may deny any of the material facts set forth in the return, or allege any fact to show either that the imprisonment or detention is un.awful, or that he is entitled to bis discharge. (2 R. S. 471, p. 50.)

If, then, any of the material facts set forth <n the return, are not denied by the party brought up, the return, pro tcmto, has the same effect as before the revised statutes, and those facts must be taken to be true. (3 Hill, 658, note 28.)

Upon this construction of the law, I am bound to assume that the facts set forth in the return, and not denied in the answer, are true, and that da Costa and da Rocha have heretofore been brought before Judge Daly, upon a writ of habeas corpus, and that, after an investigation into the causes of their detention by the respondent, Judge Daly adjudged that they were legally under the restraint of the respondent, and that they should be awarded to his custody; and that said judgment now remains in full force.

It thus appears that there has been an adjudication, upon a writ of habeas corpus: that da Costa and da Rocha were at the time of the said adjudication, under the legal restraint of the respondent.

The next question is, does the principle of res adjudicate: apply to this case, and am I precluded by the above mentioned adjudication from any further inquiry into the subject 1 In the case of Mercein v. The People ex rel. Barry, (25 Wend. 64) it was decided by the court of errors of this state, that the principle of res adjudícala was applicable to a proceeding under habeas corpus. Two opinions only wrere delivered; one by the chancellor and the other by Senator Paige. The question under review had been decided by Judge Inglis, then a judge of the court of common pleas, upon a writ of habeas corpus issued by him. The chancellor, in delivering his opinion, said that he concurred in the decision of Judge Inglis, that the principle of res adjudícala was applicable to a proceeding upon habeas corpus; and that it could make no difference in the application of the principle, whether the first writ was returnable before a court of record, or a judge or commissioner out of court, for, in neither case, ought the party suing out the writ, to be permitted to proceed ad infinitum before the same court or officer, or before another court or officer, having concurrent, jurisdiction, to review the former decision, while the facte remain the same; but if dissatisfied with the first decision, should appeal to a higher tribunal.

Senator Paige says, that “ if a final adjudication upon a habeas corpus is not to be deemed res adjudicata, the consequences will be lamentable. This favored writ will become an engine of Oppression, instead of a writ of liberty.” He further says, “ I think that the following rule will be found sustained by the cases, viz. : Whenever a final adjudication of an inferior court of record, or of an inferior court no't of record, or of persons invested with power to decide on the property and rights of the citizens, is examinable by the supreme court, upon a writ of error, on a certiorari, in every such case, such final adjudication may be pleaded as res adjudicata, and is conclusive upon the parties in all future controversies relating to the same matter.” And, finally, a resolution was adopted by the court. “ That in the opinion of the court, the decision of Judge Inglis upon the question of res adjudicata was correct, and in conformity to the law.” This decision fully and clearly establishes the rulq that the principle of re's adjudicata is applicable to proceedings upon habeas corpus.

The only question, then, that remains upon this branch of the case is, whether the same subject matter between the same parties, has been adjudged by an officer having power to ’issue and decide upon a writ of habeas corpus.

First. Is the subject matter the same ?

The subject matter under the first writ, was the imprisonment and detention of da Costa and da Rocha, and the adjudication of the judge was, that they were “ legally under the restraint of the respondent, and should be remanded to his custody.” The subject matter of the present writ, is the detention of the same persons by the respondent; and I am called upon to decide what was decided by Judge Daly, viz: Whether they are legally under the restraint of the respondent ?

Second. Are the parties the same?

The proceedings, in both cases, have been in behalf of the same persons, against the same respondent ’ The fact that the relators are different, does not alter the case.

Third. Had Judge Daly the power to issue the writ and to decide the questions arising under it 1

By the law, as it stood under the old constitution, it is not questioned that he had the power. By the new law, it is enacted that the “judges of the court of common pleas for-the city and county of New-York, shall have and possess the same powers, and perform the same duties as the first judge and assistant judges of the said court of common pleas now have and possess and perform.” (Laws of 1847, p. 281, s. 7).

There are several matters alleged in the answer of da Costa and da Rocha, for the purpose of showing that there was irregularity in the proceedings before Judge Daly. The answer to all these allegations is, that I am bound by the adjudication, and can not look behind it. If there has been irregularity, I have no power to decide upon that question, in this collateral proceeding. The remedy must be in a court sitting as a court of review.

But it is contended that new facts have arisen in this case since the decision of Judge Dály. The answer of da Costa and da Rocha, sets forth that since the said adjudication, and on the 17th July last, they were hand-cuffed and put in a storeroom, in the forward cabin of the vessel, and there confined, and that the respondent also threatened them with violence when he “ got them at sea.” These are not new facts of such a character as to change the relations of the parties. If there has been an abuse of the right which it has been adjudged that the respondent had to the custody of the persons held in restraint by him, the remedy is not by habeas corpus; much less so as to any threatened violence.

With these views, I am of opinion that the question presented to me under the present writ of habeas corpus, is res adjudicata, and that I am precluded from going into any investigations of the facts in the case; and that no new facts are set forth in the proceedings which authorize any interference by me. The writ must, therefore, be dismissed, and Jose da Costa and Jose da Rocha remanded to the custody of the respondent.

Note. — The following is the decision of Judge Daly, referred to in the preceding case:—

Daly, J. —

This is an application upon a writ of habeas corpus to discharge Jose da Costa, Jose da Rocha, and Maria da Costa, alleged by the relator, John Inverness, to be restrained of their liberty by demento Jose da Costa, master of the Brazilian barque Llembranea.

It is set forth in the return of the master, that the persons above named were brought from Rio de Janeiro to the port of New York, in the barque aforesaid.

That the two first named, Jose da Costa and Jose da Rocha, were shipped on board the Llembranea at Rio de Janeiro as part of the crew, and as such he is required to take them back by the laws of Brazil. That the woman Maria has come upon the voyage to this port as a servant and nurse to his wife and family, in whose service she now is. It is further set forth in the return, that Jose da Costa and the woman Maria, are slaves, lawfully acquired by the respondent, according to the laws of Brazil, by which laws, slavery is permitted and the acquisition, possession, and transfer of persons as property, allowed, recognized and protected.

That Jose da Rocha is also a slave, and the property lawfully acquired is as aforesaid, of Antonio Jose da Rocha Peresira, of Rio de Janerio, part owner of the barque, and by him committed to the custody of the respondent.

These facts are admitted by the relator, but he denies that they are sufficient to justify the detention of the parties concerned.

The fact that Jose da Costa and Jose da Rocha constitute part of the crew of the Llembranea, is an answer to the application for their discharge. By § 31st, of the existing treaty between the United States and Brazil, provision is made tor the arrest, detention, and custody of persons composing a part of the crew of any public or private vessel of either nation, who shall desert.

The consuls of the respective nations are authorized to apply to the proper judicial authorities, and upon proving by the exhibition of the ship:s roll, register or other document, that the persons claimed were part of the crew, they are required to be delivered up. They are to be put at the disposal of the consul, and may, at his request, be placed in any public prison until sent to the vessels to which they belong, or to others of the same nation. The treaties made under the authority of the United States, are declared by the 6th Article of the Constitution to he the supreme law of the land, to be binding upon the judges of every state, any thing in the constitution or laws of any state to the contrary notwithstanding.

I am bound, therefore, to regard and carry out the provisions of this treaty. And it would be a palpable violation of it3 obvious meaning and intent, to dis« charge persons upon a writ of habeas corpus, admitted to be part of the crew of a Brazilian vessel. If the two persons should desert, they could be reclaimed as a part of the crew. It would be the duty of the judicial tribunals of this state, in such a case, upon the proper application, to deliver them up.

The right of the master to detain them as a part of his crew, is necessarily implied When a duty is imposed to deliver them to him, should they desert from his service, he undoubtedly has a right to detain them as a part of his crew, if he has a right to reclaim them when they leave his vessel.

That they are slaves does not alter or vary the case, for were I to hold that they are free persons, according to the laws of this state, the master would still be entitled to retain them as members of his crew.

They must, therefore, be returned on board the vessel from whence they were brought in obedience to this writ.

It will not be necessary to determine the principal question argued upon the return, to wit: — Whether slaves voluntarily brought into this state, are to he regarded, as property within the meaning of that section of the treaty by which the United States has stipulated specially to protect the property of subjects of Brazil.

The point is not material to the matter now before me. Da Rocha and da Costa are left in the custody of the respondent, not upon the ground that they are his property, but because they compose a portion of his crew.

The question could only be material as far as respects the right of the respondent to detain the woman Maria. But she, by her own declaration, is under no restraint. The writ has been sued out without her knowledge, privity or consent. She has expressly declared her unwillingness to leave the service of the respondent, and expressed her desire to return with him to Rio de Janeiro.

As she is on board the respondent’s vessel of her free will, she can not be regarded as under restraint. The interposition of this writ, therefore, in her behalf, is not called for. She has elected to remain where she now is, and there is no room tp make any order respecting her.


author: Per Curiam.

text:
    Suprreme Court. Albany General Term,
    January, 1848

      Harris, Watson and Parker, Justices.
    The People vs. Franklin Graham.
    A recognizance taken in a court of Oyer and Terminer, for the appearance of a prisoner at a court of General Sessions, to answer to a pending indictment must be entered in the minutes of the court, or it will be void.
    Such entry must contain all the substantial parts of the recognizance, such as the acknowledgment of indebtedness, the offence charged and the condition &c.; a mere memorandum that a recognizance in a certain sum was taken is not sufficient.
    vVhat was said between the clerk and the bail, on the taking of a recognizance, can not be proved by the certificate of the clerk.
    This was an action of debt on a recognizance, tried at the Schoharie circuit, before Parker, circuit judge, in May, 1846.
    The plaintiffs alleged in the declaration, that on the 23d day of October, 1844, the defendant appeared before the court of Oyer and Terminer of the county of Schoharie, and acknowledged himself to be indebted to the people of the state of New York in the sum of four, hundred dollars, to be well and truly paid, if default should be made in a certain condition, &c., that if one Robert Streeter should personally appear at the next court of general sessions of the peace, to be held in and for the said county of Schoharie, then and there to answer to an indictment preferred against him the said Robert Streeter, for grand larceny, and to do and receive what should by the court be then and there enjoined upon him, the said Robert Streeter, and should not depart the court without leave, then the said recognizance should be void, &c. It was then alleged that the said Streeter did not appear at said court of general sessions, but upon being duly called made default, and that the recognizance was declared forfeited by an order of the court, &c. &c.
    The defendant pleaded nul tiel record

    At the trial, the plaintiffs, to maintain the issue on their part, introduced as evidence an exemplified copy of the record of the minutes of the Oyer and Terminer of Schoharie county, and also an exemplified copy of the record of the minutes of fhe court of general sessions, which copies are as follows:
    “ At a court of Oyer and Terminer, held in and for the county of Schoharie, at the court house, in the town of Schoharie, on Tuesday the 22nd day of October, 1844:
    Present — His Honor Amasa J. Parker, circuit judge; Charles Goodyear, Martinus Mattice, John Westover, Jonas Krum, Robert Eldridge,ywdges.

      The People v. Robert Streeter. — Indicted for grand larceny. Defendant arraigned, and pleaded not guilty.
    The court assign R. R. Menzie as counsel for defendant.
    Court adjourned till 8 o’clock to-morrow morning.
    Wednesday, October 23rd, 1844. Court met pursuant to adjournment.
    Present — His Honor Amasa J. Parker, circuit judge; Charles Goodyear, Martinus Mattice, Jonas Krum, John Westover, Robert Eldridge, judges.

      The People v. Robert Streeter. — Grand larceny.
    Indictment continued to next February sessions.
    Principal recognized to appear in sum of $400. Franklin Graham bail for his appearance, do. $400. Which recogni-sance was taken in the, following words: You, Robert Streeter and Franklin Graham, acknowledge yourselves to be severally indebted to the people of the state of New York, each in the sum of four hundred dollars, to be well and truly paid, if default be made in the condition following: The condition of this recognizance is, that if you, Robert Streeter, shall personally appear and remain at the next court of general sessions of the peace, to be held in and for the county of Schoharie, to answei to an indictment against you for grand larceny, and shall then and there do and receive what may be enjoined on you by the court, and shall not depart the court without leave, then thi's recognizance shall be void, otherwise of force. Are you, and each of you, therewith content?

      Schoharie County, Clerks Office, ss. — I, Thos. McArthur, clerk of said county, do hereby certify that I have compared the preceding copy of the minutes of the court with the original, and that it is a correct transcript therefrom (with the addition of the recognizanc.es being fully expressed in the copy) and of the whole of such original minutes, so far as relates to Robert Streeter.
    Witness my hand and official seal, the 16th day of l. s. May, 1846.
    Thos. McArthur, Clerk.
    At a court of general sessions of the peace, held in and for the county of Schoharie, at the court house, in the town of Schoharie, on Friday the seventh day of February, A. D., 1845:
    Present — His Honor Charles Goodyear, first judge; John Westover, Robert Eldridge, Jonas Krum, Martinus Mattice, judges.

      The People v. Robert Streeter. — Grand larceny.
    The defendant having been duly called, and not appearing, and Franklin Graham, bail for the appearance of the said defendant at this court, having been duly called to produce said Robert Streeter, and he not being produced — Ordered, on motion of Thos. Lawyer, district attorney, pro. tem., that the recognizance in this cause be estreated.

      Schoharie County, Clerks Office, ss. — I, Thomas McArthur, clerk of said county, do certify that I have compared the preceding copy with the original minutes of the court, and that it is a correct transcript therefrom and of the whole of such original, so far as relates to said Robert Streeter.
    Witness my hand and official seal, the 16th day of L. s. May, 1846.
    Thos. McArthur, Clerk.

      The counsel for the defendant objected to the introduction of the certificates upon the following grounds:
    1. It did not appear that a recognizance roll had been made, before the commencement of the suit.
    2. It did not appear that any recognizance was entered or any record of a recognizance made and filed.
    3. That there was a variance between the declaration and proof — that the declaration does mot aver that any order was made transmitting the recognizance from the oyer and terminer to the general sessions.
    The court admitted the testimony; to which decision the defendant excepted; and the testimony being here closed on both sides, the judge directed a verdict for the plaintiff, subject to the opinion of the supreme court; and the jury accordingly found a verdict for the plaintiffs for the debt claimed, subject to the opinion of the supreme court.

      R. R. Menzie, for defendant.

      Point 1st. The plaintiff should have been nonsuited on the trial on the ground that no legal or binding recognizance was entered into by defendant as required by statute, and that no recognizance roll had been made and filed. All the recognizances required or authorized to be taken in any criminal proceeding in open court, by any court of record, must be entered on the minutes of such court, and the substance thereof read to the person recognized. All other recognizances in any criminal matter or proceeding, or in any proceeding under the law respecting the internal police of this state, must be in writing and subscribed by the parties to be bound thereby. (2 R. S. 746, §24.) A mere entry in the minutes of the court not containing an acknowledgment of indebtedness to the people of this state, does not amount to a recognizance. ( The People v. Rundle, 6 Hill, 506; 17 Wend. 252; 4 ib. 387.)

      Point 2nd. The suit was improperly brought. The district attorney was not authorized to sue; no order to prosecute was entered; this appears affirmatively from the plaintiff’s evidence Whenever any recognizance is directed by law to be estreated, such estreat shall be made by the entry of an order directing the same to be prosecuted, and the same shall be prosecuted as herein directed. (2 R. £'. 486, §31.) It is provided, (2 R. S. 485, § 29) that whenever any recognizance to the people of this state shall have become forfeited, the district attorney of the county in which such recognizance was taken, shall prosecute the same by action of debt for the penalty thereof, and the pleadings and proceedings shall be the same in all respects as in personal actions for the recovery of any debt, except that it shall not be necessary to allege or prove any damages by reason of a breach of the condition of such recognizance; but on such breach being found or confessed, or upon a judgment by default, the judgment shall be for the penalty of the recognizance. It is conceded that it is not necessary to aver in the declaration that an order was entered to prosecute. ( The People v. Rlankman, 17 W. R. 252.) But the defendant is at liberty to insist upon the argument that no order to prosecute was entered, although the objection was not taken at the trial. The defect could not have been obviated, if made at the trial. On a case made, if it appear that the plaintiff ought not to have recovered on an objection which, if it had been specifically taken at the trial, could not have been obviated, the verdict will be set aside. ( Rich v. Penjield, 1 W. R. 380•, Lawrence v Borlce, 5 W. R. 301.)

      Point 3rd. The indictment being found on the pretended recognizance taken in the court of oyer and terminer, the general sessions had no jurisdiction of the matter, without an order being entered in the court of Oyer and Terminer. The declaration does not aver that an order was made sending the indictment and recognizance to the sessions. In this there is a material variance. The court of Oyer and Terminer may, by an order in their minutes, send indictments to the general sessions (2 R. S. 205, § 31). The whole of the evidence offered on the trial ought to have been disregarded — the minutes of the court are not properly certified. It appears from the certificate of the clerk, that the copy contains more than the original; see 2 R. S. 403, § 59, as to the form of such certificate. (7 Hill, 42, 4 Wend. R. 387.)

      P. S. Danforth (district attorney), for the people.
    I. The recognizance declared upon was a record in th«“ minutes of the court of Oyer and Terminer of Schoharie county (2 Rev. Stat. 624, § 24, 2d ed.; 2 Bouvier’s Law Dictionary, 413), as to the form of a recognizance.
    II. The statute does not authorize the making of a recognizance roll, but directs in what manner the recognizance is to be taken and how it is to be prosecuted. (2 R. S. 398, § 29, 4 Wend. 387.)
    III. There is no variance between the declaration and proof, nor is it necessary or proper to aver that an order was made transmitting the recognizance from the Oyer and Terminer to the general sessions. (17 Wend. R. 252).
   Per Curiam.

The statute requires (2 R. S. 746, §-24) all recognizances authorized to be taken in any criminal proceedings, in open court, by any court of record, to be entered in the minutes of such court, and the substance thereof to be read to the party recognized. That requirement was wholly disregarded in this case. No part of the substance of the recognizance was entered in the minutes of the court: there was entered only a memorandum of the fact that a recognizance was taken. It does not help the matter that the clerk certifies he addressed the defendant in appropriate words, m taking the recognizance. The failure to comply with the statutory requirement can not be supplied by any thing that was said at the time between the clerk and the defendant. All that was then said is improperly inserted in the certificate, and could not be proved by it. The clerk can only certify what appears of record.

All the substantial parts of the recognizance, such as tire acknowledgment of indebtedness, the indictment against Streeter and the offence charged, the condition, &c., should have been entered in the minutes of the court (The People v. Bundle, 6 Hill, 506).

No legal recognizance having been taken, judgment must be given for the defendant.

Judgment for the defendant.


author: Parker, J.

text:
    Supreme Court. Albany General Term,
    May, 1848.

      Hams, Parker and Watson Justices.
    The People vs. John Finnegan.
    As a general rule, it is not competent, in support of the testimony of a witness, for the party calling him, to prove that he has made declarations out of court corresponding with his testimony in court. The exceptions to this rule stated.
    And this rule is applicable to cases where an attempt is made, on a cross-examination, to throw doubts on the testimony of a witness, as well as to oases where other witnesses have been called and examined to contradict the statement of the witness.
    An exception is available for the purpose of correcting an error in the admission or rejection of evidence, in granting or refusing a nonsuit, in charging or refusing to charge the jury on a specific proposition, or in deciding any question on the trial affecting the merits; but all that relates to the manner of onducting the trial, to the forms of the questions asked, if not objectionable in substance, and to the range allowed to counsel in their arguments, is matter of discretion, as to which a remedy for a supposed error can not be had by an exception.
    Where the court permitted the counsel for the people to urge to the jury that they might infer from the prisoner’s omission to prove a good character, that his character was bad, because the counsel for the prisoner had stated to the jury in opening the defence that he had known the prisoner from his youth and knew him to be a man of fair character, held, that such decision could not be reviewed on exception, the latitude to be allowed counsel in addressing the jury being a matter of discretion; but that the proper way to have raised the question was by asking the court to charge, after the counsel had addressed the jury, on a specific proposition as to the legal presumption, and if the court refused so to charge then to except to such refusal.
    In criminal, as well as in civil cases, except in' a criminal prosecution for libel, it is the duty of the court to decide the questions of law and of the jury to decide the questions of fact.

      Certiorari to the mayor’s court of the city of Albany. The prisoner was indicted and convicted of robbery in the first degree. The indictment charged that the prisoner, on the 20th day of November, 1847, at the city and county of Albany, with force and arms, in and upon one William F. Terhune, &c., feloniously did make an assault and certain articles of personal property, therein described and belonging to the said Terhune, from the person of the said Terhune then and there violently and feloniously did steal, take and carry away, to the great damage, &c., and against the form of the statute, &c. The prisoner pleaded not guilty, and the cause came on to trial in the Albany mayor’s court on the 16th February, 1848. After Terhune had been called as a witness on the part of the prosecution and had been fully examined and cross examined as to the circumstances of the transaction in detail, Weare D. Parsons was called as a witness for the prosecution and testified that he was the keeper of the Carlton House, where Terhune stopped at the time of the alleged robbery; that he recollects that Terhune came in, that evening about eight o’clock, that his back was covered with sand and his knees and other parts of his body were covered with clay or dirt; that his face was a little scratched, &c., and that he said something when he came in. He was then asked by the district attorney the following question. What did Terhune say when he came in about the robbery and the persons who robbed him? The prisoner’s counsel objected to the proof by this witness of the account given by Terhune on that occasion, of the manner in which he was robbed, and of the persons who, he alleged, committed the robbery. The court overruled the objection and the counsel for the prisoner excepted. The witness then answered, that Terhune came into the house and said he had been robbed. Witness asked him of how much, and he stated of one hundred and seventy dollars, or something near that. Witness then asked him where, and he answered somewhere in the suburbs of the city; he could not tell where; but it was somewhere on the hill. Witness then asked him if he knew who it was that robbed him. The prisoner’s counsel objected particularly to the witness stating who Terhune said had robbed him. The court overruled the objection and the prisoner’s counsel excepted. The witness then stated the particulars of the transaction as related by Terhune, including a description of the persons who robbed him, though Terhune said he did not know their names.
    While the counsel for the people was addressing the jury, he said he had two questions which he would put to the prisoner’s counsel and which he wished them to answer, if they could, and which were of vital importance to the prisoner. The first of which was, why they had not proved the character of the prisoner to be good1? That they would have done this if they could, and not having done so, the fair inference was that they could not do it, because his character was bad. The counsel for the prisoner objected to these comments upon the fact of the omission to prove the prisoner’s character, and claimed that no such inference should be drawn from the fact. The court decided that as the counsel for the prisoner, in opening the cause had stated that he had known the prisoner from his youth up and knew him to be a man of fair character, the public prosecutor might in reply, in answer to that statement comment upon the fact that no evidence of good character had been produced by the prisoner, and that the court saw nothing objectionable in the comments so made. To Ihis decision and ruling of the court, the counsel for the prisoner excepted.
    The court charged the jury among other things that they were judges of the law and the fact in this case, and that, for that reason, the court had less power in criminal, than in civil cases, and that the duty of the court was only advisory: to this point of the charge the prisoner’s counsel excepted.
    The jury found the prisoner guilty of robbery in the first degree. The court suspended sentence, to give the prisoner’s counsel an opportunity to make a bill of exceptions, but ordered that the prisoner in the meantime should remain in custody, and should not be let to bail. A bill of exceptions having been perfected, and the proper certificate of a judge obtained, as required by 2 R. S. 736, § 24, the district attorney removed the indictment, bill of exceptions and other proceedings to this court, by writ of certiorari, according to the provision of section 27, 2 R. S. 736.

      II. G. Wheaton,

    for the prisoner, made the following points: I. The court erred in admitting the witness Parsons to testify to what Terhune told him took place on the night of the robbing, and particularly to what he said as to who it was that had robbed him. '{Dudley v. Bolles, 24 Wend. R. 472.)
    II. The court erred in deciding that the counsel had a right to urge to the jury, that they might infer from the prisoner’s omission to prove a good character, that his character was bad. (The People v. White, 24 Wend. 520, 573.)
    III. The court erred in charging the jury that they were the judges of the law and the fact, and that the only duty of the court .was advisory. {Cow. and Hill’s notes, 1501.)

      S. II. Hammond (district attorney), for the people.
   By the Court,

Parker, J.

What Terhune told Parsons on the night of the robbery, could not have been received in evidence, on the ground that it was a part of the res gesta. It occurred subsequent to the robbery, though very soon after it. It was clearly no part of the transaction itself, nor was it necessary to the proper understanding of any part of what was done.

But it was probably received in evidence for the purpose of corroborating the testimony of Terhune, who had previously been examined as a witness for the prosecution, by showing that he made the same statements out of court and immediately after the occurrence which he had made as a witness in court. There is certainly some authority for receiving evidence of that character. (People v. Vane, 12 Wend. R. 78, and eases there cited.) But this question and all the authorities bearing upon it have been fully examined in Robb v. Hackley (23 Wend. 50), where it is decided, in a very learned opinion delivered by Bronson, J., that such evidence is not admissible. This lasl cited case was approved and followed in Dudley v. Bolles (24 Wend. 465, 472), and the law on this point must now be regarded as well settled by these later decisions. A careful reading of the case of The People v. Vane shows that the question did not necessarily arise in that case, and the dictum of the court on this point must now be regarded as overruled. In England, as well as in this country, it is believed such evidence is no longer admissible. (The King v. Parker, 3 Doug. 242; Bull. N. P. 294; 1 Starkie Ev. 148; 1 Phil. Ev. 107, 307, note; 1 Starkie Ev. 149, note; 1 Cow. and Hill’s notes, 776.) The exceptions to the rule, as now established in this state, are when the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, in which case it is said it may be shown that he made similar declarations at a time when the imputed motive did not exist: and where there is evidence in contradiction, tending to show that the account of the transaction-given by the witness is a fabrication of a late date, it is said it may be shown that the same account was given by him before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen. (Rolb v. Hackley, 23 Wend. 50.) But neither of these exceptions are applicable to the case under consideration. The evidence in this case was received only for the purpose of answering the doubts attempted to be thrown by the cross-examination upon the testimony of Terhune. But it was not admissible for that purpose. It stood upon the same footing as if it had been offered to support the witness after other witnesses had been called to contradict him. What Terhune had previously said was mere hearsay, and could add nothing to the weight of his testimony. The court below erred therefore in receiving the evidence.

The next alleged ground of error is, that the court permitted the counsel for the people to urge before the jury, that they might infer, from the prisoner’s omission to prove a good character, that his character was bad. This was permitted by the court for ‘■he reason that the counsel for the prisoner, in opening the defence, had stated that he had known the prisoner from his youth, and knew him to be a man of fair character It is supposed that the refusal of the court to restrain the counsel for the people in his argument, within what was suggested by the defendant’s counsel as the true limit, will bring this case within the decision in The People v. White (24 Wend. 520). In that case the, judge in his charge, after alluding to the benefit of good character to the accused in a doubtful case, called the attention of the jury to the absence of such proof in the case before them, and it was held erroneous and ground for a new trial. But although it may be error so to charge, it is not for the counsel so to argue, or for the court to permit such argument. The limits within which counsel are to be restrained is a matter of discretion, and an exercise of that discretion can not be reached and corrected by an exception. The prisoner’s counsel should have submitted to the court a request to charge in regard to the presumption claimed to arise from the omission .to prove good character, and to such charge, or to the refusal to charge, an exception could have been taken. An exception is available for the purpose of correcting an error in the admission or rejection of evidence, in granting or refusing a nonsuit, in charging or refusing to charge the jury on a specific proposition, or in deciding any question on the trial affecting the merits. All these matters properly belong to the record as presented by a bill of exceptions. But all that relates to the manner of conducting the trial, to the forms of the questions asked, if not objectionable in substance, to the restricted or wide range allowed to counsel in their arguments, are matters of discretion in the court bbfore which the trial is had, and as to them, a remedy for a supposed error can not be had by an exception. The second exception is not therefore available.

The third point made by the defence is, that the court erred in charging that tne jury were the judges of the law and the fact, and that the only duty of' the court was advisory. This was erroneous. It is only on the trial of indictments for libel, that “ the jury have the right to determine the law and the fact” (Const. of New York, Art. 1, Sec. 8). In all other criminal prosecutions, as well as in all civil actions, it is the duty of the court to decide the questions of law and of the jury to decide the questions of fact. (Carpenter v. The People, 8 Barb. S. C. R. 603; Cow. & Hill's Notes to Phil. Ev. 1501; Barb. Cr. L. 2d ed. 353; 2 Sumner R. 240, 243 ; 2 Blackf. 156, Addis. R. 156.) In 2 Sumner, 240, Story, J., said, it had been the opinion of his whole professional life, that the jury are no more judges of the law, in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case tried upon the general issue. He said that, in each case, they had the physical power, but not the moral right, to decide the law according to their own notions or pleasure. That it is the duty of the court to instruct them as to the law, and of the jury to follow such instruction. That if the jury were to decide, it would render the law uncertain: it would be almost impracticable to learn what they did decide; the court would have no right to review their decisions, and every person has a right to be tried according to the fixed laws of the land. .

A wrong impression on this point has prevailed to some extent in the community, and it is time it was corrected. The doctrine that the jury are to decide the law in criminal cases, with the single exception made by our state constitution, can not be supported either upon principle or by authority.

The proceedings in the court below must be reversed, and a new trial awarded in the Albany mayor’s court.