tion or benefit of a malicious or corrupt judge, | for damages on account of what they may have

but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. How could a judge so exercise his office if he were in daily and hourly fear of an action being brought against him, and of having the question sub mitted to a jury whether a matter on which he had commented judicially was or was not relevant to the case before him?" Scott v. Stansfield, L. R. 3 Exch. 220.

done in the course of their official duties is Dawkins v. Rokeby, L. R. 8 Q. B. 255, 262, the judgment in which was affirmed by the [497 House of Lords. L. R. 7 H. L. 744, 754. The defendant, a general in the English army, was called before a court of inquiry, legally assembled to inquire into the conduct of the plaintiff, also an officer in the army. He made statements in evidence, and after the close of the evidence handed in a written paper (not called for by the court, but having reference to the subject of the inquiry) as to the conduct of that officer. An action was brought in respect to those statements, which was alleged to be both untrue and malicious. That case came before the queen's bench, in the exchequer chamber, upon a bill of exceptions allowed by Mr. Justice Blackburn, who had instructed the jury as matter of law that the action would not lie if the verbal and written statements complained of were made by the defendant, being a military officer, in the course of a military inquiry in relation to the conduct of the plaintiff, he being also a military officer, and with reference to the subject of that inquiry; and this even though the plaintiff should prove that the defendant had acted mala fide, and with actual malice, and without any reasonable or probable cause, and with the knowledge that the statements made and handed in by him were false. The court, all the judges concurring, sustained the correctness of this ruling, and held that the statements were privileged. "The authorities," it was said, "are clear, uniform, and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law." Lord Chancellor Cairns, in the House of Lords, said: "Adopting the expressions of the learned judges with regard to what I take to be the settled law as to the protection of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly upon all considerations of convenience and public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined on oath ought to be extended, and must be extended, to a military man who is called before a court of inquiry of this kind for the purpose of testifying there upon a matter of *military discipline con [498 nected with the army. It is not denied that the statements which he made, both those which were made viva voce and those which were judge, no jurymen nor witnesses, he said, We are of opinion that the same general "could discharge his duty freely if not pro- considerations of public policy and conventected by a positive rule of law from being ience which demand for judges of courts of harassed by actions in respect of the mode in superior jurisdiction immunity from civil suits which he did the duty imposed upon him, and for damages arising from acts done by them he contended that the position of the defend- in the course of the performance of their judiant manifestly required the like protection to cial functions, apply to large extent te be extended to him and to all officers in the official communications made by heads of ex

In Dawkins v. Paulet, L. R. 5 Q. B. 94, which was an action for libel brought by an officer of the army against his superior officer to recover damages on account of a report made by the latter in relation to certain letters of the former, the defendant claimed that what he did was done in the course of and as an act of military duty. The replication stated that the libel was written by the defendant of actual malice, without any reasonable, probable, or justifiable cause, and not bona fide or in the bona fide discharge of the defendant's duty as such superior officer. The case was 496] heard on *demurrer to the replication, and it was held by all the justices (Cockburn, Ch. J., only dissenting) that the action would not lie. The case was first considered in the light of the pleadings and the admissions of the demurrer. Mellor, J., said: "I apprehend that the motives under which a man acts in doing a duty which it is incumbent upon him to do cannot make the doing of that duty actionable, however malicious they may be. I think that the law regards the doing of the duty and not the motives from which or under which it is done. In short, it appears to me that the proposition resulting from the admitted statements in this record amounts to this: Does an action lie against a man for maliciously doing his duty? I am of opinion that it does not; and therefore upon the pleadings as they stand we might give judgment for the defendant." But, according to the report of that case, the Attorney General did not rest the defense on the effect of the admissions in the pleadings, but contended broadly that no action would lie against an officer of the army charged with duties such as those stated on the record, for the discharge of them. He likened the case to that of the judges of courts of law, to grand jurymen, petty jurymen, and to witnesses, against whom no action lies for what they do in the course of their duty, however maliciously they may do it, and claimed immunity for the defendant for the acts done in the course of his duty on the highest

grounds of policy and convenience. No made in writing, were relative to the inquiry."

same position." "There is," Mellor, J., said, "little doubt that the reasons which justify the Immunity in the one case do in great measure extend to the other."

An instructive case upon the general subject of the immunity of public officers from actions

161 U. S.

a

ecutive departments when engaged in the discharge of duties imposed upon them by law. The interests of the people require that due protection be accorded to them in respect of their official acts. As in the case of a judicial officer, we recognize a distinction between ac

785

Mr. Justice Harlan delivered the opinion of the court:

The defendant in error succeeded Mr. Vilas in the office of Postmaster General. The declaration in the present case is, in all material respects, like that in Spalding v. Vilas, 161 U. S. 483 [ante, 780]. For the reasons stated in the opinion in that case the judgment is affirmed.

Appt.,

0.

UNITED STATES.

(See S. C. Reporter's ed. 500-502,)

Variance between indictment and proof.

A variance between the indictment and the proof as to the day when the alleged perjury was committed is not ground for reversal of the judgment, where the perjury was not charged to have been committed in a record, deposition, or other paper, but in giving evidence on a trial which was accurately described.

tion taken by the head of a department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision. Whatever difficulty may arise in applying these principles to particular cases, in which the rights of the citizen may have been materially impaired by the inconsiderate or wrongful action of the head of a department, it is clear-and the present case requires nothing more to be determined that he can- JOHN MATTHEWS, Plf. in Err. and [500 not be held liable to a civil suit for damages on account of official communications made by him pursuant to an act of Congress, and in respect of matters within his authority, by reason of any personal motive that might be alleged to have prompted his action, for personal motives cannot be imputed to duly authorized official conduct. In exercising the functions of his office, the head of an executive department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may at any time become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as intrusted to the executive branch of the government, if he were subjected to any such restraint. He may have legal authority to act, but 499]he may have such *large discretion in the premises that it will not always be his abso- IN N ERROR to the Circuit Court of the lute duty to exercise the authority with which United States for the Southern District of he is invested. But if he acts, having author- New York to review a judgment of that court ity, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals. In the present case, as we have found, the defendant, in issuing the circular in question, did not exceed his authority, nor pass the line of his duty as Postmaster General. The motive that impelled him to do that of which the plaintiff complains is therefore wholly immaterial. If we were to hold that the demurrer admitted, for the purposes of the trial, that the defendant acted maliciously, that could not change the law.

The judgment of the supreme court of the District of Columbia is affirmed.

[No. 778.]

Submitted March 3, 1896. Decided March 16,

1896.

convicting John Matthews of the crime of per-
jury. Affirmed.
See same case below, 68 Fed. Rep. 880.

Statement by Mr. Justice Peckham:

The plaintiff in error was indicted in the cir cuit court of the United States for the southern district of New York for the crime of perjury, alleged to have been committed upon the trial of an action between the United States and one John Matthews, impleaded with others. The trial of the action in which the perjury was alleged to have been committed was had in the circuit court for the southern district of New York, and Matthews, plaintiff in error, was sworn upon the trial, and the indictment in this case alleges that he committed the perjury set forth in the indictment upon that trial "before the said judge and jury, to wit, on the 7th day of June, in the year of our Lord one thousand, eight hundred and ninety-four, and within the district aforesaid and within the jurisdiction of this court." For the purpose of proving the testimony of plaintiff in error, taken upon the original trial in which the perjury was alleged to have been committed, and by stipulation of counsel for the parties in this case, the minutes of the stenographer were read upon this trial, and from those minutes it appeared that the testimony alleged to be false was given by plaintiff in error upon the 6th instead of the 7th of June. The plaintiff in error was convicted. His counsel then made a motion for a new trial and in arrest of judgement, both of which motions

sand

As to suficiency of evidence to convict of perjury. see note to United States v. Wood, 10: 527.

501]were *denied. Upon the trial the objec-we concur entirely in the conclusion reached tion was raised by counsel for defendant that by him. 68 Fed. Rep. 880.

there was a fatal variance existing between the indictment and the proof as to the time when the perjury was committed, and that question was reserved for the purpose of being heard on the motion for a new trial, in case the plaintiff in error was convicted. The motion for a new trial having been made on that ground and denied, the defendant below obtained a writ of error from this court, and the case is now here for review.

Messrs. W. J. Townsend and Chas. A. Hess for plaintiff in error.

Mr. Edward B. Whitney, Assistant Attorney General, for defendant in error.

The judgment must be affirmed.

PLUTARCO ORNELAS, Consul of the Re

public of Mexico, Appt.,

v.

INEZ RUIZ, JESUS GUERRA, and JUAN

DUQUE.

(See S. C. Reporter's ed. 502-512.)

Authority of consul-appeal-extradition proceedings, not reviewable on habeas corpusjudgment, when final.

Mr Justice Peckham delivered the opinion 1. A consul of the Republic of Mexico, who makes of the court:

a complaint for the extradition of fugitives from that country, must by virtue of his official character be considered to have authority to prosecute an appeal on behalf of his government from a decision discharging the person accused.

The only point suggested by counsel for plaintiff in error upon which to obtain a reversal of the judgment is the fact of the variance between the indictment and the proof as to the day when the alleged perjury was 2. Where the construction of a treaty between

the United States and Mexico is drawn in question in a final order of the district court discharging persons from custody in extradition proceedings, an appeal may be taken directly to this court.

3. The decision by a commissioner in favor of the extradition of persons charged with murder, arson, robbery, and kidnapping during a raid by 130 or 140 men from Texas into Mexico, in which they attacked about 40 Mexican soldiers, killed and wounded some, assaulted private persons, burned houses, and carried away property, cannot be reviewed by writ of habeas corpus on the ground that the offenses were purely political, even if there is some evidence that their purpose was to fight against the government.

committed. We think the decision of the court below was clearly right. The cases cited by counsel for plaintiff in error, in regard to the necessity for specific and accurate proof of the very day upon which the perjury was alleged to have been committed, were those in relation to records, depositions, or affidavits which were to be identified by the day on which they were made or taken. Under such circumstances a misdescription of the date of the particular record, deposition, or affidavit has been sometimes held fatal on the ground, substantially, that it has not been identified as the particular one in which the perjury is alleged to have been committed, because the

record or other paper itself bears one date and 4. The judgment of the magistrate rendered in

the indictment describing it bears another. It is not the same record, and therefore there is variance, which has been held fatal to a conviction.

good faith on legal evidence that the accused is guilty of the act charged, and that it constitutes an extraditable crime, cannot be reviewed on the weight of evidence, and is final for the purposes of the preliminary examination unless palpably

In this case there was no record which was contradicted by the proof given upon this trial. The trial was described accurately, the parties 502] to it, the court in which it took place, the Argued and Submitted January 13, 1896. Do

erroneous in law.

[No. 622.]

cided March 16, 1896.

term and the time at which it was tried, and the only difference between the allegation in the indictment and the proof in the case is that PPEAL from a final order of the District during this trial, which occupied several days, A Court of the United States for the Westthe plaintiff in error swore on the 6th of June ern District of Texas discharging upon habeas instead of on the 7th, as alleged in the indict- corpus Inez Ruiz et al., petitioners, from the ment, to the matter which was alleged to be custody of the marshal in extradition proceedfalse. The date upon which the evidence was ings. Reversed, and case remanded for further given, which was alleged to have been false, proceedings. appeared by the stenographer's minutes, who took the evidence on the trial, to have been the NOTE. As to extradition from another state; right 6th of June. This is no record, and it is not to try person extradited for a different crime from within the principle upon which the cases re that for which he was surrendered; who are fugitives lied upon by counsel for plaintiff in error were from justice; character of offense; demand for arrest decided. Such a variance as appears in this and delivery of fugitives; surrender of fugitive,case is not material. Rex v. Coppard, 3 Car. see note to Cook v. Hart, 36: 934. & P. 59; Reator v. People, 32 Mich. 484; As to extradition of persons accused of crime, on People v. Hoag, 2 Park. Crim. Rep. 1. It will demand of foreign governments, see note to Ken

be seen that the time was stated under a
videlicet in this indictment, although that fact is
probably not very material. The opinion writ-
ten by the learned judge in
for a new trial and in arrest of judgment says
denying the motion
all that is necessary to be said in this case, and corpus, see note to Ex parte Carll, 27: 288.

tucky v. Dennison, 16: 717.

As to when habeas corpus may issue, and when not, and from what courts, and by what judges; what may be inquired into by writ of, see note to United States v. Hamilton, 1: 490.

161 U. S.

As to what questions may be considered on habeas

787

505] *would justify his or her apprehension I have been held in the place where the offense was committed in the condition of slaves, the same being expressly forbidden by the Constitution of Mexico; nor shall the provisions of the present treaty be applied in any manner to the crimes enumerated in the 3d article committed anterior to the date of the exchange of the ratifications hereof.

"Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this treaty."

Messrs. J. H. McLeary, John W. Foster, S. F. Phillips, and F. D. McKenney for appellant.

Messrs. T. J. McMinn and W. H. Brooker for appellees.

Mr. Chief Justice Fuller delivered the opinion of the court:

The Republic of Mexico applied for the extradition of these petitioners by complaints made 507]under oath by its consul at*San Antonio, Bexar county, Texas, under U. S. Rev. Stat. § 5270. The official character of this officer must be taken as sufficient evidence of his authority, and as the government he represented was the real party interested in resisting the discharge, the appeal was properly prosecuted by him on its behalf. Mali v. Hudson County Common Jailkeeper ("Wildenhus' Case"), 120 U. S. 1 [30: 565]. As the construction of the treaty was drawn in question the appeal was taken directly to this court and the district court rightly required petitioners, under rule 34, to enter into recognizance for their appear ance to answer its judgment.

The legislative provisions on the subject of extradition are to be found in U. S. Rev. Stat. tit. 66, §§ 5270-5280. Section 5270 provides: "Whenever there is a treaty or convention for extradition between the government of the United States and any foreign government, any justice of the supreme court, circuit judge, district judge, commissioner authorized so to do by any of the courts of the United States, or judge of a court of record of general jurisdiction of any state, may, upon complaint made under oath, charging any person found within the limits of any state, district, or territory with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence suffi

provisions of the Revised Statutes in respect of the issue of writs of habeas corpus and certiorari by the courts and judges of the United States (U. S. Rev. Stat. §§ 751-761), and the acts of Congress from which those sections were brought forward, and pointed out that the general language used is as applicable to a case where the party is in custody under process issued on a final judgment of a court of the United States on a conviction on an indictment as it is to a case where a party is in custody under any other process; that it could not be successfully contended that these provisions have the effect to authorize a court of the United States, which has no direct power given to it to review the final judgment of another court of the United States in a given case, to review such judgment on the merits under the indirect authority of a writ of habeas corpus; and that, therefore, as the statute in respect of extradition gives no right of review to be exercised by any court or judicial officer, but the magistrate is to certify his findings on the testimony to the Secretary of State that the case may be reviewed by the executive department of the government, the court issuing the writ may "inquire and adjudge whether the commissioner acquired jurisdiction of the matter by conforming to the requirements of the treaty and the statute; whether he exceeded his jurisdiction; and whether he had any legal or competent evidence of facts before him on which to exercise a judgment as to the criminality of the accused. But such court is not to inquire whether the legal evidence of facts before the commissioner was sufficient or insufficient to warrant his conclusion."

By repeated decisions of this court it is settled that a writ of habeas corpus cannot perform the office of a writ of error, and that, in extradition proceedings, if the committing magistrate has jurisdiction of the subjectmatter and of the accused, and the offense charged is within the terms of the treaty of extradition, and the magistrate, in arriving at a decision to hold the accused, has before him competent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the *purposes of extradition, such de-[509 cision cannot be reviewed on habeas corpus. Oteiza y Cortes v. Jacobus ("Re Oteiza y Cortes"), 136 U. S. 330 [34: 464]; Benson v. McMahon, 127 U. S. 457 [32: 234]; Fong Yue Ting v. United States, 149 U. S. 714 [37: 913].

As the English extradition act of 1870 (33 & 34 Vict. chap. 52), extracts from §§ 3 and 11 of which are given below,f contemplates an

cient to sustain the charge under the provisions independent examination on habeas corpus in

of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made."

In the extradition case of Re Stupp, 12 Blatchf. 501, Mr. Justice Blatchford, then dis508] trict judge, carefully *considered the

every case, if applied for, as in effect part of the proceedings, it has been held that the courts have power to go into the whole matter under the writ so provided for. Re Castioni [1891] 1 Q. B. 149; Re Arton [1896] 1 Q. В.

13. "A fugitive criminal shall not be surrendered

if the offense in respect of which his surrender is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate, or

the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a

view to try or punish him for an offense of a political character."

11. "If the police magistrate commits a fugitive

criminal to prison, he shall inform such criminal