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in the police court charging Charles A. Dana, a citizen of New York and the editor of the New York "Sun," with criminal libel in the District of Columbia. Mr. Dana not being found in the District, a complaint was made before a United States commissioner in New York, who issued a warrant on which Mr. Dana was arrested and committed, and an application was made to the district judge for a warrant to remove him to the District of Columbia to be tried on the information. Judge Blatchford held that so much of the act of 1870 as provided for the trial of criminal libel on an information and without a jury was repugnant to article 3 and to amendment 6 of the Constitution, and refused to order him to be delivered up to be tried in what was deemed to be an unconstitutional manner. It was not doubted that section 33 of the act of 1789 applied to the removal of a person to the District of Columbia.2

The question of such removal came before Judge Dillon in 1875, in the United States circuit court for the eastern district of Missouri, in the case of Augustus C. Buell, who also was sought to be removed to the District of Columbia on a charge of criminal libel. Judge Dillon held that section 1014 of the Revised Statutes covered the case. The question involved in the case of Mr. Dana was not raised, since Mr. Buell was indicted in the supreme court of the District. The prisoner, however, was discharged on the ground of the insufficiency of the indictment. It charged that the libel was composed and written by the defendant in the District of Columbia in the form of a newspaper article, and printed in the "Detroit Free Press," in the State of Michigan, and afterwards, to wit, on the day and year aforesaid, was published by him in the District of Columbia. Judge Dillon said that it was only necessary for the pleader to have averred that the defendant did compose and publish the libellous matter, setting it out, within the District of Columbia. He said that it seemed doubtful whether the indictment intended to charge a substantive publication by the defendant in the 1 18 Stat. at L. 193.

2 Matter of Charles A. Dana, 7 Ben. 1; 1873.

District of Columbia, or any publication in that District, except so far as composing a libel there for publication in a newspaper elsewhere was in law a publication in the District; and this, without more, would not be a publication in the District. The prisoner was therefore discharged. Judge Dillon said that "mere technical defects in an indictment should not be regarded; but a district judge who should order the removal of a prisoner when the only probable cause relied on or shown was an indictment, and that indictment failed to show any offence against the laws of the United States, or showed an offence not committed or triable in the district to which the removal is sought, would misconceive his duty and fail to protect the liberty of the citizen." 1

§ 540. Is a Warrant of Removal necessary in Federal Cases? -It has been seen that in Re Alexander,2 Judge Lowell suggested, but did not decide, the question whether, where a person has been indicted in one district, the court of that district may issue a warrant to arrest him anywhere in the United States. It has been twice held by the Department of Justice that a warrant may be so issued. The first case in which this opinion was expressed was that of Robert B. Randolph, who, in 1833, because of his dismissal from a lieutenancy in the navy, committed an assault upon President Jackson, within the jurisdiction of the courts of the District of Columbia. It having been ascertained that Randolph had subsequently gone into Virginia, a question arose as to his arrest, and was referred to the Attorney-General of the United States for an opinion. In his opinion, rendered May 14, 1833, the Attorney-General, Taney, afterwards Chief Justice, advised that the power of arrest given by section 33 of the act of 1789 was conferred in general terms, and that, so far as respected a judge or justice of the United States, the power

1 In re Buell, 3 Dill. 116, 120. A note of the reporter states that Mr. Buell was again arrested on another indictment found in one of the courts of the District of Columbia, and was discharged by Treat, J., in the circuit court, on habeas corpus, on the ground that the indictment was found by a grand jury of a court having no jurisdiction of the case.

2 Supra, § 539.

was not even confined to his district or circuit, but that his warrant would run throughout the United States. No action, however, appears to have been taken on this opinion, since no prosecution against Randolph was instituted.2

The question of arrest again came before the Department of Justice in the case of Appleton Oaksmith, in 1864. The facts in the case are that on December 8, 1864, Richard H. Dana, Jr., then United States attorney at Boston, wrote to Mr. Seward that he had trustworthy information that Oaksmith, who had been convicted in the circuit court in Massachusetts of having fitted out a vessel for the slave trade, but who had escaped from jail pending sentence, was in New Orleans. He enclosed a certified copy of the record in the case, together with the presentment of the grand jury respecting the escape, and requested that the government secure the arrest of Oaksmith, if possible. Accompanying the letter of Mr. Dana was also a statement made by Mr. Clifford, the clerk of the circuit court, enclosing a copy of the indictment. The indictment was found in the district court on December 3, 1861, and on May 8, 1862, was ordered to be remitted to the next term or session of the circuit court for trial. The trial took place at the May term of the latter court, 1862, and resulted in conviction. But, at the time assigned for sentence, Oaksmith, having escaped, could not be produced, and the case was continued from term to term, and was in that condition when the letter of Mr. Dana was written. Upon the receipt of this letter Mr. Seward referred the papers for advice to the Department of Justice. On December 10, 1864, Mr. J. Hubley Ashton, Acting Attorney-General, citing the opinion of Attorney-General Taney in Randolph's case, said: "I am of opinion that either judge of the circuit court of the United States for the district of Massachusetts has authority, under the act of September 24, 1789, section 33 (1 Stats. 91,) to issue a warrant for the arrest of Oaksmith; and that under such a war

1 2 Op. 564.

2 3 Parton's Life of Andrew Jackson, 488. It is understood that the President refused to have the case prosecuted, and a search of the records of the District of Columbia fails to disclose the institution of any proceedings.

rant he may be lawfully arrested anywhere in the United States." Mr. Ashton further said:

"There is another procedure, however, that may be resorted to under the statute with a view to the same end, which it may be well, perhaps, to mention in this connection. Any justice of the peace, or other local magistrate of New Orleans, as well as any United States commissioner, if there be one there, has jurisdiction under the act of 1789, to arrest Oaksmith and commit him to answer the demands of the court before whom he was convicted; and on such commitment being made, it will be the statutory duty of the United States district judge at New Orleans' seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender' to Boston.

"Inasmuch, however, as under the opinion of the late Chief Justice, the authority for Oaksmith's arrest at New Orleans, upon a warrant issued either by Judge Clifford or Judge Sprague, at Boston, is perfectly clear, I should suppose the government would have no difficulty in adopting that course, and applying at once to one or the other of those judges for the necessary process."

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How far the opinion given by Mr. Ashton was acted upon, it is now impossible with certainty to say. I am, however, informed by Mr. Stetson, clerk of the circuit court, that on December 23, 1864, a bench warrant for the arrest of Oaksmith was issued upon the indictment, but was never returned. Another bench warrant was issued March 9, 1865, but this also was not returned. Mr. Stetson was, therefore, unable to furnish a copy of either of the warrants. On November 9, 1872, Oaksmith was pardoned by the President, and on May 28, 1873, a nolle prosequi in the case was entered.2

1 11 Op. 127.

:

2 The writer is indebted to Mr. Stetson for the following letter : OFFICE OF CLERK OF THE U. S. CIRCUIT COURT, DISTRICT OF MASSACHUSETTS.

HON. J. B. MOORE,

Third Assistant Secretary of State,

Washington, D. C.,

BOSTON, Aug. 15, 1890.

DEAR SIR, Your favor of the 15th instant is received.

The bench warrants, to which I referred in my letter of the 11th instant, as

It is undoubtedly the general impression that where an offender against the laws of the United States is found in a district other than that in which the offence was committed, a warrant must be obtained from the judge of such other district for his removal; and the practice is in accordance with this impression. It is, however, by no means clear, either upon the language of the statute or upon the reason of the matter, that it was intended to establish as between the various artificial districts of the United States a system analogous to that of extradition, or to that of the rendition of fugitive offenders against the laws of the several States. Power is

issued Dec. 23, 1864, and March 9, 1865, for the arrest of Appleton Oaksmith were issued in the case of an indictment found against him in 1861, and upon which he was convicted, but escaped before sentence. It was in this case that a nolle prosequi was entered May 28, 1875, after Oaksmith had been pardoned by the President. Our dockets and records disclose no other case against Oaksmith. These bench warrants were never returned. It is not customary to keep a copy of a warrant when issued, and as these warrants have not been returned I cannot furnish a copy. I am unable to say whether these bench warrants were ordered by Judge Clifford of the Supreme Court, or Judge Sprague of the district court, but think it must have been Judge Clifford, as Judge Sprague did not act in the circuit court for some time previous to his resignation, and the appointment of his successor, Judge Lowell. Judge Lowell filed his commission as District Judge, March 21, 1865. I believe these warrants were directed to the "Marshal of the District of Massachusetts, or either of his deputies," as I have never known a bench warrant to be issued in any other form. I inclose a blank warrant, such as has always been used in this district. This form is altered to suit the special case, and I have no doubt the Oaksmith warrants set forth the facts correctly. I have always supposed that the use made of a warrant, where the defendant “may be found" (see R. S., sec. 1014), is as a basis for an application for the arrest of the defendant in the State where found, and "his removal to the district where the trial is to be had." But this is the question I understand you have before you to decide.

There appear to have been no proceedings upon the issuing of these Oaksmith warrants, at least, I have no record of any, and, generally speaking, there are no proceedings of record in such cases. The district attorney asks orally for a warrant, and the presiding judge directs it to issue and the clerk issues it. Usually the docket entry is, "Warrant ordered and issued." In the Oaksmith case the docket entries are,

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