In re Thomas Kaine, An Alleged Fugitive From Great Britain

• Decision Date: 01 December 1852
• Parties: IN RE THOMAS KAINE, AN ALLEGED FUGITIVE FROM GREAT BRITAIN
• Court: U.S. Supreme Court

55 U.S. 103

14 How. 103

14 L.Ed. 345

IN RE THOMAS KAINE, AN ALLEGED FUGITIVE FROM

GREAT BRITAIN.

December Term, 1852

ON the 14th of June, 1852, Anthony Barclay, the British Consul at New York, addressed to Samuel R. Betts, Judge of the District Court of the United States for the Southern District of New York, and to any commissioners authorized to perform judicial duties in the matter, a requisition and complaint. It set forth, that it had been represented to Mr. Barclay, and was believed by him, that one Thomas Kane, or Kaine, or Cain, then of Cooleen, in Ireland, did, on or about the 5th of April, 1851, fire a pistol at one James Balfe, with intent to murder him; that a warrant to apprehend him was issued by a justice of the peace, but that said Kaine had absconded and fled to the United States. The requisition further stated, that the crime of which he had been guilty would have justified his apprehension and commitment if it had been committed within the United States. It then asked that a warrant for his apprehension might be issued, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence should be deemed sufficient, that it should be certified to the proper executive authority, in order that a warrant might issue for the surrender of such fugitive, under the treaty between the United States and Great Britain.

The truth of this complaint was sworn to by Mr. Barclay.

Kaine was arrested and brought before Joseph Bridgham, a Commissioner of the United States, at New York.

The case was heard before the Commissioner, who decided, on the 23d of June, that the evidence was sufficient in law to justify the commitment of Kaine, upon the charge of assault with intent to commit murder; and ordered that the prisoner should be committed, to abide the order of the President of the United States.

A writ of habeas corpus was sued out, and allowed by Judge Betts. The writ was returnable to the Circuit Court of the United States; and, on the 3d of July, Judge Betts, the District Judge, then sitting alone in the Circuit Court, decided that the writ should be dismissed and the prisoner be remanded to the custody of the marshal.

On the 17th of July, the Acting Secretary of State issued a warrant, directing the marshal to deliver up Kaine to the British Consul.

On the 22d of July, Kaine presented a petition to Mr. Justice Nelson, at his chambers, praying for a writ of habeas corpus. The petition, although handed to Mr. Justice Nelson, was addressed to the Justices of the Supreme Court of the United States, which was not then in session.

On the 3d of August, Mr. Justice Nelson allowed the writ, and made it returnable on the 11th.

The marshal, in his return, stated the above facts, when, on the same day, Mr. Justice Nelson ordered as follows:

'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.'

A motion was made in this court for a certiorari, to bring up the proceedings of the Circuit Court, when holden by Judge Betts, which were printed, and ready to be used if the writ should be ordered.

In this condition of the case, the court passed the following order.

On consideration of the petition filed in this cause yesterday, and of the arguments of counsel thereupon had, as well in support of the application as against it, it is now here ordered by the court, that counsel have leave to argue the following questions, to wit:

1. Has this court jurisdiction upon the case, as certified by Judge Nelson?-

2. Can a certiorari issue to bring up the proceedings in the Circuit Court?

3. Assuming the court to have jurisdiction, and the proceedings in the Circuit Court to be legally before this court, is the party entitled to be discharged?

And it is further ordered by the court, that the same be, and hereby are, set down for argument on the first Monday of January next.

The unusual length of the opinions delivered by the Judges prevents the Reporter from inserting the arguments of counsel, which he would wish to do.

The case was argued by Mr. Busteed and Mr. Brady, for the petitioner, no counsel appearing on the other side.

As the opinions refer to a particular part of the proceedings and evidence below, it is necessary to insert the following.

Warrant. To John M. Higginson, Esq., Sub-Inspector, and his Assistants, this to execute.

COUNTY OF WESTMEATH, to wit:

Whereas, complaint on oath has been made before her majesty's justices of the peace, of and for the said county of Westmeath, at Ballinlober, on this day, that one Thomas Kane did, at Cooleen, in said county of Westmeath, on this fifth day of April, instant, feloniously and maliciously fire a pistol, loaded with powder and lead, at one James Balfe, with the intent to murder him, and did then and there wound the aforesaid James Balfe:

These are, therefore, in her majesty's name, to charge and command you, immediately on receipt thereof, to apprehend and bring before some of her majesty's justices of the peace, of and for said county, the body of the aforesaid Thomas Kane, to answer the complaint, and to be further dealt with according to law.

Given under my hand and seal, this 5th day of April, 1851.

JAS. FEATHERSTON, J. P. [SEAL.]

To Sub-Constable Martin Meagher and his lawful assistants, this warrant legally to execute.

J. M. HIGGINSON, 3d S. I.

MOATE, 5th April, 1851.

Endeavored to execute same on the 11th and 12th of April, '51, at Liverpool, without effect.

MARTIN MEAGHER, A. C.

Endeavored to execute this warrant on the night of the 29th instant, with J. M. Higginson, Esq., S. I., and party; did not succeed.

JAMES GREEN, Head Constable.

Do. do. on the 7th June, 1851. MOATE, May 30th, '51.

J. G., H. C. This warrant endeavored Endeavored to be executed to be executed on

on the 6th July, '51, by the morning of the

JAS. MOORE, C. 16th November, '51,

without effect.

Do. Oct. 16.}

} J. G., H. C.

Do. do. 28. } Endeavored to execute

Do. Nov. 10, '51. M. M., A. C. this warrant on Thos.

Do. Nov. 25, '51. J. MALON, S. C. Kane, night of the 29th

Do. No. 29, '51. A. C. MEAGHER Feb., '52, without

and party. effect.

M. COSTIGAN, Const.

Do. Dec. 21st. M. COSTIGAN, C. Endeavored to execute

Do. do. 27th. this warrant, night

Do. do. 12th Jan'y, '52. of the 13th March,

A. C. MEAGHER and party. '52, without effect.

Do. 22d Feb., '52. M. COSTIGAN, Const.

By Sub-Inspr. and party.

BOROUGH OF LIVERPOOL, to wit:

Whereas, proof upon oath hath this day been made before me, one of her majesty's justices of the peace for the said borough, that the name, James Featherston, to the within warrant subscribed, is of the handwriting of the justice of the peace within mentioned. I do hereby authorize Martin Meagher, who bringeth to me this warrant, and all other persons to whom it was originally directed, or by whom it may lawfully be executed, and also all constables and other peace officers of the said borough of Liverpool, to execute the same within the said late mentioned borough.

Given under my hand, this 11th day of April, 1851.

R. E. HARVEY.

COUNTY OF WESTMEATH, to wit:

The information and complaint of James Balfe, of Shurock, farmer, taken 5th day of April, in the year of our Lord 1851, before the undersigned, one of her Majesty's justices of the peace in and for said county of Westmeath, who saith, that on this day, (the 5th day of April,) I was ploughing near that part of the land of Cooleen, in said county of Westmeath, which land a man named William Stones had lately been dispossessed of, and about which he had frequently threatened me, and told me a few days since that I might sow it, but that I should not live to reap it. Saith, about the hour of 12 o'clock at noon, on said day, a man named Thomas Cain, or Kain, came up to me when I was ploughing, armed with a case of pistols. On coming up to me he said to me, 'God save you; are you Peter Balfe?' I said, don't you know well I am not, Tom. He then asked, is that Stones' land? I said not; that it was the other side of the ditch. He then asked me, was I warned to have nothing to do with it, (Stones' land,) and I said not, except what I heard from Stones. He then said he came to warn me, and asked had I a prayer-book. I said not. Well, I have one myself; and he took both pistols in one hand, and took a prayer-book out of his pocket and threw it on the ground towards me. I stooped to take it up, and while stooping he fired one of the pistols at me; and on examining my person, I found the mark of a bullet and twenty-seven grains of shot in my side, just under my left arm. He was so close that the powder discolored my coat, and some of the said shot marks was on my left arm. I then jumped up and ran away, and he followed me some distance; he then turned back towards the horses, and I went into John Mularney's house, and sent for the horses. I saw no more of him. I knew him well for some years back, and I kept his prayer-book.

JAMES his X mark. BALFE.

Sworn before me the day and year first mentioned, at Ballentubbe, in said county of Westmeath, this 5th day of April, 1851.

JAMES FEATHERSTON, H.

I certify that the information, copied on the other side hereof, is the original deposition upon which the original warrant has been issued by me for the apprehension of Thomas Kain, charged with shooting at James Balfe, of Shurock, in the county of Westmeath, with intent to murder him, the said James Balfe; and I further certify, that the said copy at the other side hereof is a true copy of said original deposition.

Dated the 25th day of May, 1852.

JAS. FEATHERSTON, H.

One of her Majesty's Justices of the Peace of the county of...