In re Bruni

At the commencement of the investigation, in this case, I decided that the commitment was prima facie legal, and justified the detention of the relator; that I had no power, under this proceeding, to examine into any question of mere error, irregularity, or want of form; and that the only question before me was, whether the magistrate who issued the process of commitment had jurisdiction. (The People v. Nevins, 1 Hill, 154 . 3 Id. 661, note sub. 31, and cases there cited.) It was not denied, on the contrary it was admitted, by the counsel for the relator, on the final argument, that this was the only proper subject of inquiry.

The commitment under which Bruni was detained, purported to be made in pursuance of the act of congress of 2d March, 1829. The act does not refer particularly to the French government. It refers to “ any government having a treaty with the United States, stipulating for the restoration of seamen deserting.” And it appears by reference to the 6th article of the treaty with France, that she had such a treaty with the United States as is required by the act. (8 Stat. at Large, 279, art. 6.)

As the first question is one of jurisdiction, the first inquiry is, at what stage of the proceedings did Justice Drinker obtain jurisdiction of the matter, if he obtained such jurisdiction at all? The answer to this, unquestionably, is that if all the proceedings were regular, up to the time when the relator was brought before the magistrate under the warrant issued by him, he then had jurisdiction both of the person, and of the subject matter. If he thus obtained jurisdiction, his subsequent decision, and commitment of the relator, are conclusive as far as this investigation is concerned, and I have no authority to review them.

By reference to the act of congress, it appears that there müst be “ an application of the consul or vice consul,” which must be

There were four requisites nesessary to the regularity of the proceedings before Justice Drinker, previous to the examination. 1st. An application pursuant to the provisions of the statute. 2d. Proof, by exhibition of the ship’s official document, that Bruni, at the time of the alleged desertion, belonged to the crew of the Philadelphia. 3d. That the magistrate should have had competent power to issue warrants. 4th. That the said magistrate should have caused the said Bruni to be arrested in a proper legal manner.

The first question is, as to the regularity of the application made to the magistrate.

It appeared on the investigation, by the testimony of Anthony Borg, that the captain of the Philadelphia called at the French consulate, in company with the consignee of the ship, and requested the witness to make an application for the restoration of Bruni, as a deserter. That he filled up a form, affixed the official consular seal to it, and signed it for the vice consul. That this was at about ten o’clock in the forenoon; that neither the consul nor the vice consul were present at the time. That he was a clerk in the office of the consulate, and had a general authority from the consul and vice consul to use then-official name and seal in such cases. That the vice consul came into the office at about half past eleven o’clock, and on being informed of what the clerk had done, expressed his approbation.

The original applicatiofi was produced before me, and was, in form, undoubtedly in compliance with the requisitions of the statute. But it was contended by the counsel for the relator that it was invalid, because it was made by the consul through

What was the character of the application 1 It was a simple ministerial act of the most ordinary kind. A mere request, requiring neither judgment, skill, nor ability to make it. As a general rule, ministerial authority can be delegated, unless there is some law, or some rule of policy, to the contrary. In this case the application determined nothing, and proved nothing. It did not constitute any part of the proof to be made before the magistrate, and was sufficient, according to every rule of policy, whether made by the consul in person, or through his duly authorized official agent. It was issued from the consulate, under the official seal of the consul general, by an authorized agent, and stated that “ the consul general requested,” &c. and was afterwards ratified by the vice consul. This it seems to me was a sufficient application by the vice consul, within the spirit and meaning of the treaty and of the act of congress.

The second inquiry is, was the proof before the magistrate sufficient to authorize the arrest of the relator ?

It appeared before me that the role d’equipage, (or list of the crew,) of the ship was exhibited to Justice Drinker, at the time that he issued his warrant, and that Bruni’s name was upon it. But it was contended that, although his name was upon this list of the crew, still he was not one of the crew, because he is called domestique, and not “ seaman” or “ sailor.” It will be remembered that all that the statute requires is, that it shall appear from the official document of the vessel, that the person named belonged, at the time of the desertion, to the crew of the vessel. Nothing is said about his being a seaman or sailor. The official document, in this case, was the role d’equvpage, (or list of the crew;) and if Bruni’s name appeared on this list, that was all that the statute required.

Third. Was Justice Drinker a magistrate, with competent power to issue warrants, within the provision of the statute 1 This was not denied on the argument; but it was contended that the act itself is contrary to the provisions of art. 3, § 1, of the constitution of the United States, which declares that “the

As to the last subject of inquiry, it was contended that the warrant issued by the magistrate was not in the proper form. The statute does not say that the magistrate shall issue a warrant, but that “ it shall be his duty to cause the said person to be arrested.” The process used by Justice Drinker, in this case, was what is ordinarily called a warrant. There is no doubt that it contained all that was necessary to make a legal arrest; if it contained more, that was mere surplusage.

It was also contended that the arrest was illegal, because the warrant was issued without oath. The statute says nothing about an oath, and the warrant issued by Justice Drinker was not a process of the character alluded to by the constitution of the United States,, as was urged by the counsel. (Amendments to Constitution, art. 4.)

If I am correct in these views, there was no want of jurisdiction in the magistrate who issued the process of commitment under which the relator was detained and imprisoned. The writ of habeas corpus must therefore be dismissed, and the said Paul Bruni remanded to the custody of the keeper of the city prison.

A writ of certiorari was then sued out of the supreme court, under the statute, (2 R. S. 3d ed. 668, § 84,) to bring up for review the proceedings before Judge Edwards.

Before this writ was returned, application was made ex parte, at the special term of the supreme court held by Judge Edmonds, for a writ of certiorari to bring up for review the proceed

I do not see how this court has any power to review the action of Justice Drinker in this case. Although he is a state officer, deriving his office from state appointment, yet he is pro hac vice an officer of the United States, deriving all his authority in this matter from the United States, acting under a law of the United States, in execution of a treaty of the United States.

In such cases we have no authority to interfere. The power of reviewing the justice’s action is in the tribunals of the United States, and in them alone. When he acts as a magistrate appointed by the authorities of the state, in execution of state laws, we have supervision over him ; but when he acts in execution of the laws and treaties of the United States, whether his power to act is conferred upon him either individually, by name, or by virtue of his local office, he is still an officer of the UnitedStates in that case, and amenable only to its tribunals for supervision. We have therefore no power to interfere to review his decision. Certiorari denied.

The counsel for Bruni immediately applied, ex parte, at the general term, and read the same affidavit of Bruni which was used in the first instance at the special term, the order and opin

The court, after hearing the general merits of the case explained, granted the writ in the first instance.

The wait to Judge Edwards and the one to the special justice were both returned and filed at the same time; upon which the court designated a day on which they would hear argument on both.

The attorney of the French consul then gave notice of a motion to quash the writ issued to the special justice: and the motion was brought on in the morning of the day for which the hearing of the certiorari was set down. This motion was first heard.

E. Sandford, for the vice consul. I. The application to the court for the writ was irregular. It should have been made on notice. ( 12 Wend. 292 .) II. The court will not exercise its discretionary power, unless good cause is shown, and it appears that the committing magistrate has done injustice. The policy of the act of congress, and the treaty, is against granting the writ. III. The supreme court of this state has no power to review the decision of Justice Drinker. He was acting under the constitution and laws of the United States, and was pro hac vice an officer of the United States, The power of this court to review the proceedings of inferior tribunals, to see that they keep within their jurisdiction, is limited to tribunals subordinate to them. Justice Drinker did not act as a tribunal inferior to this court, but as a tribunal inferior to the supreme court of the United States, and is subject only to its appellate power. He was not compelled to take cognizance of the case; but having done so, he is responsible only to the courts of the Union, whose laws he has executed.

V. The power of this court to remove by certiorari is co-extensive with its power of mandamus and prohibition, which can be issued only to its inferior tribunals.

D. D. Field, for Bruni. I. It is in the discretion of the court to issue the writ in the first instance, or to grant an order to show cause. The exercise of the discretion will depend upon the particular circumstances of each case. It was necessary in this matter to act without delay, if the removal of Bruni from the country was to be prevented. II. Leave having been given to apply at the general term, it was regular to make the application here in the same manner as it was made at the special term, ex parte; which was done, and a similar order asked for. III. The supreme court of this state has jurisdiction to issue the Avrit of certiorari to bring up the proceedings of Justice Drinker for revierv. 1. The jurisdiction of this court, like that of the king’s bench in England, extends to all persons, residing in the state, or OAving allegiance to it. ( 20 John. 430 . 3 Hill, 42 . 1 Paige, 548.) As to the jurisdiction of the king’s bench, see 3 Bl. Com. 42; Bac. Abr. Certiorari. The only qualification of this rule is, that it shall not be exercised so as to control the courts or officers of the Union. The two governments are independent in their respective spheres; and neither can dictate to the other. (3 Story's Com. on Const. § 1751.) 2. If it Avere a general principle that this court could not interfere Avith an act of a state magistrate done pursuant to a larv of the Union, yet Avhen, as in this case, that act is done in the name of the people of this state, by the Avrits of the people, directed to the executive officers of the people, the state, through the courts, must have some control over the acts, the process, and the execution. The right of the state to control their oavh Avrits, and the execution of such writs by its oavu constables and policemen, seems indisputable. 3. The objection to the jurisdiction of this court, upon the general principle, assumes that Drinker was really, for the occasion, a general officer of the United

delivered the opinion of the court. It is in the discretion of the court either to issue the writ of certiorari in the first instance, or to grant an order to show cause. The application in this case was regular, and the writ was properly issued, we have no doubt that this court has power to review the proceedings of Justice Drinker on certiorari. This court can control the writs of the people of this state; even though the justice acted without authority. We will hear argument on the return of the certioraris.

Judge Edwards sent up, with his return, copies of the petition for the habeas corpus, the writ issued by him, the return thereto, Bruni’s answer to the return, the application to the special justice for the arrest of Bruni, the warrant of arrest issued by the justice, the warrant of commitment, and the extract taken before him from the role de equipage of the French steamship on which Bruni was designated as “ domestique.” He did not return the evidence taken before him.

Justice Drinker, in his return, certified the application made by the vice consul to him, the warrant of arrest, the warrant of

“ And I further certify, that it was made known to me, by the keeper of the city prison, that the said Paul Bruni had been arrested pursuant to my warrant marked B.” (the warrant of arrest) “ on the evening of the 11th of August last, and lodged in the city prison (late at night time,) and accordingly on the morning of the 12th of August last aforesaid, I caused the said Paul Bruni to be brought before me; when I duly examined him, and told him he was charged with being a deserter from the steamship Philadelphia. I asked him what he had to say in relation to the charge; that he admitted and said that he had deserted, and assigned as a reason therefor that he had been cruelly treated by the captain of the said steamship. I thereupon, pursuant to such examination, made the warrant of commitment hereunto annexed marked C. (given above.) I return herewith all the papers and proofs on file in this office, or which were had or taken before me in this case.”

“ All the papers and proofs” consisted of the above papers certified and the above examination 6f Bruni.

Both certioraris were argued together.

D. D. Meld & David P. Hall, for Bruni. I. The act of congress confers no jurisdiction upon any state officers or magistrates. The act says it shall be “ the duty of any court, judge, justice, or other magistrate,” &c. It is therefore obligatory upon the court, officers, and magistrates named in it; and for disregarding its obligations there must be some means of

IV. The final order and process for the detention of Bruni was, on its face, defective, in the following respects: 1. Because it did not set forth the facts necessary to show jurisdiction in the justice. (King v. Inhab. of Wolcott, 6 T. R. 583. Powers v. The People, 4 John. 292 . 8 Conn. Rep. 482 . 10 Id. 514 .) General averments of any proceeding are not sufficient. (Van Etten v. Hunt, 6 Hill, 313 , 314. People v. Roeber, 7 Id. 39.) 2. It was issued in the name of the people of this state, and directed to a constable and the keeper of the city prison, two state officers. It should have been issued in the name of the president of the United States, and been directed to the marshal of the United States. 3. It directed the detention of Bruni in the city prison. This is a public prison for confinement of prisoners on criminal charges, and cannot

■ To establish the jurisdiction of Justice Drinker, it was necessary, under the French treaty of 1822, and the act of March 2, 1829, to show, 1. That the consul or vice consul of France made application in writing. 2. Stating that Bruni had deserted from a French vessel while in a port of the United States. 3. That proof was then made by the ship’s register, roll, or other official document, that Bruni was a sailor belonging to the crew of the Philadelphia, at the time of the desertion. 4. That a legal warrant was issued for his arrest, and that he was Brought up for examination. He could not be arrested by parol authority, or by a void process. 5. That an examination was had, and upon it the facts stated in the application and ship’s register were found to be true, and that thereupon the final order or process was made.

V. If the final order or process were good on its face, the rest of the record shows a fatal defect in the jurisdiction, in every one of the foregoing particulars. 1. The application was not made by the consul or vice consul. The statute must be strictly complied with. These officers were named because their sta

E. Sandford & F. R. Tillou, for the French vice consul. 1. The proceeding before Justice Drinker was not of that character which, under the constitution of the United States, it was imperative upon congress to vest in tribunals of its own creation. 1. The state courts may, in the exercise of their ordinary and rightful jurisdiction, take cognizance of cases arising under the constitution, laws, and treaties of the United States. 2. The judiciary act of 1789 shows that, in the opinion of congress, the grant ofjurisdiction is not sufficient to vest an exclusive jurisdiction. Unless there be some clause of exclusion in the acts of congress, they are to be regarded as permitting jurisdiction over the subjects therein described, to be exercised by the state courts and magistrates. (1 Kent, 398. 17 John. 1 . 14 Id. 95 .) II. The writ of certiorari brings up nothing but the record. The only question to be determined upon it is, whether the officer had jurisdiction. The facts cannot be examined hito, and if appearing upon the return, cannot be regarded. ( 25 Wend. 157 .) 1. The correctness of Justice Drinker’s decision cannot, therefore, be enquired int'o: if by a proper application of the vice consul he once gained jurisdiction, he did not lose jurisdiction by any subsequent erroneous decision. ( 6 Wend. 564 .) 2. A re-investigation of the facts and merits cannot be had, unless authorized by statute. The writ to Drinker is a common law certiorari. The justice’s decisions are therefore final in all questions of fact, so far as this court is concerned. (2 Chit. Gen. Pr. 375. 19 Wend. 342 .)

As to the subject matter. 1. The seal of the consulate affixed to the application proved it to be the official act of the consul. No other attestation was necessary. 2. The 4th amendment of the constitution of the United States, relates only to search and criminal warrants, and is not applicable to a case like this. 3. The presence and direction of the consul will be presumed. ( 21 Wend. 178 .) 4. If the court can infer that the consul was not present, and that the application was signed by his deputy or clerk without his direction and personal presence, it was a mere ministerial act of the most ordinary character, and could be performed by deputy. (9 Coke’s Rep. 47, 49. 10 Paige, 232,33. Sewell’s Law of Sheriffs, 33,41. 21 Wend. 178 .) 5. It is evident that the desertion took place in a port of the United States. The application was made at New-York, on the 6th of August, and alleges the desertion on the 3d of the same month. The desertion in that time could not have been in any port out of the United States.

As to the person of Bruni. 1. The justice obtained jurisdiction of the person of Bruni. He was brought up on the warrant. Being before the justice, he submitted to an examination, and that gave the justice jurisdiction to determine the principal question. (7 Cowen, 271, 2.) 2. Though Bruni was a domestic on board the steamship, he was a “ part of the crew” within the meaning of the act of congress. The term seaman, in the act, is generic, intended to include all who enter into the maritime contract. The language “ part of the crew ” is intended to denote the persons who have deserted, and not the sailors who may desert. 3. The treaty does not intend an inquiry before the magistrate into the particular character of the service contracted for, on board, • In respect to this, he is under the control of the master. Although he may have shipped as a domestic, he may have been obliged to toil at the ropes. 4. The exhibition of the roll forms the right of the magistrate to demand if the person be one of the ship’s crew, registered as such, If an inquiry is to be had beyond this, the

IV. Justice Drinker could issue the warrant either to the marshal of the United States or to any constable or officer of this state. The section of the judiciary act conferring power on state magistrates provides that it may be exercised “ agreeably to the mode of process against offenders in such state.” This was done in this case. (Conklin’s Tr. 405.)

V. The final order or warrant of commitment shows sufficient on its face. It refers to the statute under which the justice acted, and adds that the facts stated in the warrant are true. This is sufficient.

VI. The commitment to the city prison was proper. The state has conceded the use of the prison for the confinement of any person duly committed thereto for any offence against the United States. The act of desertion may be deemed an offence against the United States ; inasmuch as it tends to impair the effect of its treaty stipulations. (See act of April 15, 1814; Laws of New- York relating to the city of New- York, 21.)

Hurlbut, J. delivered the opinion of the court. This matter comes before us upon two writs of certiorari, the one bringing up the proceedings of Justice Drinker for review.; the other the proceedings before Judge Edwards. The important question, and perhaps the only one we are called upon to decide, is whether Justice Drinker had any jurisdiction of the subject matter, or of the person of Bruni. In the first place, does the statute of the United States of March 2, 1829, under which Justice Drinker assumed to act, apply equally to officers of this state and of the United States, or to those of the United States solely? In our judgment the act cannot be held to devolve any power upon the officers of the states, unless they are in express terms included in its provisions. The expression of the.

Ordered accordingly.