certified under the hand of the person 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 apprehended. That the Secretary of State under his hand and seal of office may order such offenders to be delivered to such person as may be authorized by such foreign government to receive them. That if such of fender be not conveyed out of the United States within two months after commitment, over and above the time actually required to convey him from the jail where committed by the readiest way out of the United States, any judge of the United States or state courts may discharge him on proof of reasonable notice to the Secretary of State, unless sufficient cause be shown to the judge why the discharge should not be ordered. That the Courts of the United States may authorize any person to act as commissioner under the act." Thus, at length, all the powers of the government, legislative, judicial and executive are brought into harmonious co-operation, each performing its appropriate office, and all contributing to the same end, the double duty of preserving public faith and at the same time protecting private liberty. Since the passage of the act of 1848, a majority of the judges of the Supreme Court of the United States, in 591] the Matter of Kaine,' expressed *the opinion that under that act a commissioner appointed by an order in general terms, may issue a warrant for the arrest of a fugitive from justice. That he may do so on the application of the representative of a foreign government, without special instruction or warrant being first issued to him by the United States government, and that proof that the magistrate in Ireland, before whom the prosecution was instituted, publicly discharged the duties of a 1 14 How. 103. justice of the peace, was prima facie evidence of his official character.' 1 In Ex parte Van Aernam, 3 Blatchford C. C. 160, the question was considered as to the power of the District Court to review, upon habeas corpus, the decision of the commissioner ordering a prisoner to be surrendered to the British authorities under the provisions of the treaty of 1842. The conclusion was that the court could not review such decision, either on the facts or the law. It was held that the courts of the United States had no authority on habeas corpus, to inquire into the merits of a decision made by a committing magistrate, and to determine that he erred in his construction of the law or the evidence. They will only inquire whether the prisoner stood charged before the magistrate with a criminal offence subjecting him to imprisonment, and whether the magistrate possessed competent authority to inquire into and adjudge upon that complaint." This decision was reviewed in In re Phillip Heinrich, 5 Blatchford, 414, and the doctrine above stated, was overruled. It was held that the District Court had power on a writ of habeas corpus, in conjunction with a writ of certiorari, to revise the action of a commissioner, committing a fugitive from justice for surrender under an extradition treaty, and would look into the evidence on which the judgment of the commission rested, and pass upon its weight as well as competency. In this case many questions of practice in proceedings under extradition treaties were discussed. Heinrich was an alleged fugitive from Prussia and was arrested in Wisconsin, by a deputy of the marshal of the United States for the Southern District of New York, under a warrant issued by a justice of the Supreme Court, directed to the marshals of the United States, commanding them to arrest the fugitive and bring him before the said justice or a commission at New York. The prisoner was brought before the commission and it was objected that the arrest was illegal. The objection was overruled. It was also held that the complaint on which the warrant issued must not charge more than one offence; and that the act of June 22, 1860, enlarges the class of documentary evidence which may be adduced in support of the charge of criminality, beyond that authorized by the act of August 12th, 1848, so as to admit any depositions, warrants, or other papers, or copies of the same, which are so authenticated that the tribunals of the country where the offence was committed would receive them for the same purpose. In the course of the opinion the court said: "Before finally dismissing this case I will endeaver to make some suggestions which may tend to prevent some of that uncertainty, confusion and prolixity which have so often characterized these proceedings under our extradition treaties. 1. It would seem indispensable that a demand for the surrender of the fugitive should be first made upon the executive authorities of the government, and a mandate of the President be obtained, before the judiciary is called upon to act. (See Mr. Justice Nelson's opinion, In re Kaine, 3 Blatchf. C. C. R. 9). At all events, this would be the better practice, and one in keeping with the dignity to be observed between nations, in such delicate and important transactions. 2. Where the warrant of arrest is returnable before a commissioner for hear ing, it should be one who has been previously designated by the Circuit Court under which he holds his office, as a commissioner for that purpose. (In re Kaine, 14 Howard, 142, 143). 3. Each piece of the documentary evidence offered by the agents of the foreign government in support of the charge of criminality should be accompanied by a certificate of the principal diplomatic or consular officer of the United States, resident in the foreign country from which the fugitive shall have escaped, stating clearly that it is properly and legally authenticated so as to entitle it to be received in evidence in support of the same criminal charge by the tribunals of such foreign country. 4. The commissioner before whom an alleged fugitive is brought for hearing should keep a record of all the oral evidence taken before him; taken in narrative form and not by question and answer, together with the objections made to the admissibility of any portion of it, or to any part of the documentary evidence, briefly stating the grounds of such objections, but he should exclude from the record the arguments and disputes of the counsel. 5. The parties seeking the extradition of the fugitive should be required by the commissioner to furnish an accurate translation of every document offered in evidence which is in a foreign language, accompanied by an affidavit of the translator made before him or some other United States commissioner or a judge of the United States that the same is correct. 6. The complaint upon which a warrant of arrest is asked should set forth clearly, but briefly, the substance of the offence charged, so that the court can see that one or more of the particular crimes enumerated in the treaty, is alleged to have been committed. This complaint need not to be drawn with the formal precision and nicety of an indictment for final trial, but should set forth the substantial and material features of the offence." The doctrine contained in the first of the foregoing propositions follows the dissenting opinion of Mr. Justice Nelson in the matter of Kaine, 14 How. 163. In that case four of the supreme judges of the United States held the contrary doctrine, while the views of Mr. Justice Nelson were concurred in by Chief Justice Taney and Mr. Justice Daniel. It may be doubted whether the first proposition will be accepted as the law upon that point. In In re McDonnel, 11 Blatchford, 79, doubt was expressed by Judge Woodruff on the subject. In that case it was held that it was sufficient if the warrant followed the words of the treaty; also that it was not proper to resort to habeas corpus, to review, during the progress of proceedings before the commissioners, decisions on questions as to evidence made by the commissioners. In Ex parte Ross, 2 Bond, 252, it was held that under the treaty between the United States and Great Britain of Aug. 9, 1842, and the legislation of Congress for carrying into effect its provisions, no authority is required from the executive department of the United States to enable a judge, magistrate or commissioner to issue a warrant for the arrest of an alleged fugitive from justice. In In re Farez, 7 Blatchford, 345, various questions as to practice in proceedings of this character were determined. The points decided are in the syllabus. A complaint before a commissioner, in an extradition case, verified by the consul of a foreign government, in which he charges the offence properly, is sufficient if made by him officially although he does not make the averments on his personal knowledge of the facts. It is not a necessary preliminary step to an investigation under an extradition treaty to show that a warrant was issued abroad against the offender, and therefore the complaint need not state that fact. The complaint need not show that the commissioner who issued the warrant for the arrest of the offender was authorized to issue that particular warrant; but it is sufficient for it to show that he was authorized to issue warrants in cases of extradition, embracing the one covered by such warrant. Under the convention for extradition between the United States and Switzerland (11 U. S. Stat. at Large, 593), which provides for the delivery of persons charged with certain crimes, "when these crimes are subject to infamous punishment,” it is sufficient if the crime is subject to infamous punishment in the country where it was committed, without its being also subject to infamous punishment in the country from which the extradition is demanded. The complaint before the commissioner being made by a foreign consul and showing that he has no personal knowledge of the matters stated in it, the offender cannot claim the right to cross-examine the consul on the investigation before the commissioner, before the prosecution gives any evidence under the complaint. Where depositions from abroad are put in evidence in an extradition case, under the act of June 22d, 1860 (12 U. S. Stat. at Large, 84), where the charge is forgery, and it appears by them that the forged papers were produced to and deposed to by the witnesses giving the depositions, it is not necessary that the forged papers should be produced here before the commissioner. Sufficient identity of the offence charged in the complaint in this case with the offence set forth in the mandate of the President. In order to render papers admissible in evidence under said act of 1860, it is not necessary that they should be papers on which a warrant of arrest was issued abroad. What is a sufficient certificate of authentication of papers under said act of 1860. Showing that the forgery is punishable by imprisonment in the state prison by the laws of the Canton of Berne, in Switzerland, in which canton the crime was committed, is showing that it is subject to infamous punishment in the country where it was committed, within the meaning of the said convention. On an investigation before a commissioner sitting in the state of New York, in an extradition case under said convention, the offender has a right to be examined as a witness on his own behalf. What is sufficient evidence to warrant a commitment with a view to extradition under said convention. The commissioner was justified in not adjourning the case to allow time for the procuring by the prisoner of alleged evidence on his behalf from Switzerland. The prisoner was discharged from custody under his final commitment by the commissioner, but was remanded to custody, under the warrant of arrest, with a view to a new examination before the commissioner. After the foregoing case, the same question as to power of District Court over decisions of commissioner upon habeas corpus, arose for decision in In re Joseph Stupp. 12 Blatchf. 501. The judge overruled In re Heinrich and In re Farez upon this point. In the course of his opinion, the judge said, “The court issuing the writ must inquire and adjudge whether the commissioner acquired jurisdiction of the matter by conforming to the requirements of the treaty and the statute, whether he exceeded his jurisdiction; and whether he had any legal or competent evidence of facts before him, on which to exercise a judgment as to the criminality of the accused. But such court is not to inquire whether the legal evidence of facts before the commissioner was suffi cient or insufficient to warrant his conclusions." It might be suggested that it is difficult to see how a court which has the power to decide that evidence is legal and competent, can be restrained in all cases from determining whether it is sufficient, for will not the question of sufficiency often be involved in the question of competency or legality? In any event, in the present conflict of authority, it is impossible to say what the powers of the District Court are upon habeas corpus, in reversing the rulings of commissioners in extradition cases, (Before Blatchford, J., Southern District of N, Y., June 16th, 1870) Where the extradition treaty between France and the United States provided that a person might be surrendered to one government for certain crimes committed in the other, among which was the offence of burglary, it was held that the common law offence of burglary was intended, and that where a party indicted for burglary in the third degree in New York, who had escaped to France, could not be lawfully surrendered under such treaty. But the court held that it was no ground for discharging a prisoner in a criminal matter that he had been forcibly within the jurisdiction of the courts. He was therefore remanded to the custody of the sheriff under the indictment charging burglary in the third degree. In matter of Lagrave, 25 How. Pr. 301. New questions of considerable interest were considered by the court in In re Stupp, 12 Blatchf. 501. Stupp, alias Carl Vogt, was alleged to be a native of Prussia. He always had been a citizen of Prussia and still was at the time of his arrest. He had been arrested in the United States, for extradition to Prussia, charged with having committed at Brussels, in Belgium, "and within the legal jurisdiction of Prussia," crimes specified in the convention between Prussia and the United States. It was alleged that, inasmuch as such crimes were at the time they were com mitted, punishable by the laws of Belgium, Stupp being, when they were com mitted, a subject of Prussia, was by the laws of Prussia, subject to be punished for said crimes in Prussia; that a prosecution against him therefor had been commenced in Prussia, and a warrant of arrest therefor had been issued against him by the proper judicial tribunal in Prussia having jurisdiction thereof; and that, immediately after committing the crime he had fled from the justice of |