Melville Fuller

“ He must look into the indictment to ascertain whether an offense against the United States is charged, find whether there was probable cause, and determine whether the court to which the accused is sought to be removed has jurisdiction of the same. 'The liberty of the citizen, and his general right to be tried in a tribunal or forum of his domicil, imposes upon the judge the duty of considering and passing upon those questions.' Mr. Justice Jackson, then Circuit Judge, Re Greene, 52 Fed. ”

“ It is contended that that evidence was immaterial, and, if admitted, could not have affected the decision of either the district or circuit judge. Of course, if the indictment were conclusive, any evidence might be said to be immaterial; but if the indictment were only prima facie, then evidence tending to show that no offense triable in the middle district of Tennessee had been committed by defendant in that district could not be regarded as immaterial.
The Constitution provides that 'the trial of all crimes, except in cases of impeachment, shall be by jury ”

“ Rep. 218, Greene was indicted in the district court of the United States for the southern district of Georgia. He was arrested and taken before a commissioner in the state of New York. The commissioner held that the certified copy of the indictment was conclusive evidence of probable cause, and refused to hear any evidence on the part of the defendant; and thereupon application was made to the district judge of the southern district of New York for an order of removal. That judge held that the commissioner should have heard evidence, and remanded the case. ”