the testimony admitted by the commissioner | defendants have given a great deal of evi- "As respects the finding of probable cause, I have carefully considered the very extended briefs and arguments of counsel, and "The government, on the other hand, has have examined the voluminous evidence with given evidence tending to a contrary conclua view to ascertain whether there was com- sion, and it has shown beyond question that petent evidence before the commissioner suf- Captain Carter, the employee of the governficient in itself to sustain his finding of ment and the engineer in immediate charge probable cause. Under the rule above stated of the work on the government's behalf, had it is not for the judge, on an application for for several years immediately preceding the removal, to compare different parts of the contracts referred to in the indictment retestimony in order to determine their rela-ceived from the contractors continuously, tive weight, or to substitute his own judg-through his father-in-law, in many divisions ment for that of the commissioner, even of profits, one third of the final net proceeds though it might on the whole evidence be of each contract remaining for division different. By this, however, I do not mean among the chief contractors; and that this to be understood as expressing any opinion one third amounted in the aggregate to over whatsoever on the merits of the case. The $700,000. This, it is claimed, gives signifi-[255] oblige him to plead and stand trial; and to en- ings should be conducted arbitrarily, and withable him under the state statute to arrest the out any rule at all. Re Dana, 68 Fed. 886. proceedings in limine, if he can, by proving that "In making this provision for an observance of there is no probable cause for the accusation. the practice in use in the state where the ar That was the only 'issue' before the commis- rest is made, it may be reasonably presumed," sioner on this hearing." says Judge Brown in this case, "that the intention of the judiciary act was to prevent the hateful appearance of employing summary and arbitrary methods of removal, and to avoid creating prejudice against the new government which would be likely to be engendered throughcourses of procedure to which the people of the several states were not accustomed, and against which they had just successfully fought." The refusal of a committing magistrate to recognize an indictment as sufficient evidence of itself upon which to issue a warrant of commitment does not violate U. S. Rev. Stat. § 905, as respects the faith and credit to be given to "records and judicial proceedings of the courts of other states," as that statute does not apply, for the reasons, (1) that a grand jury is not a court; (2) that if it were, its proceedings, The question of the identity of an offender being cr parte and without notice to the defend- is a question of fact which a United States comant, are in no way binding upon him elsewhere; missioner has full jurisdiction to decide for and (3) that the indictment as a record even in the purpose of removal. Horner V. United the court where found is not evidence of any-States, 143 U. S. 207, 36 L. ed. 126, 12 Sup. Ct. thing more than the finding of the grand jury. Re Dana, 68 Fed. 886. "The warrant against the defendant in that jurisdiction," said Judge Brown, "is, indeed, based upon the action and the finding of the grand jury, of which the indictment is evidence, because they are each parts of one constitutional proceeding for bringing the accused to trial; but on the trial there the averments of the indictment are not the least evidence against the accused; nor are they primary legal evidence in any independent proceedings elsewhere." Evidence receivable on a hearing before a commissioner in proceedings for the removal of persons charged with crime to another district for trial is not to be strictly limited by the technical rules applicable upon the final trial. United States v. Greene, 108 Fed. 816; Re Dana, 68 Fed. 886. And the same precision and formality that are required in indictments are not required in the complaint before the commissioner. Hence, an averment that the city of Washington, where the offense is stated to have been committed, is within the exclusive jurisdiction of the United States need not be made in the preliminary proceeding for the purpose of bindIng the prisoner over for trial previous to his removal to Washington for trial. United States v. Price, 84 Fed. 636. Rep. 407. As has already been noted (see supra, III.), only probable cause, and not certainty of guilt, is required to justify removal. It was doubtless for this reason that Chief Justice Marshall on an application to commit for trial, where the offerse was said to have been completed, a person charged with treason in levying war against a nation with which the United States was at peace. refused to pass upon the defense that either the United States was actually at war with the foreign nation, or that the military expedition was dependent on war, and in the event of peace was to be converted into a settlement; and held that this was a question for the exclusive consideration of the jury. United States v. Burr, 2 Burr's Trials, 455, Fed. Cas. No. 14,694. And in the same case Chief Justice Marshall refused on such application to determine the question raised by a preliminary defense made in the nature of a plea of autrefois acquit because of the doubt in his mind whether the plea was good or not, but said that were it clear that such plea should prevail it would certainly be improper for him to grant the application. United States v. Burr, 2 Burr's Trials, 455, Fed. Cas. No. 14,694. V. Validity of removal warrants. The provision of the statute that the proceedings shall be "agreeable to the usual mode of A warrant of removal is not invalid because process against offenders in such state" em- it directs the prisoner to be held and delivered braces in New York the preliminary examina-over for trial for the larceny of a part only of tion usual in the state, including the taking of the property for whose larceny he was commitevidence, depositions, and the examination of ted by the commissioner. Price v. McCarty, 32 witnesses, and the duty of the magistrate in C. C. A. 162, 59 U. S. App. 578, 89 Fed. 84. finding probable cause; because, aside from this clause, there is no rule oh those subjects; and It cannot have been intended that the proceed A warrant of removal which directs the marshal to remove the offender to another district, to be tried in said district upon such counts in cance and meaning to many other facts in evidence showing a fraudulent and illegal combination between the defendants and Captain Carter to benefit themselves at the expense of the government, and to procure the allowance and payment of excessive and fraudulent bills by means of contracts fraudulently procured. York, and during the pendency of the pro-[256] such other objections as they might make to "A case presenting such circumstances is especially one that should be submitted to a jury trial. Nor need there be any apprehension that an impartial court and jury will not reach essential justice, or that, while guarding jealously the honor and interests of the government, they will not also appreciate the legitimate rights of the de-a true bill of indictment in their case, and fendants, the peculiar difficulties, risks, and hazards of such contract work, the excellence and merit of that which is well done, and the rights of the defendants by legitimate business methods to lessen competition and to secure as favorable contracts as they can; and determine fairly whether the contracts in question were fraudulent, or obtained by illegal methods, or by a conspiracy with the engineer in charge to abuse the opportunities of his position in order to despoil the government and obtain exorbitant prices for their common benefit. "Having found in the previous decision that the ninth and tenth counts of the indictment are good, whatever may be held as to the counts preceding them, the defendants should be ordered to be removed for trial, or to give bail for their due appearance." [108 Fed. S19.] An order was thereupon made and the warrant signed by the judge on May 28, 1901, for the removal of the defendants to the southern district of Georgia. On June 8. 1901, the defendants were surrendered by their bail to the custody of the marshal, and on that day they presented their petition to the circuit court of the United States for the southern district of New York for a writ of habeas corpus, setting out the foregoing facts and the order for removal, which they alleged to be illegal and in violation of their constitutional rights. They also alleged in their petition that they were not in the state of Georgia at the time of the filing of the indictment, nor had they been since that time, and that while they were in New the indictment now pending in said district as he can be legally tried upon, is not void for indefiniteness where there is at least one count in the indictment which is sufficiently specific. Horner v. United States, 143 U. S. 207, 36 L. ed. 126, 12 Sup. Ct. Rep. 407. "That your petitioners are informed and believe, that he now claims and insists that because of your petitioners' failure to appear as above required, that they are barred and estopped in that court from questioning the illegality and validity of said alleged grand jury. If this contention be sustained, then, unless this court hears and passes on the said questions, these petitioners will be tried on the alleged indictment in said court in Georgia, although the fact is that such indictment was never found by any legally organized grand jury, but was presented and filed in court by a body of men purporting to be a grand jury in whose selection and drawing every statute of the United States relating thereto was disregarded and set at naught." It was also stated in the petition that the petitioners were held for trial for an infamous crime, without the indictment of a grand jury and in violation of the rights secured to them by the Constitution of the United States; that notwithstanding the invalidity of the indictment and the other facts stated in the petition, the United States marshal for the southern district of New York detained the petitioners, and were about to remove them to the eastern division of the southern district of Georgia for trial upon the pretended indictment, and in pursuance of the proceedings had before the commissioner, and the warrant of removal issued thereupon by the district judge; that The power of the district judge to order a discharge upon denying an application for a warrant of removal to another district for trial is said to be a necessary implication from the statute. United States v. Lee, 84 Fed. 626; United States v. Brawner, 7 Fed. 88. And the only order that can be made on an VI. Right to discharge on denial of removal application for removal of a person held under warrant. In a number of cases the prisoner has been discharged on the denial of an application for a warrant of removal without invoking the writ of habeas corpus. Re Corning, 51 Fed. 205; United States v. Lee, 84 Fed. 626; United States v. Karlin, 85 Fed. 963; Re Wood, 95 Fed. 288. And in Re Wolf, 27 Fed. 606, the court said that on an application for a warrant of removal the prisoners, if they should not be so removed, are entitled to a discharge, either by habeas corpus or without it. commitment for removal, where a proper case And it is proper for the district judge to de- Re the detention of the petitioners and their removal in pursuance of said proceedings and warrant were without authority of law, [257] and that they were restrained of their liberty in violation of the Constitution of the United States, and that any further proceedings in pursuance thereof, or the further detention or imprisonment of the petitioners, would be unlawful. They therefore asked for a writ of habeas corpus to inquire into the lawfulness of their imprisonment. After a hearing upon the petition, the circuit court denied the application and from the order denying the writ the defendants appealed to this court, which appeal was allowed and the defendant admitted to bail pending its decision. Mr. David B. Hill argued the cause, and, with Messrs. L. Laflin Kellogg, Abram J. Rose, and Alfred C. Petté, filed a brief for appellants: It is always open to the prisoner to show that no offense against the United States has been committed, or that the indictment is bad in form, or that the offense charged cannot be legally tried in the district of which removal is sought, or that it is outlawed, or equally triable where the offender resides and is found. Re Buell, 3 Dill. 116, Fed. Cas. No. 2,102; It was also the right and the duty of the The courts of the United States have the right to interpose by writ of habeas corpus and discharge a prisoner when the proceed ings taken against him have violated, or would infringe upon, his constitutional rights. Ex parte Lange, 85 U. S. 163, 21 L. ed. 872: Ex parte Siebold, 100 U. S. 371, 25 L. ed. 717; Re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164: Ex parte Bain, 121 U. S. 1, 30 L. ed. 849, 7 Sup. Ct. Rep. 781; Ex parte Sawyer, 124 U. S. 205, 31 L. ed. 403, 8 Sup. Ct. Rep. 482; Re Snow, 120 U. S. 274, 30 L. ed. 658, 7 Sup. Ct. Rep. 556; Ex parte Nielsen, 131 U. S. 176, 33 L. ed. 118, 9 Sup. Ct. Rep. 672. If any constitutional immunity of the appellants was violated in the removal proceedings, or will be violated by their removal to the state of Georgia for trial, the application for the writ was improperly denied, and the order denying the same is reviewable by direct appeal to this court. See Act 1891, March 3, 26 Stat. at L. 826, chap. 517; Carter v. Roberts, 177 U. S. 496, 44 L. ed. 861, 20 Sup. Ct. Rep. 713. The offense with which these appellants are charged is an infamous crime. Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89. 5 Sun. Ct. Rep. 935; Mackin v. United States, 117 U. S. 348, 29 L. ed. 909, 6 Sup. Ct. Rep. 777; Ex parte Bain, 121 U. S. 1, 30 L. ed. 849, 7 Sup. Ct. Rep. 781. In the prosecution of infamous crimes this court has vigorously upheld the provisions of the Constitution respecting the necessity of a presentment or indictment by a grand jury as an absolute prerequisite to the jurisdiction of the court to put the accused upon his trial. Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935; Mackin v. United States, 117 U. S. 348, 29 L. ed. 909, 6 Sup. Ct. Rep. 777; Ex parte Bain, 121 Ú. S. 1, 30 L. ed. 849, 7 Sup. Ct. Rep. 781. The question of the legality of the grand jury should be decided by this court in this proceeding, and not left to be decided by the district court of Georgia upon the trial. Re Terrell, 51 Fed. 213; Pullman's Palace Car Co. v. Central Transp. Co. 171 U. S. 138, 43 L. ed. 108, 18 Sup. Ct. Rep. 808. habeas corpus before trial where it is made The prisoner will be discharged upon to appear that he cannot lawfully be tried for the offense with which he is charged. Re Loney, 134 U. S. 372, sub nom. Thomas v. Loncy, 33 L. ed. 949, 10 Sup. Ct. Rep. 584; Re Neagle, 135 U. S. 1, sub nom. Cunningham v. Neagle, 34 L. ed. 55, 10 Sup. Ct. Rep. 658; Boske v. Comingore, 177 U. 8. 459, 44 L. ed. 846, 20 Sup. Ct. Rep. 701; 182; Re Greene, 52 Fed. 104. People ex rel. Lawrence v. Brady, 56 N. Y. Rev. Stat. § 1014, this court has held that In proceedings for removal, under U. S. it is the duty of the court, on habeas corpus, not only to inquire into the question of jurisdiction, but also into the sufficiency of the indictment. Horner v. United States, 143 U. S. 207, 36 L. ed. 126, 12 Sup. Ct. Rep. 407. See also Re Greene, 52 Fed. 104. Messrs. Marion Erwin and Solicitor General Richards argued the cause and filed a brief for appellee: A certified copy of the indictment from the district court in Georgia was properly introduced in evidence. United States v. McKee, 4 Dill. 5, Fed. Cas. No. 15,687; United States v. Percheman, 7 Pet. 85, 8 L. ed. 616. A duly certified copy of an indictment is not only admissible, but has been held at least prima facie evidence of the facts alleged. United States v. Haskins, 3 Sawy. 262, Fed. Cas. No. 15,322; Re Alexander, 1 Low. Dec. 530, Fed. Cas. No. 162; United States v. Shepard, 1 Abb. (U. S.) 431, Fed. Cas. No. 16,273. Such certified copy is not inadmissible bccause it was signed in the name of the clerk by his deputy, and not by the clerk in per use in evidence in other states, as it is ob- | from the testimony offered that there is Embry v. Palmer, 107 U. S. 9, 27 L. ed. 348, 2 Sup. Ct. Rep. 25. The judge of the district court of the United States for the southern district of New York is as competent to determine whether the certificate to an indictment from the district court of the United States for the southern district of Georgia is in due form as would be the judge of the latter district. From these facts it is apparent that the question is not before us whether the finding of an indictment is in a proceeding under § 1014 of the Revised Statutes conclusive evidence of the existence of probable cause for believing the defendant in the indictment A certified copy of the indictment with guilty of the charge therein set forth. The evidence of its identity is sufficient for re-district judge in this case held that it was Mewster v. Spalding, 6 McLean, 24, Fed. Cas. No. 9,513. moval. Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544, 6 Sup. Ct. Rep. 291; Re Belknap, 96 Fed. 614; United States v. Haskins, 3 Sawy. 262, Fed. Cas. No. 15,322; Ex parte Alex ander, 1 Low. Dec. 530; United States v. Shepard, 1 Abb. (U. S.) 431, Fed. Cas. No. 16,273. not, and sent the case back to the commissioner, before whom evidence was thereafter taken upon the subject, and a decision arrived at after considering all the evidence in the case. We are not, therefore, called upon to express an opinion upon the question. Upon all the evidence taken before the commissioner he has found that probable cause existed. We think that a fair inter[257] *Mr. Justice Peckham, after making the pretation of the language used by the district above statement of facts, delivered the opin-judge in granting the application for the warrant of removal shows beyond question ion of the court: commissioner, the judge was of opinion that It will be noted that the proceeding lead-that, from the evidence taken before the ing up to the warrant for the removal of the defendants to Georgia for trial was inaugurated in the southern district of New York by the sworn deposition of an assistant of the United States district attorney for the southern district of New York, in When the judge refers to the testimony which deposition it was alleged that an in- taken before the commissioner, although he dictment had been found against the defend- does in terms say that he expresses no opinants in the United States district court in ion upon the merits, yet he states that, upGeorgia, a certified copy of which indict- on the evidence before him, it is a proper ment was attached to and made a part of the case to be submitted to a jury for trial. [259] deposition. Upon the written charge thus That is in effect a finding of probable cause, made, the United States commissioner in which is not necessarily a finding that the New York issued his warrant for the arrest persons charged are guilty. The meaning of the defendants, who upon being notified to be gathered from the language of the immediately appeared before him and an ex- judge is that while there is evidence on the amination was proceeded with. Upon this part of the government tending to show the examination the commissioner refused to re- guilt of the accused, there is also evidence ●ceive evidence offered by the defendants tend-on the part of the defendants tending to ing to show a want of probable cause, and held that the certified copy of the indictment found in the district court of Georgia was conclusive evidence of probable cause, and accordingly made an order committing the defendants to the custody of the marshal until a warrant for their removal should issue by the United States district judge for [258]the southern district of New York. Upon application to the district judge for such warrant he held that the indictment was not conclusive evidence of probable cause, and sent the case back to the commissioner (United States v. Greene, 100 Fed. 941) to hear evidence on that subject. On subsequent hearings before the commissioner evidence pro and con as to probable cause was given and also as to the drawing of the grand jury, and that officer decided that "after full and fair examination touching the charges in the annexed warrant named, it appears show their innocence, and that the determination of the question in such a complicated case should properly be left to a jury. He says that he has carefully considered the very extended briefs and arguments of counsel, and has examined the voluminous evidence, with a view of ascertaining whether there was competent evidence before the commissioner sufficient in itself to sustain his finding of probable cause, and he, in substance, finds there was, and grants a warrant for the removal of the defendants. This is perfectly consistent with the further statement made by him that he did not express any opinion whatsoever on the merits of the case. That is, he did not express an opinion whether upon all the evidence the defendants ought to be convicted or acquitted of the charge. He was not called upon to do so. It was sufficient, if all the evidence being taken into account, there existed such probable cause for believing the defendants The evidence which was taken before the commissioner, and which was before the district judge upon the question of the existence of probable cause, was not annexed to the petition, and forms no part of the proceeding before the circuit court upon the application for the writ of habeas corpus. Whether that evidence was or was not sufficient for the commissioner to base his action upon, or for the district judge to approve, was not a question before the circuit judge, and is not before this court. We must assume, in the absence of the evidence taken before the commissioner and approved by the district judge, that their finding of probable cause was sustained by competent evidence, bearing in mind also that on this [260] proceeding the court *would not in any event look into the weight of evidence on that question. It is urged, however, that the offense charged, and upon which defendants are to be removed, is that which is contained in the indictment only, and if the indictment be insufficient for any reason, that then there is no offense charged for the trial of which the defendants can properly be removed to another district. dictment there may be lacking some techni- Upon this writ the point to be decided is, whether the judge who made the order for the removal of the defendants had jurisdiction to make it, and if he had, the question whether, upon the merits, he ought to have made it is not one which can be reviewed by means of the writ of habeas corpus. Jurisdiction upon that writ in such a proceeding as this does not extend to an examination of the evidence upon the merits. The matter for adjudication is similar to that which obtains in cases of international extradition. In such case, if there is competent legal evidence on which the commissioner might base his decision, it is enough, and the decision cannot be reviewed in this way. Bryant v. United States, 167 U. S. 104, sub nom. Ex parte Bryant, 42 L. ed. 94, 17 Sup. Ct. Rep. 744. There must be some competent evidence to show that an offense has. been committed over which the court in the other district had jurisdiction, and that the It is not a condition precedent to taking action under § 1014 of the Revised Statutes that an indictment for the offense should have been found. Price v. McCarty, 32 C. C. A. 162, 59 U. S. App. 578, 89 Fed. 84; circuit court of appeals, second circuit, June, 1898. In this case there was a sworn charge prima facie showing the commission of an offense against the United States, cognizable by the district court of the United States for the southern district of Georgia. To substantiate the charge a certified copy of an indictment found in the Georgia court was produced, and in addition evidence was given before the commissioner which, as he found, showed probable cause for believing that the defendants were guilty of the offense charged in his warrant. If there were any uncertainty or ambiguity in the indict-defendant is the individual named in the ment, the evidence given upon the hearing before the commissioner may have cleared it up. We cannot assume that it did not, and, on the contrary, if such uncertainty in the indictment did exist, we must assume that the evidence did clear up such uncertainty, or otherwise the commissioner would not have granted his warrant for removal, nor would his decision have been approved by the district judge. The finding of an indictment does not preclude the government under § 1014 from giving evidence of a certain and definite character concerning the commission of the of fense by the defendants in regard to acts, times, and circumstances which are stated in the indictment itself with less minuteness and detail, and the mere fact that in the in charge, and that there is probable cause for believing him guilty of the offense charged. We do not think that under this statute the commissioner would be warranted in taking evidence in regard to the organization of the grand jury which found the indictment, as claimed by the defendants. The indictment is valid on its face; *purports to[262] have been found by a grand jury acting in fact as such at a regular term of a district court of the United States, presided over by one of its judges and hearing testimony in the ordinary way. In our opinion, such an indictment is prima facie good, and when a copy of it is certified by the proper officer. a magistrate, acting pursuant to § 1014 of the Revised Statutes, is justified in treating the instrument as an indictment found by |