Before the Hon. CHARLES A. INGERSOLL, District Judge.

IN THE MATTER OF ALEXANDER HEILBRonn.

HABEAS CORPUS.-FUGITIVE FROM JUSTICE.

Under the treaty between Great Britain and the United States, of 1842, for the reciprocal rendition of fugitive criminals, the Act of Congress, passed August 12th, 1845, and the opinion in the case of Kane, 14 Howard, 145. Held, that the requisition had been properly made through the executive of the United States.

That the documentary evidence, before the United States' Commissioner, of the prisoner having committed the offence charged, was sufficient both in form and substance to warrant the Commissioner's commitment of the fugitive for extradition.

The facts sufficiently appear from the opinion.

J. R. Whiting, for the British Government.

R. Busteed, for the fugitive.

INGERSOLL, D. J.-The relator, Alexander Heilbronn, makes his petition to this Court, in which petition he alleges that he is imprisoned and restrained of his liberty by the Marshal of the United States, of the Southern District of New York; and that he is not committed or detained by reason of any process issued by any Court of the United States, or by any judge thereof, or 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. But that the reason of such restraint and imprisonment, according to his best knowledge and belief, is, that John W. Nelson, Esq., upon the 6th day of January, A. D. 1854, issued a warrant of commitment against the relator, as an alleged fugitive from justice from Great Britain, after the hearing by said Nelson of the evidence adduced in support of the charge made against the relator.

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And in that petition he further alleges that the said warrant was without color of law, and that there was no evidence before said Nelson that the relator had committed any crime, and for these reasons, and for these reasons only, he prays in that petition that a. writ of habeas corpus may issue, directed to the said Marshal, commanding him to have the body of the relator before this court, that he may be discharged from such imprisonment, so alleged to be made without color of law.

The first question that presents itself is, what right has this court to nterfere upon the facts set forth in the petition, and taking it for granted that all the allegations therein set forth are true? Neither the courts of the United States, nor the judges thereof, can interfere by way of habeas corpus in all cases of illegal imprisonment; of imprisonment made without any color of law. They can interfere only in certain specified cases; in cases specified by some particular act of Congress, and where the unlawful imprisonment is under some color of law, and not where it is without any color of law. And if the party who presents his petition does not bring himself within the description of some one of the specified cases provided for by some one of the acts of Congress, which authorise the issuing of the writ of habeas corpus, then no court of the United States or judge thereof, can interpose and grant the relief sought.

The power granted to the courts of the United States and the judges thereof, to interfere in cases of unlawful imprisonment, and to issue a habeas corpus, is contained in the Judiciary Act of 1789, where it is provided that "all the courts of the United States may issue writs of scire facias habeas corpus, and all other writs not specially provided for by the Statute, which may be necessary for the exercise of their respective jurisdiction, and agreeable to the principles and usages of law. And either of the judges of the Supreme Court, as well as judges of the District Courts, may grant writs of habeas corpus for the purpose of inquiry into the cause of commitment; but writs of habeas corpus shall in no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." In order to justify a United States Court, or judge thereof, to discharge a prisoner on a habeas corpus, who is in jail, he must, by this provision of law, be" in custody under, or by color of the authority of the United States." And that must appear in the petition which is presented. It does not satisfactorily appear from the petition (though the fact is so) that the Relator is in custody by color of the authority of the United States. Indeed, the petition states that he is in custody, "without any color of law." And if this is so, he cannot be in custody under color of authority of the United States. The petition does not state that John W. Nelson was acting under any such color of authority. It merely states that he, as an individual, without color of law, issued the warrant of commitment. It does not state or show that the Marshal holds the Relator under any such color of authority. It merely states that he is imprisoned and restrained of his liberty by the Marshal, by virtue of the warrant issued by John W. Nelson, "without color of law." It might

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then be urged that the case, as presented by the petitioner, is not such a one as would authorize the court, by any law of the United States, to interfere, for the reason that it does not sufficiently show that the relator is unlawfully imprisoned, under or by color of the authority of the United States. But I do not feel inclined to dispose of the case on this ground, but to treat it as it is presented by the Marshal's return, and the evidence which has been taken, by which it appears that the Relator is "in custody under and by color of the authority of the United States."

The return of the Marshal to the writ of habaes corpus which issued, sets forth that he holds and detains in his custody the said relator, under, and by virtue of a commitment of John W. Nelson, Esq., a Commissioner duly appointed by the Circuit Court of the United States for the Southern District of New York, under and by virtue of an Act of Congress, entitled, "An Act for giving effect to certain treaty stipulations between this and foreign governments, for the apprehension and delivering up of certain offenders," approved August 12, 1848, which said commitment is dated the 6th day of January, 1854. And the Marshall appends to his said return a copy of said commitment.

The warrant of commitment issued by Commissioner Nelson, after reciting that on the 21st day of November, 1853, complaint on oath was made to him, he being a Commissioner duly appointed by the Circuit Court of the United States for the Southern District of New York, under and by virtue of an Act of Congress entitled, "An Act for the giving effect to certain treaty stipulations between this and foreign Governments, for the apprehension and delivering up of certain offenders," approved August 12, 1848, charging the relator with having committed, within the city of London, within the jurisdiction of the Government of Great Britain, the crime of forgery, by forging the name of Charles McIntosh & Co. upon the back of a bill of exchange, for the amount of forty-three pounds seven shillings and sixpence, dated the 2d day of July, 1853, drawn by and signed "For the Governor and Company of the Bank of Ireland-James Jackson, Cashier," and directed "To the Cashier of the Bank of England, London ;" and reciting also, that whereas a treaty for "the extradition of persons committing such crime existed between the Governments of the United States and Great Britain, and that the President of the United States, upon the claim by the Go vernment of Great Britain, for the extradition of the said relator, upon the charge aforesaid, in pursuance of the said treaty, did issue his warrant requiring all competent officers to investigate such charge; and that he, as such Commissioner, on the 21st day of November, did issue his warrant for the apprehension of the said relator upon the said complaint, and the evidence laid before him, to the end that the evidence of his criminality might be heard and considered; and reciting also, that the said relator was apprehended and brought before him, the said Commissioner, by virtue of his said warrant, and that he did hear and consider the evidence of his criminality upon said charge of forgery, and that upon such hearing he did adjudge and deem the evidence of the criminality of said relator, as charged, sufficient, under the provisions of

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said treaty to sustain the charge of forgery; did command the Marshal of the Southern District of New York to commit the said relator to the proper jail, there to remain until he should be surrendered, in pursuance of the said treaty, or be otherwise discharged by due course of law.

By the tenth article of the treaty of 1842, entered into by the United States and Great Britain, it is stipulated by the contracting parties, that they shall, upon mutual requisitions by them or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with certain crimes, (among which crimes is forgery,) and committed within the jurisdietion of either, shall seek an asylum and be found within the territories of the other; provided that this only shall be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed. And by that article of the treaty it was further stipulated and provided, that the respective Judges and Magistrates of the two Governments shall have power, jurisdiction and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive, or person so charged, that he may be brought before such Judge or other Magistrates respectively, to the end that the evidence of eriminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to maintain the charge, it shall be the duty of the examining Judge or Magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive.

By an act of Congress, approved August 12, 1848, and passed for the purpose of giving effect to certain treaty stipulations between this and foreign Governments, for the apprehension and delivering up of certain offenders, it is enacted, that in all cases in which there exists, or thereafter may exist, any treaty or convention for extradition between the Government of the United States and any foreign Government, it shall and may be lawful for any of the Justices of the Supreme Court, or Judges of the several District Courts of the United States, and the Commissioners authorized so to do by any of the Courts of the United States, and they shall have power, upon complaint made upon oath or affirmation, charging any person, found within the limits of any State, District or Territory, with having committed within the jurisdiction of any such foreign Government any of the crimes enumerated or provided for by any such treaty or convention, to issue his warrant for the apprehension of the person so charged, that he may be brought before such Judge or Commissioner, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient by him to sustain the charge, under the provisions of the proper treaty or convention, it shall be the duty of such Judge or Commissioner to certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue, on the requisition of the proper authorities of such foreign Government, for the surrender of such person, according to the stipulations of said treaty or convention; and it shall be the duty of said Judge or Commissioner to

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issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.

And it is further provided by that act of Congress, that in every case of complaint as aforesaid, and of a hearing upon the return of the warrant of arrest, copies of the depositions upon which an original warrant in any foreign country may have been granted, certified under the hand of the person or persons issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be received in evidence of the criminality of the person so apprehended. And that it shall be lawful for the Secretary of State, under his hand and seal of office, to order the person so committed by such judge or commissioner to be delivered to such person as shall be authorized in the name and on behalf of such foreign Government, to be tried for the crime of which such person shall be so accused, and that such person shall be delivered up accordingly.

And it is further provided by that act of Congress how, under certain circumstances, a person so committed by such judge or commissioner to await the order of the Executive for his extradition, may by a judge be discharged on a habeas corpus. For it is further enacted, that when any person who shall have been so committed by any judge or commissioner to remain until delivered up in pursuance of a requisition, shall not, after such commitment, within two calendar months be delivered up in pursuance thereof, (and he cannot be so delivered up without an order from the Executive through the Secretary of State,) and conveyed out of the United States; that in such a case it shall be lawful for any judge, upon application made to him by or in behalf of the person so committed, and upon proof made to such judge that reasonable notice of the intention to make such application has been given to the Secretary of State, to order the person so committed to be discharged out of custody, unless sufficient cause shall be shown to such judge why such discharge ought not to be made. In such a case, however, where there has been a lawful commitment, no discharge at any time can be had upon the order of any judge, unless reasonable notice of an intention to make an application for a discharge has been given to the Secretary of State.

Commissioner Nelson, as appears by his warrant of commitment, finds and certifies, before he proceeded to act, that a complaint on oath was made, charging the relator with having committed within the city of London, within the jurisdiction of the Government of Great Britain, the crime of forgery; that the President of the United States, upon the claim by the Government of Great Britain for the extradition of the said relator, upon the charge aforesaid, in pursuance of the treaty, did issue his warrant requiring him (Commissioner Nelson) to investigate said charge; that he did, after such complaint on oath and after such warrant from the President, issue his (the said Commissioner Nelson's) warrant for the apprehension of the said relator upon the said complaint; that the said relator was apprehended in pursuance of said last-mentioned warrant, and brought before him; that he did investigate the said charge; that he did consider and hear the evidence brought before him of the criminality of the relator, upon the said charge of forgery;