IN RE HOOVER.
61
In re 1.
HOOVER.
(District Oourt, 8. D. Georgia, E. D HABEAS CORPUS-CIRCUIT COURT-SHERIFF.
March 1, 1887.>
Where the writ of habeas COrpU8 from the United States court is sought against the sheriff of a state court by one imprisoned for the violation of a state law, the petitioner must clearly show an irreconcilable antagonism be· tween the federa1law and the state law under which he is in custody. and distinguished.
2. SAME-CASE DISTINGUISHED. The case of rick Wo v. Hopkina, 118 U. S. 856, 6 Sup. Ct. Rep. 1064, cited,
8.
CONSTITUTIONAL LAW-POLIOE POWER-REGULATING OOOUPATIONS.
Where the political power of a state for the safety of its people takes the responsibility of saying that certain occupations are hurtful, and will not be permitted in its boundaries, unless that declaration is so unreasonable as to be outside the domain of law, the occupation so stigmatized is no longer a right, privilege, or immunity, within the meaning of the constitution. 1
·· INTOXIOATING LIQUORS-RIGHT TO SELL NOT PRIVILEGE OF CITIZEN OF UNITED STATm8·.
The right to sell intoxicating liquors is not one of the privileges and im· munitiesof citizens of the United t::ltates ·which by the fourteenth amendment . the states were forbidden to abridge. 1 6. S.um-STATE PROHmITING OR REGULATING SliE. The state may authorize, or refuse to authorize, the sale of liquor on such terms as it thinkl!. proper, and the courts of the United States have nothing to do with the exer<lise of this police power.1 6. SllIlll-GEORGIA LAW VALlD. The law of the state complained of in this application is reasonable, necessary, and beneficia!.1 (811llabm by the Oourt.)
On "Application for Habeas Corpus. Oharles N. West, for petitioner. Fleming G. Du Bigrwn, for sheriff. .R
SPEER, J. On the twelfth day of February, 1887, Lemuel L. Hoover, resident of Chatham county, and a citizen of the state of Georgia, was beforEl the superior court of said county, the honorable A. P. ADAMS, J .. presiding, charged by indictment with spirituous liquors out a license from the state. On arraignment, Hoover pleaded guilty, and he was sentenced; and the court imposed a fine on him of $250, and the costs, and ordered, in default of payment, the alternative penalty of six months' imprisonment in the common jail. Hoover refused to pay the fine and costs, and was taken into custody by John T. Ronan, sheriff; and that official, with much kindness and liberality of conduct,having been apprised by Hoover that he purposed to test in this court the validity of his conviction, did not confine his prisoner, but detained him constructively. A petition for habea8 corpus was immediately presented to me. Ordinarily, in cases of this character, to gran< the writ is a ma-tter of course, and the legality of the detention is determined on the return of the arresting officer. On this application, I
See Expai'te Kennedy,('rex.) 3 S. W. Rep. 114. and note.
62
FEDERAL REPORTER.
for reasons to me sufficient, I have proceeded with more hesitancy. So great is the reluctance with ,which the judges of the national courts interfere at any time with convictions before courts of general jurisdiction of the states, that opportunity was afforded the'sheriff'to Show cause why the writ should not be issued. The sher:iff appeared by counsel, ,and on this informal rule to show cause the parties were heard. The petition alleges that Hoover is illegally restrained of his liberty because he made application to the board of county commissioners for license to sell liquor in quantities less than one gallon, at Montgomery" a suburban resort of Savannah, :and the license was refused. This was done in the exercise of the power granted to the commissioners by the act of the general assembly ofthe state of Georgia approved October 16, 1885, entitled" An act to change the manner of granting license for the sale of spirituous liquors, as contained in section 1419 of the Code of this state, as amended by the act approved 'December 22, 1884, and before for other purposes;" whereby it was provided that taining license to retail spirituous liguors, or sell the same in any quantity less thaQ ona gallon, must apply to the ordinary of.the county, or to the county commissioners of the .county,wheresuch courts exist, in which they desire to retail or sell in any quantity less than one gallon, who have power to gl'ant or refuse such application. Before any license shall be granted, the applicant shall present to the 6rdinary the,.written consent of ten of the nearest bona fide residents; five of whom shall be freeholders, owning land, irrespective of county lines, nearest to the of business where such spirituous liquors aredo besold: provided, that this act shall not apply to incorporated towns or cities." The petitioner, having been refused a license, proceeded to sell without it. . , The petitioner insists that this statute is violative, of the fourfeenth amendment to the cons"titution of the United States, and is therefore void, in that it gives an arbitrary discretion to the county commission.ers to prevent him from engaging in an occupation legalized by the state, and without any ,sort of regard to his personal fitness for or the propriety ll.nd merit ofhi8 application; that it discriminates ill favor of persons residing in incorporated towns, as they need not. to obtain the consent of their neighbors, and the county commiSE1ionershave no power to, deny to them the license. ' ', The powers accorded to the board of county commissioners, or to the ordinary, where there are no commissioners, are certainly unlimited. The words of the act "who have power to grant or r(jfuse such application,"areas broadly declaratory of absolute and final control as the antibar-room tendencies of the general assembly of Georgia could The unreviewable character of thjs PQwer is well settled. Under theol¢! law it was held that the justices of the inferior court had no discretion to withhold the license when the terms of the law had been complied with. State v. Jttstices, 15 Ga. 413. But in that case the very affiuenteommand of language for which the court at that early period was widely known utterly failed to express its regret that the inferior court did not hav'a power to refuse the license altogether. Since the adoption pf the COde,
IN RE HOOVJ<.:R.
53
the supreme court holds uniformly that the power to refuse the license is absolute, and that they neither can nor will permit the discretion of the ordiIl£ryor of the county commissioners to be reviewed. Wiggin8 v. Varner, 67 Ga. 583. It is superfluous to say that this authoritative construction of a statute of the state, embracing a matter of local government, is the law to which this court deferentially, and indeed most cheerfully, conforms, in all cases where such construction is not plainly in conflict with the operative laws of the United. States, or with that marvelous compendium of imperishable and dominating principles which the prophetic wisdom of our fathers embodied in the constitution of our country. To enlist the process of this court in his behalf,the petitioner must clearly show an irreconcilable antagonism between the state enactment and the constitutional declaration. The argument of the counsel for petitioner embraces the following topics: Insistence that the liquor traffic is legalized in Georgia by the qonstitutionof the state, art. 8, § 3, authorizing the assessment of a taxon spirituous and malt liquors, and. setting apart the fund arising therefrom, for school purposes; by the implied sanction of the license act, 809;) and by the inspectidn ofHquors, (Code,§ 1580:et ileq.) This traffi,G, thus recognized and made lawful, must be inllists, by laws and methods uniform in character, and bearing equally upon all who. desire to engage in it; and this law is not equal in its operation and effect, whereas the clause of the constitution reli!J(i pn decllj,res:. "No state shall make or enforce any law which shall abridge the privil,eges or immunities of citizens of the United States; nor shall any state deprive any' person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the Analogies were argued from precedents where thE;lstatewasinhibited from restraining interstate commerce, (Railroad Co. v. Husen, 95 U. S. 465;) and from imposing a license tax on an importer, (.Bro'tQn v. Maryland, 12 Wheat. 436;) and from passing ex P08t facto laws, and laws imposing the obligation of contracts. Great stress is laid upon. the authority of Baltimore v. Radecke, 49 Md. 213. In that case, in an exceed. ingly clear and satisfactory opinion pronounced by Judge MILLER, the court held that where a citizen has been granted the permission to erect and use a steam,engine on premises in the city, that an ordinance which <!lothes a individual with .the absolute power to revoke the permit does not fall within the domain oflaw, and is inoperative and void; and; under the general jurisdiction of equity, the court enjoined the city from enforcing tbeunreasonable. ordinance. The courts of the United States could possibly have no original jurisdiction of the question there involved. . It will be observed that none of the cases heretofore cited arise under the fourteenth amendment to the constitution of the United States, and upon that amendment ex nece88itate the petitioner must predicate his claim for the writ. He must affirmatively show that he has been "abridged" of the privileges or immunities of citizens ofihe. United :States, or that he bas been denied the equal protection of the laws.
Unless he has been denied a right in violation of the constitution or laws of the United States, I have no jurisdiction to consider.his comWo v. Hcpkins, 118 U. S. plaint. To show this denial, the case of 356, 6 Sup. Ct. Rep. 1064, is strongly relied on by the petitioners. The plaintiff in error, a subject of the emperor of China, was arrested and convicted for violating the following ordinance of the city of San Francisco: "It shall})e unlawful from and after the passage of this order for any person or persons to establish, maintaih, or carry on a laundry within the corporate limits of the city or county of San Francisco without first having obtained the consent of the board of supervisors, except the same be located in a building constructed of either brick or stone. " He applied for the writ of habeas corpus. It appeared that the petitioner had been carrying on the 'business for 21 years in the same building; that, from the report of the fire-wardens, there was no reason why the consent of the supervisors should have been withheld. It was alleged in the petition that Yick Wo and 150 of his countrymen had been arrested upon the charge of carrying on business without having such special consent, while those who are not subjects of the emperor of China, and who are conducting 80 odd laundries, under similar condi, tions, are left unmolested and free to enjoy the enhanced trade and profits arising from this hurtful and unfair discrimination. The ordinance was declared void on its face. as being within the fourteenth amendment, and denying to the petitioner a right, in violation of the constitution, laws, and treaties of the United States. The supreme court of California had sustained the validity of the ordinance, but the supreme court of the United States reviewed their judgment, and held the discrimination illegal, and a denial of the equal protection of the laws, a. violation of the fourteenth amendment, and the imprisonment of the petitioner illelral. There it -was clear that the discrimination was directed exclusively against a particular class of persons. It showed as clearly, the mind of the state to be unequal and oppressive; it showed a hostility of race and nationality towards a class whom .we were bound by treaty to protect. It was directed against an occupation not deleterious to public health, and not injurious to public morals,-an occupation which, like that of tilling the soil, springs from the inherent right of every man to make his bread. A Chinaman, a negro, a Hottentot, a white man. has the right to the protection of the United States within the limits of the country in any occupation which he has the right to carryon. He may not be deprived arbitrarily of life or liberty, nor can his property be taken without just compensation or due process of law. He may have equal protection in the enjoyment of his personal or civil rights; he may pursue happiness in his own way; equal access tathe courts; no liability to greater punishment for crime than is imposed on others for similar crimeS. These are instances of the rights which may not be abridged, and of the privileges and immunities in the enjoyment of which he is entitled to the equal protection of the laws. But when the political power of the state
55
for the safety of its people takes the responsibility of saying that certain Dccupations are hurtful, and wiII not be permitted in its boundaries, unless that declaration is so unreasonable as to violate and outrage natural -justice, it is a purely political responsibility, and there is an end of the matter. Salus populi IfUPrem.a lex, and the 01lly appeal is to the force of public opinion, or its expression at the ballot-box. That occupation so .stigmatized is no longer a right, privilege, or immunity. Is the sale of intoxicating liquors an occupation of that sort? Let the supreme court {)f the United States answer. "The right to sell intoxicating liquors is not one of the privileges and immunities of citizens of the United States which by the fourteenth amendment the states were forbidden to abridge." "The weight of authority is overwhelming that no such immunity heretofore existed as would prevent state legislatures from regulating, and even prohibiting, the traffic in intoxicating drinks." Barte'1M!Ie:T' v. Iowa, 18 Wall. 129. "No one," said Mr. Justice BRADLEY, in his concurring opinion in that case, "has ever doubted that a legislature may prohibit the vending of articles deemed injurious to the safety of society, provided it does riot interfere with vested rights of property. When such rights stand in the way of the public good, they can be removed by awarding compensation to the owner. When they are not in question, the claim ofa right to sell a prohibited article can never be deemed one of the privileges and immunities of the citizen." Now, if the state may prohibit the sale of liquor altogether, since it is clearly not a "privilege or an immunity" in the meaning of the constitution, may, it not authorize the sale on 8uch terms, by such persons., and at such places, as it thinks proper? And, if it may do this directly, may it not delegate to others the exercise of the power? lthas simply delegated a portion of its sovereignty.to the county commissioners .of Chatham county. The commissioners, in the exercise of that sovereignty, refuse a license to the petitioner. The discretion must rest somewhere. The state might have exercised it. It intrusts its discretion to the board of county commissioners, and, as I have said, by the terms of the grant, this discretion is final, and not reviewable. This power is inseparable from the sovereignty of the state. The powers of the courts of the general government have nothing to do with it. It is a local regulation, and relates exclusively to the internal police of the state. Caae8, 5 How. 573. "It is not necessary," said Mr. Justice GRIER. in concluding his. opinion in that celebrated case, "It is not necessary, for the sake of justifying the state legislation now under consideration,' to array the appalling statistics of misery, pauperism, and crime which have their origin in the nse or abuse of ardent spirits. The police power, which is exclusively in the states, is alone competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority.,. It is insisted by the petitioner that the act of the legislature and the action of the county commissioners is so unreasonable that the authority of the case cited from 118 U. S. 356, 6 Sup. Ct. Rep. 1064, will compel his release., Certainly in the cases respectively considered the occupations of
56
the persons affected are very different in character. There is but little in common between the bar-room and the laundry. The laundry is pronounced by the supreme court in the case cited to be a "harmless and useful occupation." Unquestionably it is not without its influence upon the advancement of civilization.; The necessities of sanitation, of cency, of adornment, and many other requisites of civilized society, if not expressly, certainly by implication, c0ll1pelu8 to accord to the laundry a large degree of usefulness, and, indeed, of indispensableness. Who can" view with alarm" the lllultiplication of laundries? Their very implements are innocuous. I can recall no instance in history or literature where they have been used" contra bono8 mores." True, the amorous and oleaginous Falstaff, by his merry and fair tormentors was secreted in a buck-basket, but this seems to have mortified his evil disposition. "Have I lived," cried Sir John, "tobe carried in 'a basket like a barrow of butcher's offal, and be thrown in the Thames? A man of my kidney, think of that, that am as subject to heat as butter, a man of continual thaw and·dissolution. It was a miracle to 'scape sutrocation." The more modern breaker of hearts, the wicked but irresistible Mantalini, when he was degraded to turn the mangle in the laundry, looked upon life as a "demned horrid grind.» Surely, the maxim that" cleanliness is next to godliness" is the ample title of the laundry to the equal protection of the laws. It is painfully true that the occupation of thepetitioner is not regarded by' the courts as a "harmless and useful occupation." To cite cases upon this proposition is a waste of, time. . The particular legislation before the court, affecting as it does the rural communities of the state, was of supreme necessity and of supreme reasonableness. In incorporated towns and cities the law is presumed to be present in the persons of its municipal officers and its police force. The brutal excesses of ungovernable and dangerous men, when inflamed with drink, may be readily repressed, and the perpetrators punished. It is otherwise in the quiet and sparsely settled neighborhoods, where the farmers, and their wives and children, "far from the madding crowd's ignoble strife pursue the noiseless tenor of their way." The cross-roads groggery was the bane of our civilization. A simple, artless, and industl.'ious laboring population, inflamed and ennervated with drink, became .worthless as laborers, irresponsible as citizens, unreliable in all the rela.ti<ms of life, and the more vicious very dangerous to society. It is super'fluous to dilate upon facts so well known, and which have mainly caused the tremendous wave of public sentiment towards local option. It. is historically true that incalculable benefit has been under the bperatiotl 'of this law, and that of which it is an amendment, by conscientious and fearless county officials who have steadily refused to license 'dram-shops where there could be no police supervision. I state these things because, in considering the reasonableness of the law, the court will take cOgllizance of the history of the times in which it was enacted, . and, understanding the mischief, can the better understand the remedy. Notwithstanding the great ability' and learLling with which the application fo:rthe writ'was urged, I must decline to grant it, and it will be so ordered.
IN BE M'PHUN.
57
In re
MCPHUN.
(Oircuit Oourt, 8. D. Ne:w York. March 8,1887.) 1. EXTltADITION-TREATYWITH GREAT BRITAIN-PROOF OF CRIMINALITY-COPIES OF DEPOSITION-ACT OF AUGUST 3,1882. (22 ST. AT LARGE. 216.)
Under the act of August 3, 1882, depositions; and copies thereof, require the saIne kind of authentication to entitle them to be received in evidence in proof of criminalty.The words "similar purposes" mean "proof of criminality;" and, whe$er the original or a copy is offered, it is not admissible under the act of 1882, unless it would be receivable in the foreign country in proof of criminality. The consul's oertificate, if conforinable to the act of congress, is absolute
2.
SAME-AUTHENTICATION-CONSUL'S CERTIFICATE.
whether they are originals or copies. If this certificate is not conformable to the act of congress, the papers, whether originals or copies, may still be received upon proof of the fact that by the foreign law the papers presented would be competent evidence in proof of the criminality of the accused in the country from which he escaped. 8. SAME-ST. 6 & 7 VICT.-DEFECTI'VE CERTIFICATE. The relator being arrested in New York upon a charge of forgery committed at Calcutta. British India, the only proofs of criminality-submitted were coptes of depositions taken before the criminal magistrate at Calcutta, attested bY his clerk and the seal of his court. The consul's certificate stated that the depositions were so authenticated as "to enable them to be used in evidence, anlias proof that the originals were duly received in evidence of the criminalityof the accused." Held insufficient, under the act ot congress; and, no other proof being made that copies so attested could be received in evidence as proof of criminality within the British dominions, the copies of depositions were held improperly. received. . ·· SAME-ENGLISH STATUTES.
pliO of that the papers certified are receivable in proof of criminality abroad,
Under the statute of 6 & 7 Viet., upon similar proceedings for the removal of the accused from London to Calcutta, proof of criminality would be required, and copies of the original depositions would be recelvable for that purpose. if certified under the hand of the magistrate who issueq the warrant, and attested under the oath of the party producing them. The copies in this case having no such certificate from the magistrate, held, that the papers were defective under the first clause of the act of 1882, as well as un(1ar the second and that the prisoner must be discharged. '
.
Habea8 Coryus. F. F. Marbury and Oharles Fox, for the British Government. E. R. Johnes, John R. Abney, and J. T. Hoffman, for petitioner. BROWN, J. Upon the complaint of the consul general of Great Britain at thisport, the relator was arrested upon a charge of forgery, alleged to ha'Ve committed .at in April, 1883, and brought before CommISSIOner Odborn lU proceedmgs for extradition under article 10 of the treaty of August 9, 1842. Having been held by the commissioner relator has brought before the court on habl!a8 corpus, togethe; WIth the proceedmgs under a writ of certiorari. . Article 10 of the treaty with Great Britain (8 St. at Large, 576) proVIdes that the persons charged are to be delivered up, "provided that this shall only he done upon such evidence of criminality as,according to the laws of the place where the fugitive or person so charged shall be
58
found, would justify his apprehension and commitment for. trial if the crime or offense had there been committed;" that the magistrate shall have power to issue a warrant that the person charged may be brought before such magistrate, "to the end that the evidence of criminality may be heard and consideredj and if, on such hearing, the evidence be deemed sufficient to sustain the charge," that fact is to be certified, and the person delivered up. f1ection 5270 of the Revised Statutes pro. vides that such proceedings may be had before commissioners, and uses nearly the language of the treaty. '1'he hearing before the commissioner identity of the prisoner, and the involves essentil'1ily two sufficiencyof the evidence of criminality. '1'he identity of the prisoner is in, this case established by the testimony of the officer who came from Calcutta with the warrant, and with the other papers designed to sustain the charge. These papers embrace the original warrant, dated August 11, 1886, signed by the chief presidency magistrate of Calcutta,. and bearing the seal of that court. The only evidence of criminality, however, is found in the copied of numerous depositions which were taken before the presidency magistrate at Calcutta in September, 1884, and in August, 1886. No originals are produced. The only question necessary for me to consider is the compe. tency of these copies as evidence of criminality. By the very terms of the treaty just quoted, the evidence of criminality must be such as, according to the law of the place where the fugitive is found, would justify his apprehension and commitment. The competency of the evidence must therefore be judged wholly according to our own law, (1 Greenl. Ev. § 522 j) and this must be either according to such rules of evidence as congress may have prescribed, or, in the . absence of such provisions, and. in so far as they may be inapplicable, according to the rules of the common law. It is not contended that by the common-law rules of evidence mere copies of ex parte depositions, taken before a foreign criminal magistrate, though attested by the clerk of his court, would here be competent evidence of criminality. BETTS, J., in the Case of Kaine, 10 N. Y. Leg. Obs. 257, 268,..says expressly that such copies, though they were there attested by the clerk and by the oath of the witness producinj:{ them, were "not competent proof at common law," though he held them cient under the act of 1848. See, also, In re Kaine, 14 How. 103, 115, 116,144, 146, and 3 Blatchf. 1. Where the ultimate fact to be proved is merely the of a foreign record, such, for instance, as the fact of a foreign judgment in a suit brought upon that judgment, a properly attested or authenticated copy is admissible. Green!. Ev. 514, 527, 538,552. Here the ultimate fact is the criminality of the accused. The original depositions are only evidence tending to show crin:linality, and the attested copies presented are only evidence of evidence. The statutes of a foreign country relating to the suftlciency of evidence in extradition proceedings within its own dominions, such as the statutes of 33 & 84 Viet. c. 52, §§ 14, 15, (L. R. 5 St. 292,) have no relevancy, except in so far as the laws of our own country may make them
IN RE M'PHUN.
59
relevant; because by the treaty itself the primary question is not what is competent evidence abroad, but what is competent evidence here. . In ,.e Fowler, 18 Blatchf. 430, 439, 4 Fed. Rep. 303. The statutes of 33 and 34 Victoria relate to copies of foreign depositions only, not to copies . of depositions taken within the British dominions. Various provisions have been enacted by congress, from time to time, touching t11e papers and. documents, or copies thereof, which may be received as evidence of criminality. As respects copies, it was provided by the act of August 12, 1848, (9 St. at Large, 302, § 2,) that "copies of the depositions upon which an original warrant in any such foreign country Inay 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." By the act of June 22, 1860, (12 St. at Large, 84,) it was provided that any "depositions, warrants, and other papers, or copies thereof, shall be admitted forthe purposes mentioned in said section, [i. e., as evidence of criminality,] if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes [i. e., as evidence of criminality] by the tribunals of the foreign country from which the aecused party shall have escaped." By the act of June 19, 1876, (19 St. at Large, 59,) it was provided (1) that any "depositions, warrants, or other papers shall be admitted if properly and legally authenticated so as to entitle them to be received as evidence of the criminality of the person so apprehended by the tribunals of the foreign country from which he escaped;" and (2) that "copies of any such depositions, warrants, or other papers shall, if authenticated according to the law of such foreign country, be in like manner received as evidence." By section 5 of the act of August 3, 1882, (22 St. at Large, 216,) the act of 1860 is in substance restored, and it is enacted that any" depositions, warrants, or other papers, or copies thereof, shall be received and admitted as evidence on such hearing, for all the purposes of such hearing, if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped; and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant, or other paper, or copies thereof, so offered, are authenticated in the manner required by tnis act." There is no other provision for the admission of copies. By section 6 of the act last named, prior statutes, so fat: as inconsistent with that act, were repealed. The term "similar purposes" must receive the same construction in the lastrnamed act as in prior acts. By its context it naturally refers to the words in the previous line, "for all the purposes of such hearing;" that is, to proof of criminality, which is the purpose of the hearing. The same construction had been given to similar words in prior statutes. In re Farez, 7 Blatchf. 345, 353; In re Henrich, 5 Blatchf. 414, 425. The act of 1876 made different provisions as respects original depositions,
60
and copie$of such depositions. This distinction is pointed out and com-. mented upon by Mr. Justice BLATCHFORD in the Case ofFowler, 18 Blatchf. 430, 435, 4 Fed. Rep. 303. Under that act, in order to make use of copies, there must first be original depositions, which by the foreign law would be proof of criminality, and then the copies offered in evidence were required only to be "authenticated according to the law of such foreign country." The act of1882, in repealing former sta.tutes inconsistent with it, and ill placinp; copies upon the same footing as originals, has required the same conditions as respects copies that it requires as respects originals; namely,that whichever be offered, whether the original or a copy, it must be a paper "legally authenticated so as to title it to be received for similar purposes [that is, as evidence of criminalityJ by the tribunals of the foreign country." In this respect the act of 1882 is precisely similar to that of June 22, 1860, above referred to. The Case of Henrich, 5 Blatchf. 414, 425, arose under the act of 1860, and was very carefully considered. The opinion delivered by SHIPMAN, J., was concurred in by Mr. Justice NELSON and by BLATCHFORD, J. It was there said, (page 425:) evidence offered by the agents of the for"Each piece of eign in support of the charge of criminality should be accompanied by a certificate of the principal diplomatic or consular _officer of the United Stated 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." Under none of the previous statutes could the copies of the depositions in the present case be admitted, for the reason that these copies are not "certified under the hand of the person issuing such warrant,"-that is, under the· harid of the presidency magistrate, -even if these provisions could be deemed now ,in force. As attested copies are not competent merely upon the common-law rules of evidence, the case as against the accused must'stand upon the provisionsof section 5 of the act of August 3, 1882. Under that act, as under the act of 1860, the prosecution may rely upon the certificate of the diplomatic or consular officer, which, if in conformity with the statute, is of itself absolute proof that the papers so certified are receivable in the foreign country in proof of criminality. .But, if that certificate be not conformable to the act of congress, resort may then be had under the former part of the fifth section to any oral or .other proof that is competent to show that the copies presented are so authenticated as to entitle them to be received as evidence of criminality in a proceeding for commitment or transportation for trial in the foreign country from which the accused party shall have escaped. In re Fbwler, 18 Blatchf. 430, 437, 438, 4 Fed. Rep. 303; In re Wadge, 15 Fed. Rep. 864, affirmed on appeal, 16 Fed. Rep. 332, 21 Blatchf. 300. The foreign law in the latter case must be proved as a fact. No oral proof of this kind has been submitted j nor, so far as the general law of Great Britain or the local British law of India has beep ascertained by reference to books, nas it been found that mere copies of original depositions taken before a
magistrate, and attested by the clerk of his court, would be, anywh re within the British dominiohs, competent proof against the accused for the purposes of commitment. If, for instance, the prisoner had been fOlmd in London, and proceedings were had there upon this original warrant from Calcutta, for the purpose of his commitment and transportation to Calcutta for trial, it is provided by the statute of6 & 7 Viet. that, upon such an arrest in London, and on his being brought before a criminal magistrate there, "such evidence of criminality must be there produced as would justify committal if the oftEmse had been there committed," (section 3:) "provided, always, that in everysuch case copies of the depositions upon which the original warrant was 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," (section 4.) Our statute of 1848 above cited was manifestly framed upon the statute of6 & 7 Viet. The language is nearly identical in each. From this it is clear that, unless there be some later statutes that I have not found, the attested copies in this case could not have been received if this proceeding had been in London; nor could the prisoner have been committed for transportation, because the attested copies are not certified under the hand of the presidency magistrate who issued the original warrant. ' The case niust stand, therefore, upon the certificate of the consul alone. That certificate is very full in many respects. All that relates to the oortified copies, however, is in the following words: "And I certify that all and every the certified copies hereunto attached are properly and legally authenticated and certified according to the law in force in British India, so as to enable them to be used in evidence and as proof that the originals Were duly received in evidence by the said GILBERT STUART HENDERSON, Esquire, and the said FREDERICK JOHN MAHSDEN, Esquire, respectively in proof of the. criminality of the said Robert Bruce McPhun in respect of the said charges of forgery, uttering, and cheatnamed ing." , , Had the foregoing certificate omitted all that follows the words "used in evidence," and added only" for similar purposes," that, with the context, must have heen held sufficient, as in the Case of Wadge, supra. ,But, upon repeated consideration, I find myself unable to construe what follows the words" used in evidence" as intended otherwise than as a definition of the purposes for which the copies might be received, namely, as evidence that certain originals were on file, which originals had been duly received in evidence by the magistrates at CalCutta as proof of criminality. That is manifestly quite a different thing from what our statute requires. The certifioate amounts to no more than what would be the force of the copies as evidence at common law; namely, that such depositions existed at Caacutta, which might be used as evidence as against the parties who made the depositiorts,perhaps, though not competent evidence of the criminality of the accused. 1 Greenl. 'Ev. 533, 538, 539. The