Samuel Nelson

“ The terms 'other magistrates of the two governments,' are quite indefinite and difficult in their application by judicial construction. In an enlarged sense, they might embrace all the United States Commissioners appointed by the Circuit Court, who, under the act of Congress of the 23d of August, 1842, are authorized to arrest persons for crimes against the United States, and imprison or bail the same; and, also, all the justices of the peace of the several States, upon whom like power is conferred by the 33d section of the Judiciary Act of 1789. ”

“ To permit the copies as evidence, without proof of the jurisdiction of the magistrate, would be against all principle, and might lead to the most scandalous abuses in carrying into execution the stipulations of the treaty. This species of evidence is very differently guarded, in the act 6th and 7th Victoria. There, copies of the depositions laid before the government, and upon which the proper officer issued his warrant to the magistrates, authorizing them to institute proceedings to arrest and commit the fugitive, are those only permitted to be given in evidence. ”

“ When the casus foederis occurs, the requisition or demand must be made by the one nation upon the other. And upon our system of government, a demand upon the nation must be made upon the President, who has charge of all its foreign relations, and with whom only foreign governments are authorized, or even permitted, to hold any communication of a national concern. He alone is authorized, by the Constitution, to negotiate with foreign governments, and enter into treaty obligations binding upon the nation ”

“ It does great injustice to both nations. The proceedings, consequent upon it, compromit the character and dignity of the one making the demand, and are disrespectful to the other, and may be dangerous to the liberty of the citizen. The record before us shows, that a requisition, with due solemnity, was made upon the Commissioner, in this case, by Her Britannic Majesty's government, through her Consul, and seems to imply, that the magistrate is to act under the power and authority of that government, rather than in obedience to the laws of his own ”

“ The construction, against which I am contending, would refer the execution of the treaty to the subordinate and inferior agents of both governments, so far as the surrender of the fugitive, on our part, is concerned; for, as I understand that construction, any subordinate officer of Great Britain may make the requisition directly upon the magistrate, for the apprehension and committal; and, upon such commitment being communicated to the government, the Secretary of State issues his warrant that the prisoner be delivered to the British authorities. ”

“ If a contrary principle can be found in the law, it is a little remarkable that the rule should ever have obtained that, in an action founded upon the adjudication or decision of a magistrate, or any other officer of special and limited jurisdiction, the party claiming a right under it, must aver and prove jurisdiction in the particular case, for the very adjudication, or decision, would afford all the necessary evidence of the officer acting as such within the principle contended for. ”

“ The right of the citizen to appeal to the court for the benefit of this great writ, in case of an illegal restraint of his liberty, ought not to be restricted to the time of its sitting; but, as in all other cases where its jurisdiction may be exercised, provision should be made for instituting the proceeding in vacation. The prisoner has now presented to this court a petition, praying for a writ of habeas corpus to be directed to the marshal, that he may be brought up, together with the ground of his commitment ”

“ The rule of the court adds nothing to the argument in favor of the power, as that depends upon the act of Congress which provides for carrying the treaty into effect, and which confers the power only upon Commissioners, specially appointed by the Federal courts for this purpose. ”

“ This writ has always been justly regarded as the stable bulwark of civil liberty; and undoubtedly, in the hands of a firm and independent judiciary, no person, be he citizen or alien, can be subjected to illegal restraint, or be deprived of his liberty, except according to the law of the land. ”

“ Judge Marshall, in his celebrated argument in the case of Jonathan Robbins, who was demanded by Great Britain, under the treaty of 1795, and from which this part of the treaty of 1842, was taken almost verbatim, speaking of the requisition in that case, observes: 'That the case was, in its nature, a national demand, made upon the nation. The parties were the two nations. They cannot come into court to litigate their claims, nor can a court decide on them. ”

“ And the rule is universal, that in the case of magistrates, or other persons of limited or special jurisdiction, any party setting up a right or title under, and by virtue of, their acts or proceedings, must first show affirmatively that they possessed jurisdiction or authority to act in the matter. The jurisdiction is never presumed. These are principles too familiar to require a reference to authorities. It was proved, in this case, that the person taking the depositions in Ireland, and issuing the warrant, acted as a justice of the peace ”

“ It is a compact between the two nations in respect to a matter of national concern-the punishment of criminal offenders against their laws and where the guilty party could be tried and punished only within the jurisdiction whose laws have been violated. The duty or obligation entered into, is the duty or obligation of the respective nations, and each is bound to see that it is fulfilled, and each is responsible to the other in case of a violation. ”

“ The surrender is founded upon an alleged crime, and the judiciary is the the appropriate tribunal to enquire into the charge. It has also been urged that great inconvenience may exist in the pursuit and apprehension of fugitives upon the construction contended for, in consequence of the extended frontier line between the two countries, as much time will be consumed in making the requisition upon the President. ”

“ They admit of but one construction.' If this construction of the section is to be maintained, (and the case Ex parte Bollman and Swartwout was very fully and deliberately considered,) then it is manifest the power to issue this great writ for the security of the liberty of the citizen, is much broader than has been contended for on behalf of the prisoner in the case before us. ”