In re Thomas Kaine an Alleged Fugitive from Great Britain/Separate Curtis

by Benjamin Robbins Curtis

United States Supreme Court

55 U.S. 103

In re Thomas Kaine an Alleged Fugitive from Great Britain

Mr. Justice CURTIS.

To state intelligibly the grounds on which I rest my judgment in this case, it is necessary to advert to the proceedings by means of which it comes before us.

On the 14th day of June, 1852, a complaint, on oath, was presented to Joseph Bridgham, Esq., one of the commissioners to take affidavits, &c., appointed by the Circuit Court of the United States, in the Southern District of New York, charging, that Thomas Kaine, in that part of the dominions of Her Britannic Majesty, called Ireland, had feloniously assaulted one John Balfe, and inflicted upon him a wound with a pistol, with intent to murder him; that a warrant to arrest Kaine, for this felony, was issued by a justice of the peace, duly authorized for this purpose, but Kaine having fled from justice, took refuge in the United States, and was then in the Southern District of New York; and the complainant, who describes himself as the Consul of Her Britannic Majesty in New York, prays that a warrant may be issued to apprehend Kaine, to the end that such proceedings may take place for his surrender to the authorities of Great Britain, as are required by the treaty between the United States and Great Britain, and the act of Congress, passed to carry that treaty into effect.

A warrant did issue, Kaine was arrested, and a hearing took place, the result of which was, that the Commissioner ordered Kaine to be committed, pursuant to the treaty, to abide the order of the President of the United States, in the premises.

In this stage of the proceedings, a writ of habeas corpus was issued by the Circuit Court of the United States, for the Southern District of New York. Kaine was brought before that court, in which the District Judge then presided, and after a hearing, upon all the objections raised by the Prisoner, the writ of habeas corpus was dismissed, and Kaine was remanded and continued in the custody of the marshal, under his arrest and commitment by the process of the Commissioner. On the 22d day of July, 1852, Kaine presented to Mr. Justice Nelson, at chambers, a petition addressed to the Justices of the Supreme Court of the United States, in which he sets forth, that he is detained in custody by an order made by Judge Betts, on the 9th day of July, 1852, that his detention is illegal, and praying for a writ of habeas corpus to inquire into the cause of his commitment.

Upon this petition, Mr. Justice Nelson made an order, under which a writ issued, which is as follows:

{Seal of the Circuit Court of the Southern District of New York.}

The President of the United States of America, to the United States Marshal for the Southern District of the State of New York, or to any other person, or persons, having the custody of Thomas Kaine, greeting:--

We command you, that you have the body of Thomas Kaine, by you imprisoned and detained, as it is said, together with the cause of such imprisonment and detention, by whatsoever name the said Kaine may be called or charged, before our Justices of our Supreme Court of the United States, at his chambers, in Cooperstown, New York, on the 11th day of August, instant, to do and receive what shall then and there be considered, concerning the said Thomas Kaine.

Witness, SAMUEL NELSON, Esq., one of our Justices of our said Court, this third day of July, eighteen hundred and fifty-two.

RICHARD BUSTEED, Attorney for petitioner.

Upon the return of the marshal to this writ, a hearing was had, which resulted in the following order, made by Mr. Justice Nelson:

COOPERSTOWN, August 11, 1852. At Chambers.

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

S. NELSON.

These are the proceedings which have brought this case here, and the first question which arises is, whether, under these proceedings, we have any power to act?

In my opinion, we have not. Passing over the question, whether the court itself could rightfully issue a writ of habeas corpus upon the case made before Mr. Justice Nelson, which I shall consider hereafter, I think a Judge of the Court in vacation, at his chambers, has no power to grant a writ of habeas corpus out of this court, or to make such a writ returnable before himself, and then adjourn it into term; and, that if he had such power, it has not been exerted in this case, the writ actually issued not being a writ out of this court, or upon which, as process, this court can take any action.

It is not to be doubted, that whatever jurisdiction belongs to the Supreme Court, under any writ of habeas corpus ad subjiciendum, is appellate. It is equally clear that no part of the appellate jurisdiction of this court can be exercised by a single Judge, at his chambers. It is also well settled, that the question, whether such a writ of habeas corpus shall issue from this court, is one upon which the court ought to pass, before the writ issues; the allowance of the writ being an exercise of its limited appellate jurisdiction, which only the court itself has the power to exert. Ex parte Milburn, 9 Peters, 704.

From these premises it also follows, that if such a writ be issued from this court, it cannot be made returnable before a Judge, at chambers, for the reason, that he cannot there exercise any appellate power under it. And, finally, this writ does not bear the seal of the Supreme Court, is not tested by the Chief Justice, or signed by the clerk, as is required by the act of Congress, (1 Stat. at Large, 93,) but bears the seal of the Circuit Court of the Southern District of New York, is tested by Mr. Justice Nelson, is not signed by any clerk, and therefore cannot be considered process issuing out of this court, or upon which we can take jurisdiction.

I concur with my brethern in the opinion, that under this writ the court can pass no order whatever.

It remains to consider the application made by the counsel of Kaine, to have another writ of habeas corpus allowed by this court.

The first question is, whether we have jurisdiction to act under the writ, if allowed in the case shown by the petitioner. There are some principles, bearing on this question, which are settled. That this court has no original jurisdiction to issue a writ of habeas corpus ad subjiciendum, and can grant such a writ only in the exercise of its appellate jurisdiction, and consequently, by means of it, can revise only the proceedings of those tribunals over which, and in respect to which, it has an appellate control, have been so repeatedly and uniformly decided here, that they must be considered as finally settled. Marbury v. Madison, 1 Cr. 175; Ex parte Bollman, 4 Cr. 100, 101; Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Peters, 193, S.C.. 7 Peters, 568; Cohens v. State of Virginia, 6 Wheat. 264; Osborn v. Bank of the United States, 9 Wheat. 738; Ex parte Madraza, 7 Peters, 627; Ex parte Barry, 2 Howard, 65. That no such control, by means of an appeal, writ of error, or other proceeding, can be exercised by this court over a Commissioner, acting under the authority of an act of Congress, or under color of such an authority, and that this court has no power in any way to revise his proceedings, I consider equally clear. In Ex parte Metzger, (5 Howard, 176,) it was determined that a writ of habeas corpus could not be allowed, to examine a commitment by a District Judge, at chambers, under the treaty between the United States and France, for the reason that the Judge, in ordering the commitment, exercised a special authority, and the law had made no provision for the revision of his judgment. The same reason applies to the action of this Commissioner. Not only has the law made no provision for the revision of his acts by this court, but, strictly speaking, he does not exercise any part of the judicial power of the United States. That power can be exerted only by Judges, appointed by the President, with the consent of the Senate, holding their offices during good behavior, and receiving fixed salaries. (Constitution, art. 3, sec. 1.) The language of Mr. Chief Justice Taney, in United States v. Ferreira, (13 Howard, 48,) in speaking of the powers exercised by a District Judge, and the Secretary of the Treasury, under the treaty with Spain, of 1819, describes correctly, the nature of the authority of such a Commissioner as acted in the case before us. 'The powers conferred by Congress upon the Judge, as well as the Secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them. But it is not judicial, in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.'

Since, then, the Commissioner did not, in this case, exercise any part of the judicial power of the United States, and no mode has been provided by law to transfer the case on which he acted into any court of the United States, and thus bring that case under the judicial power, this court can have no appellate control over it; because its appellate power cannot extend beyond the action of the inferior courts, established by Congress to take original jurisdiction under the Constitution, and which exercise judicial power therein conferred. As it is plain, then, that to revise the proceedings of the Commissioner by a writ of habeas corpus, would be an exercise of original, and not of appellate jurisdiction, the inquiry recurs whether we can grant the writ for the purpose of revising the decision of the Circuit Court, made upon the writ of habeas corpus issued by that court.

This court has appellate power only in the cases provided for by Congress. United States v. Moore, 3 Cr. 159; Durousseau v. United States, 6 Cr. 307.

We must therefore find, in some act of Congress, power to review the decision of a circuit court simply remanding a prisoner on a writ of habeas corpus; otherwise this writ cannot be allowed. The only grant of power, supposed to be applicable to such a case, is contained in the fourteenth section of the Judiciary Act, (1 Stat. at Large, 81,) which authorizes this court to issue writs of habeas corpus; and the question is, whether a grant of power to issue a writ of habeas corpus 'to examine into the cause of commitment,' is a grant of power to review this particular decision of the Circuit Court.

As the only jurisdiction conferred arises from the authority to issue the writ, and the consequent authority to proceed under it, the exigency of the writ must necessarily limit the jurisdiction. So far as the subject-matter involved in this writ extends. the jurisdiction exists, and no further.

That subject-matter is 'the cause of the commitment.' So that we must ascertain whether the decision of the Circuit Court is the cause of the commitment. If it is, we have jurisdiction to inquire into it; if it is not, then that decision is not within the exigency of this writ, forms no part of its subject-matter, and is not within our appellate control.

To determine whether the decision of the Circuit Court is the cause of the Commitment in this case, it is necessary to have distinctly before us the precise acts which have been done, and then to consider their legal effect.

On the 29th day of June, 1852, the Commissioner, after the previous proceedings which have been mentioned, made the following warrant to the Marshal of the Southern District of New York:

UNITED STATES OF AMERICA,

Southern District of New York, ss.

In the matter of Thomas Kaine.

This case having been heard before me, on requisition, through Anthony Barclay, Esquire, Her Britannic Majesty's Consul at the Port of New York, that the said Kaine be committed for the purpose of being delivered up as a fugitive from justice, pursuant to the provisions of the treaty made between the United States and Great Britain, August 9th, 1842, I find and adjudge that the evidence produced against the said Kaine, is insufficient in law to justify his commitment on the charge of assault with intent to commit murder, had the crime been committed within the United States. Wherefore, I order that the said Thomas Kaine be committed, pursuant to the provisions of the said treaty, to abide the order of the President of the United States in the premises.

Given under my hand and seal, at the city of New York, this 29th day of June, 1852.

(Signed,) JOSEPH BRIDGHAM. [L. S.] United States Commissioner for the Southern District of New York.

Directed to the Marshal of the Southern District of New York.

Under this warrant Kaine was held by the marshal, at the time the writ of habeas corpus was issued by the Circuit Court; and upon the return of that writ, several questions of law were raised and argued, touching the jurisdiction of the Commissioner, and the regularity and validity of his proceedings; and on the 9th day of July, 1852, the Circuit Court gave its decision, to the effect that the Commissioner had jurisdiction, and had proceeded regularly, and concluded by passing the following order:

'The court accordingly adjudges that the commitment and imprisonment of the prisoner for the causes in the return to the habeas corpus in the case set forth, are sufficient cause and warrant in law for his detention by the marshal.

'Therefore, it is ordered by the court, that the writ of habeas corpus allowed in this case be dismissed, and that the prisoner be remanded and continued in the custody of the marshal, under such his arrest and commitment by the aforesaid process.'

Is this order 'the cause of the commitment' of Kaine within the meaning of a writ of habeas corpus? With the utmost respect for the opinions of those of my brethren who have so considered it, I cannot come to that conclusion. It seems to me, that it is not the cause of the commitment, either in substance or in form.

In substance, it is merely a refusal to discharge the prisoner from an existing commitment, because the cause of that existing commitment is found sufficient in law. It creates no new cause; it simply declares the existing cause to be sufficient. It makes no new commitment, and issues no new process as an instrument for it, but only pronounces the old process valid, and consequently the continuance of the commitment under it legal. The custody was at no time changed. Certainly, when a prisoner is brought into court upon the return of a habeas corpus ad subjiciendum, he is then in the power and under the control of the court; but until the court makes some order changing the custody, it remains. The court may, in some cases, admit to bail, and may also take order for the future production of the prisoner, without bail; but in all cases, until the court makes some order changing the custody, either for the care or security of the prisoner, or founded on the illegality of his commitment, the original custody continues. In this case, no such order was made.

If, then, this order of the Circuit Court created no new cause of commitment, made no new commitment, and only pronounced the existing cause sufficient, and the existing custody lawful, I cannot perceive how that order can, in substance, be treated as the cause of the commitment of Kaine.

Nor, in my apprehension, is it so, even in form. In form, the court first adjudges that the causes set forth in the return, are sufficient, and, 'therefore, it is ordered, by the court, that the writ of habeas corpus allowed in this case, be dismissed, and that the prisoner be remanded, and continued in the custody of the marshal, under such his arrest and commitment by the aforesaid process.'

This clearly expresses, in words, precisely what would be the legal effect of dismissing the writ of habeas corpus, without those words. And I do not perceive how it can be more plainly expressed than by the language of this order, that the process of the Commissioner, being found sufficient, the commitment by that process is not interfered with.

It is true, the order contained the word, remanded, but in the context, where it stands, it means only that the command of the writ is no longer operative, and that the court would exercise no further control over the body of the prisoner, and not that, being out of the custody of the marshal, he is recommitted to him anew, for the words are 'remanded and continued in the custody of the marshal, under such his arrest and commitment by the aforesaid process.'

In point of form, the same order would have been passed if it had been found by the Circuit Court, on the return of the writ, that the prisoner was not held under, or by color of the authority of the United States, and therefore that, under the Judiciary Act, the court had no power to relieve him by habeas corpus. It could not be contended that, after such an order, the prisoner was confined by order of the Circuit Court, and that its order was the cause of his commitment, yet in such a case the writ must have been dismissed, and the prisoner remanded.

But whatever literal interpretation might be put upon the precise words employed in the order, I should be unable to find 'the cause of the commitment' in an act of the court dismissing a writ of habeas corpus, because the cause of the commitment shown by the return is found sufficient. The cause of the commitment is to be looked for in the warrant under which it began, and has been continued, and not in the decision of a court pronouncing that warrant ralid.

I have thus far considered this question of jurisdiction upon those principles which seem to me applicable to it. It remains to examine the former decisions of this court, to ascertain whether the question is determined by authority.

There are two cases which have been chiefly relied on at the bar. The first is Ex parte Burford, 3 Cr. 448. As this case has many facts in common with the case at bar, it is necessary carefully to examine it. Without detailing the preliminary proceedings, it will be sufficient to say, that Burford was committed to the jail of the county of Washington, in the District of Columbia, by a warrant of certain justices of the peace, which was defective, because it did not state 'some good cause certain, supported by oath.' That he was brought before the Circuit Court for the District of Columbia, upon a writ of habeas corpus, and, after a hearing, that court passed the following order, which, as it is not given in the report of the case by Judge Cranch, and as its terms seem to me to be important, I have procured from the original record in this court.

'January 8th, 1806. John A. Burford was brought into court by the Marshal of the District of Columbia, agreeably to the habeas corpus issued by this court, on the 4th instant, with the cause of his commitment annexed thereto, (which habeas corpus and cause of commitment are hereunto annexed,) whereupon, all and singular the premises being heard, and by the court have been fully understood, the court order, that the said John A. Burford, enter into a recognizance, himself in $1,000, and one or more sureties in the like sum, for his good behavior for one year from this day, and that he be remanded to jail, there to remain until such recognizance be entered into.'

This case is relied upon as a decision to show, that although this court cannot, as was held in Metzger's case, issue a writ of habeas corpus to examine the validity of the warrant of the Commissioner; yet, if the Circuit Court has, by such a writ, examined its validity, pronounced it valid, and therefore dismissed the writ, and ordered the prisoner to be continued in the custody of the marshal, this court may, upon a writ of habeas corpus, examine that decision, and reverse it, if found erroneous

Before considering whether the decision in Burford's case, goes this length, I think it consistent with the profoundest respect for the very eminent judges who sat in that case, to say, that it does not appear that the question now made, was by them examined and considered, or that they themselves would have deemed it foreclosed by that decision. Indeed, that they would not have so considered, seems to me from the fact that, at the term of the court following this decision, when a writ of habeas corpus was moved for, to bring up the body of James Alexander, Marshall, C. J., said:-'The whole subject will be taken up de novo, without reference to precedents. It is the wish of this court to have the motion made in a more solemn manner to-morrow, when you may come prepared to take up the whole ground.' 4 Cr. 75, note. Further proceedings upon this motion became unnecessary, in consequence of the discharge of the prisoner by another tribunal; but a few days after, upon motions in behalf of Bollman and Swartwout, committed by the Circuit Court under a charge of treason, the court proceeded to hear arguments upon its jurisdiction to issue the writs, and in an elaborate judgment affirmed the jurisdiction to examine a cause of commitment by the Circuit Court. I cannot doubt, therefore, that if at that time the further question had arisen whether the court had also jurisdiction to examine a cause of commitment by a Commissioner, after the Circuit Court had reviewed that cause, and pronounced it sufficient, the court would have thought it necessary to consider that question also de novo, upon all its grounds, and would not have treated Burford's case as a sufficient basis on which to rest their decision. But, as I understand Burford's case, it is clearly distinguishable from the case at bar. The Circuit Court, in that case, did not dismiss the writ of habeas corpus; they made an order under it, to imprison Burford. That order was, that he be remanded to jail, there to remain until he should enter into a recognizance, with surety, in the sum of $1000, for his good behavior for one year. This order was the cause of commitment, and under this order he was held when the writ of habeas corpus issued from this court. It necessarily superseded the order made by the justices of the peace, which was, that Burford should be imprisoned until he should recognize in the sum of $4000, with surety, to be of good behavior indefinitely.

It is true the Circuit Court did not proceed de novo, and that for this reason their order was held invalid. But the question of jurisdiction did not depend upon the validity of the order, or the causes of its invalidity, but simply upon the fact that the Circuit Court caused the commitment; and when it issued an order, complete in itself, that Burford should be imprisoned, and by that order superseded the former order of the Justices, the Circuit Court did an act which caused his commitment, and this court might inquire, by a writ of habeas corpus, into its validity. The distinction between such a case, and one where the Circuit Court merely dismissed the writ of habeas corpus, is to my mind clear.

And it must be observed that the question now is, not whether this court treated the act of the Circuit Court as the cause of commitment. I have no doubt they did so treat it, and it seems to have been so considered in subsequent cases. In Ex parte Watkins, (7 Peters, 573,) Mr. Justice Story, in reviewing the cases on the subject of habeas corpus, says:-'In Ex parte Burford, the prisoner was in custody under a commitment by the Circuit Court, for want of giving a recognizance for his good behavior, as awarded by the court.' So in Metzger's case, (5 How. 189,) Mr. Justice McLean says:-'Ex parte Burford was a habeas corpus, on which the prisoner, who had been committed by the Circuit Court in this district, was discharged, there being no sufficient cause for the commitment.'

It is undoubtedly true, that the imprisonment of Burford was considered to be under a commitment by the Circuit Court, and the case is an authority to prove that when a writ of habeas corpus is returned in the Circuit Court, and that court makes an order imprisoning the party, this court may review that order. But it is not, in my judgment, an authority to show that the Circuit Court of the Southern District of New York did make an order imprisoning Kaine. In Burford's case, the court did not dismiss the writ, nor refuse to discharge the prisoner from the commitment by the Justices, but made an order which constituted a new cause of commitment, and superseded the existing cause. In Kaine's case, the Circuit Court held the existing cause to be sufficient, and refused to interfere with it. In my judgment, these cases are not parallel.

Nor do I consider the case Ex parte Watkins, (7 Pet. 572,) to be an authority that jurisdiction exists in this case. It is only necessary to quote a single passage, from the opinion of the court, to show that it cannot aid in solving the question which I am now considering. 'The award of the capias ad satisfaciendum, must be considered as the act of the Circuit Court, it being judicial process issuing under the authority of the court. The party is in custody under that process. He is then in custody in contemplation of law, under the award of process by the court.'

It is upon this ground the decision is rested, and I can find nothing in it tending to show that in the case at bar the act of the Circuit Court is the cause of Commitment.

I shall not particularly examine the other decisions of this court, which are still more remote from the case at bar.

My opinion is, that the cause of commitment of Kaine is not the act of the Circuit Court, but of the Commissioner, and for this reason the writ must be refused.

But there is another ground, on which this refusal may be rested. The decision of the Circuit Court was made on the 9th day of July. On the 17th day of July, a warrant was issued from the Department of State, which was in the following words:

DEPARTMENT OF STATE, Washington, July 17th, 1852.

,To all whom these presents shall come, greeting:--

Whereas, John F. Crampton, Envoy Extraordinary and Minister Plenipotentiary to Her Majesty the Queen of Great Britain and Ireland, hath made requisition, in conformity with the 10th article of the treaty between the United States and Great Britain, for the mutual surrender of fugitive criminals, concluded at Washington, the 9th day of August, 1842, for the delivery up to justice of Thomas Kaine, charged with the crime of assault with an intent to commit murder, in the county of Westmeath, Ireland.

And whereas, the said Thomas Kaine hath been found in the State of New York, within the jurisdiction of the United States, and has, by proper affidavit, and in due form, been brought before Joseph Bridgham, a Commissioner duly appointed by the United States Circuit Court for the Southern District of New York, in the second circuit, for examination of said charge of assault with intent to commit murder. And whereas, the said Commissioner hath deemed the evidence sufficient to authorize the commitment of said Thomas Kaine, and has, accordingly, committed him. All of which appears by a copy of the proceedings transmitted to this department.

Now, these presents are to require of the United States Marshal for the Southern District of New York, or of any other public officer or person having charge or custody of said Thomas Kaine, to surrender and deliver him up to Anthony Barclay, Her Britannic Majesty's Consul at the Port of New York, or to any other person or persons duly authorized to receive said fugitive, and conduct him to Great Britain for trial.

In testimony whereof, I have hereunto signed my name, and caused the seal of this Department to be affixed, at Washington, this 17th day of July, A. D. 1852, and of the independence of the United States the seventy-seventh.

[SEAL.] Signed, W. HUNTER, Acting Secretary of State.

Upon its face, this warrant is perfectly regular. Its recitals set forth every fact necessary to warrant the act of extradition, according to the treaty and the act of Congress. It appears, by the return of the marshal upon the writ issued by Mr. Justice Nelson, that before he received that writ, this warrant had come to his hands, and he had, in obedience to it, tendered Kaine to Anthony Barclay, who expressed his readiness to receive him; and while arrangements were about to be made to put Kaine on shipboard, the writ of habeas corpus, issued by Mr. Justice Nelson, suspended the further execution of the warrant of extradition.

This warrant of extradition is the final process under the treaty and act of Congress. When it comes to the hands of the marshal, he holds the prisoner for the purpose of executing it. Upon this process, therefore, Kaine is now held.

The act of Congress requires the Judge, or Commissioner, to certify to the Secretary of State his finding, together with a copy of all the testimony taken before him, that a warrant may issue upon the requisition of the proper authorities of the foreign government for the surrender of the fugitive, according to the stipulations of the treaty. Such a warrant having issued, and its validity not having been considered by any court of original jurisdiction, in my judgment it is not the exercise of an appellate power to examine its validity by a writ of habeas corpus. It may be true that, if the proceedings before the Commissioner were to be held void, this warrant must also be invalid. But the question is not, whether this warrant is valid, but whether we have jurisdiction to examine its validity. It may also be true that, if this warrant were final process, issued by the Circuit Court, and we had power to examine the legality of a judgment or order of that court, pursuant to which it issued, we should also have jurisdiction upon a habeas corpus, to examine the validity of such a warrant, and of the proceedings of executive officers under it. But this warrant did not emanate from the Circuit Court, nor does it depend, in any way, upon its authority, nor is it a legal consequence of the action of the Circuit Court on the writ of habeas corpus, or in any other proceeding. It emanates from a department of the executive, which rests its action upon the proceedings of the Commissioner, and over neither can this court have, under the Constitution, nor has it under the laws, any appellate jurisdiction or control. Marbury v. Madison, 1 Cr. 137.

For the reason, then, that if a writ of habeas corpus were allowed in this case, the validity of the warrant of extradition could not be examined here, I think the writ should be refused.

In considering the question, whether the Supreme Court of the United States has jurisdiction, under the Constitution and laws of the United States, to entertain this application, I have not felt at liberty to allow my judgment to be pressed upon by the great value of the particular writ applied for, or the propriety and expediency of a power in this court to review the judgments of the Circuit Courts, in cases affecting the liberty of the citizen. To all that has been said concerning the preeminent utility of the writ of habeas corpus, I readily assent. But it must be remembered, that the real question here is not, whether this great writ shall be freely and efficiently used, but whether our appellate power is large enough to extend to this case. The Circuit Court has power, upon its own views of the law, to inflict, not only imprisonment, but even the punishment of death, without appellate control by this court. Even when it is alleged, that the proceedings of a circuit court, by which a citizen is imprisoned, are coram non judice and void, its judgment is final, and no relief can be had here, by writ of error or appeal, or by habeas corpus. Ex parte Watkins, 3 Pet. 193; Ex parte Kearney, 7 Wheat. 38.

Undoubtedly, it would be competent for Congress to do, in cases like this, what it has done in a class of cases somewhat analogous. By the act of August 29, 1842, (5 Stat. at Large, 539,) when the subject of a foreign government is imprisoned for an act done under the authority of that government, and a writ of habeas corpus is issued by a Judge of this court, or by a District Judge, an appeal to the Circuit Court, and from its order to this court, is expressly given.

It is for Congress to determine, whether this class of cases requires the same privileges. Until it so determines, I must give my decision upon our jurisdiction, as, according to my judgment, it exists, unaffected by the consideration, that it might be expedient to enlarge it. My opinion is that, if the writ prayed for were issued, we should not have jurisdiction to inquire into the cause of commitment shown by the petition, and consequently the writ should be refused. I give no opinion upon the sufficiency of the cause of the commitment, not deeming it to be judicially before us.