sum of $4,200, and such other sum as the complainant might be indebted to this defendant." Again, there is no proper jurat to the answer in this case-the answer appears to have been "sworn to and subscribed" before a proper officer; but it is submitted that this cannot, by correct chancery practice, be taken as a sufficient jurat (1) Harrison's Chan. Prac. 218; 1 Turner and Venable's Chan. Prac. 544); there is not that certainty as to what the deponent swears to, whether of his knowledge or of his belief (9 Cranch, 160); so that an indictment for perjury might be sustained if the deponent swore falsely. If this position be correct, then the answer in this case is, as in the case in 5 Peters, 99, merely tantamount to the general The defendant made the indebtedness of Parish, upon which the judgment was obtained, a substantive allegation in his answer; the onus probandi was with him to prove these allegations, and undoubtedly if he had proved his claim the Chancellor would have decreed payment in accordance with equity and justice. But when he neglected to do so, having ample time and opportunity, and being presumed to know his legal rights, and allowed the cause to be heard by the court without the shadow of any such proof, the fair and just inference is that he could not prove any further indebtedness against Parish, especially when Hamilton's testimony shows that the books of account of Gear were produced on the original settlement, issue at law, and the material averments of the and they then presented no such indebtedness; bill, so far as they are denied by the answer, ❘ but, on the contrary, all parties appeared satisare fully proved by Hamilton and Turney, and fied that $4,200 would cover the whole claim. sustained by every reasonable deduction from the circumstances. *Mr. Justice Nelson delivered the [*175 But in relation to the second question pre-opinion of the court: sented by this cause, which is as to the nature We are unable to discover any foundation for In the Matter of NICHOLAS LUCIEN pursuant to the provisions of the convention METZGER. and extent of the relief to be extended, it is submitted that the main relief sought by the 174*] complainant, is the *cancellation of a deed. The bill, however, prays for a discovery and general relief, and the weight and current of authority is, that when equity obtains cognizance for the purpose of discovery and injunction it will retain the cause in order to do ample justice in cases such as this, where a matter of account is involved. 1 Story's Eq. Jurisp. sec. 64; 2 Johns. Cases, 431; 3 Conn. 141; 10 Johns. 595; 17 Johns. 388; 12 Peters, 188. It was no sufficient reason for dissolving the injunction, that Gear afterward offered to give up, release, or cancel the mortgage; the fraud or imposition had been then completed. His faith had been violated. The injury to Parish was then inflicted. His damage may have been suffered. He had been compelled, by Gear's own conduct, to bring him into a court of equity. Being there, Gear was in no wise injured, he had the fullest and fairest right and opportunity to claim his demand, and if just have it allowed. The relief given in this case should therefore go farther than the cancellation and pass upon and decide the unsettled account between the parties. If there was, as Gear understood and recollected, an unsatisfied balance charged on the mortgage, that very question was presented for the consideration of the court; as the bill prays to have "the mortgage indenture cancelled, on praying the balance of the mortgage money, if any," etc. The account between the parties was then fairly presented to the court. The appellant had ample time and opportunity to sustain his account, if any he had, to show that the balance claimed was omitted by mistake or otherwise in the settlement of their accounts in 1836, when the mortgage was given to secure the full sum claimed, and more; but Gear did not offer any evidence to prove the balance of his account. Besides, the account on which the judgment was confessed was very properly, under the circumstances, to be reviewed; it was, according to the testimony of Turney, a judgment upon terms, that is, "any errors in the account sued on would be corrected by Gear." the decree of the court below. The pleadings and proofs narrowed the question down to the simple inquiry as to the force and effect of the judgment between the parties, which had been rendered upon confession. The answer appears to have removed all further complaint about the refusal of Gear to cancel the mortgage and disencumber the premises, as the subject is not carried into, nor made a part of, the decree. That is confined to the order enjoining the defendant, his agents and attorneys, perpetually from collecting the judgment. The sole question, therefore, is, whether or not, upon the pleadings and proofs, the appellant is justly entitled to enforce the payment of this money. The bill of complaint admits, and the answer reiterates the admission, that the mortgage was executed to secure the payment of an unadjusted balance of accounts arising out of extended business transactions. The exact sum being, at the time, unascertained, an amount was agreed upon, and carried into the mortgage, supposed to be large enough to cover any balance that might be found due. Neither party was to be concluded by the mortgage, or the amount agreed upon. The actual indebtedness was to depend upon a future settlement of the accounts. The proofs confirm this view, and further establish, that the judgment was confessed voluntarily and advisedly, for a balance ascertained, and claimed by Gear to be due over and above the mortgage; and that the only reservation made, at the time, was the privilege of correcting errors in the adjustment of the accounts, if any should be made to appear thereafter. The judgment was not given, as in the case of the mortgage, for an unascertained balance; and therefore a security, simply, for whatever sum the plaintiff might thereafter show to remain due and unpaid. A specific sum was claimed, as the true balance of the accounts, and a suit threatened. The judgment was confessed for this sum, subject to the right of Parish to reduce the amount. Failing or omitting to do this, the whole amount was collectible. The burden lay upon him to show the errors, if any; that he assumed, according to the very terms upon which he consented to confess the judgment; and as no errors were shown, or are even pretended, in the case before us, it is clear the plaintiff is entitled to the whole amount of his judgment and to execution for the same; and that the court below erred in entertaining the bill and awarding the injunction. We shall therefore reverse the decree of the court below, with costs, and remit the proceed ings, with direction to dissolve the injunction, and dismiss the bill with costs of suit. Order. This cause came on to be heard on the tran176*] script of the record *from the Supreme Court for the Territory of Wisconsin, and was argued by counsel; on consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Supreme Court in this cause be, and the same is hereby reversed with costs; and that this cause be, and the same is hereby remanded to the said Supreme Court, with directions to that court to dissolve the injunction in this case, and to dismiss the bill of the complainant with costs of suit. "Wherefore, your petitioner prays that a writ of habeas corpus may issue from this honorable court, to be directed to the Marshal of the Southern District of the State of New York, or to such other persons as may hold or detain your petitioner under and by virtue of said order, commanding him or them to have the body of your petitioner before this honorable court, at such time as in said writ may be specified, for the purpose of inquiring into the cause of commitment of your petitioner, and to do and abide such order as this honorable court may make in the premises. "And your petitioner will ever pray, etc. "Metzger." *"Sworn to before me, this 20th day [*177 of January, 1847. "George W. Morton, "In the Matter of Nicholas Lucien "This case having been heard before me, on requisition through the diplomatic agents of the French government that the said Metzger be apprehended and committed for the purpose of being delivered up as a fugitive from justice, Extradition-this court no jurisdiction to issue writ of habeas corpus to inquire into cause of commitment of fugitive from justice by warrant of district judge to await President's order under convention with France. The treaty with France, made in 1843, provides for the mutual surrender of fugitives from justice, in certain cases. Where a district judge, at his chambers, decided that there was sufficient cause for the surrender of a person claimed by the French government, and committed him to custody to await the court has no jurisdiction to issue a habeas corpus for the purpose of reviewing that decision. order of the President of the United States, this M R. Coxe moved for a habeas corpus, according to the following petition, which he read, and also the decision of the judge below: "To the Honorable, the Justices of the Supreme Court of the United States: respectfully sheweth, That he is restrained "The petition of Nicholas Lucien from his liberty, and is now a prisoner in jail, and under the custody of the Marshal of the Southern District for the State of New York, and that he has been committed to such jail and custody, and is now confined and detained therein, under and by virtue of a warrant and order of the Hon. Samuel R. Betts, District Judge for the Southern District of New York, as an alleged fugitive from justice, pursuant to the provisions of the convention signed between the United States and the French government, on the 9th of November, 1843. "That annexed hereto is a copy of the order, under and by virtue of which your petitioner has been apprehended and committed and is now detained in custody. NOTE. As to habeas corpus, when may issue and from what courts and judges; and what may be inquired into on, see note to 1 L. ed. U. S. 491. In extradition cases, see note to 34 L. ed. U. S. 464. signed between the United States and the French government on the 9th of November, 1843: "And exceptions having been taken by the counsel of the said Metzger, in his behalf, to the competency of a judge of the United States to take cognizance of the subject matter, and to the sufficiency of the evidence to justify any judicial action under the treaty: "And these exceptional objections being fully argued before me by Messrs. Blunt and Hoffman, of counsel for Metzger, and by Messrs. Tillon and Cutting in support of the requisition, and by Mr. Butler, United States Attorney, on the part of the United States (in respect to the jurisdiction of the judge, and the period the treaty went into operation): "I find and adjudge, that a judge of the United States has competent authority, under the laws of the United States now in force, te take cognizance of this case, and to order the apprehension and commitment of the accused, pursuant to the provisions of the said treaty. "I further adjudge, that the said treaty took effect and went into operation on and from the day of the signature thereof. "I further adjudge, that the laws of France are to determine the constituents of the crime of forgery, or 'du faux,' of which Metzger is accused, and that the facts in evidence adequately prove the commission of that crime by him in France, since the date of the treaty. "I further find and adjudge, that Metzger is, within the meaning and description of the treaty, a person accused, 'individu accusé,' of the crime of forgery, or 'du faux,' named in the treaty, and therefore subject to apprehension and commitment under our laws, pursu ant to the provisions of the treaty. "And I find and adjudge, that the evidence produced against the said Metzger is sufficient in law to justify his apprehension and commitment on the charge of forgery, had the crime been committed within the United States. Mr. Coxe, for the motion: In conveying the intimation that the court would hear an argument on behalf of the petitioner, no suggestion was thrown out as to the points to which counsel were desired to address themselves under these circumstances. What fell from the bench conveyed merely the idea that doubts were entertained by the court, but it conveyed no intelligence as to the character of these doubts, to what part of the case they extended, or whether they embraced the substantial merits of the petitioner's case, or were limited to the form and language in which the application was presented. Had the posture of the case permitted the court to adopt a practice which has on many occasions heretofore prevailed when similar applications have been made, and grant a rule upon the United States, or those who represent the French government, to show cause why the prayer of the petitioner should not be The petition, then, alleges, that the party on whose behalf and in whose name it is presented is now in actual confinement in jail, in the custody of the marshal of the Southern District of New York, by whom he is thus held and restrained by virtue of an order or warrant of commitment, issued and signed by the Hon. Samuel R. Betts, District Judge of the Southern District of New York. It appears that this warrant of commitment is a process utterly unknown to the common law or statute law of the United States. It is not for the purpose of bringing the accused to trial before any court of the Union, for any offense committed against the laws of the United States, or triable before any of its courts; it is not for the purpose of enforcing any responsibility in the shape of a debt due to any creditor, for the violation or breach of any contract, or to answer to any allegation of a tort of which those courts have cognizance; nor is it in the nature of an execution to compel the prisoner to respond to any process in the nature of an execution upon any judgment rendered against him by any court of the United States, or in the nature of an attachment for any contempt committed against such tribunal. All this is fully set forth in the petition, and in the order of commitment annexed to it. The object, therefore, of the writ now sued for is, to enable this court to pronounce its judgment upon the lawfulness of such an imprisonment, and upon the authority under which it has been made. The simple fact that such imprisonment exists under color and pretense of right presents a prima facie case warranting the application now made, and the language of the Constitugranted, it would have relieved his counsel from ❘tion and statutes of the United States, taken in much embarrassment. The grounds upon connection with the reiterated judgments of which the appucation was to be resisted would have been distinctly announced, and full opportunity would have been afforded to meet, and, if practicable, to answer them. In the situation, however, in which the case then stood, ignorant whether either government felt any such interest in the proceeding as would induce it to intervene by a direct opposition to the motion which was submitted, it would scarcely have been proper for me to have suggested, or for the court to have sanctioned, the adoption of such a course. At the same time, the appearance of counsel to resist the application only augments the difficulties of the position I occupy. Whatever may have been the origin of the doubts entertained on the bench, it by no means follows that the learning and abilities of counsel may not multiply and increase the number, as well as weight, of these objections. Placed, therefore, in this predicament by the very nature of the case, it imposes upon me the necessity of pursuing a course between two opposing difficulties of neither undertaking to anticipate, and attempting to answer by anticipation, the views and arguments of my learned friends, or of failing to exhibit a prima facie case at least calling for the interposition of this court. 179*] *Reserving, therefore, the privilege of answering the objections which may be urged against my application, I proceed briefly to state the grounds upon which reliance is placed to sustain it. this court asserting its power, and actually exercising the jurisdiction and authority now invoked, would seem clearly to establish prima. facie a right in the petitioner to have the benefit of this high prerogative writ. If there is any ground of objection, growing out of the circumstances of the case, which destroys this prima facie presumption as to the facts, they are to be found in the peculiar characteristics of those circumstances which attend the arrest of the petitioner; if any to meet the legal authorities upon which we rely, they must in consequence of these circumstances be held inapplicable to the case under consideration. The points which are thus presented for the adjudication of this court are: 1. Whether the facts as presented exhibit a proper case for the awarding of a writ of haveas corpus. 2. Whether, if such be the case, this court has authority and jurisdiction over it. *1. As to the facts. It is understood [*180 that an application was made to the executive by the minister representing the French government, for the apprehension and delivery of the petitioner. This application was declined, on the ground that no such power resided in that branch of the government, and the French government was referred to the judicial department. In declining itself to act without farther legislative authority, I conceive the executive tive rightly rightly judged. judged. In the opinion that the judiciary possessed the power, I think it erred. This, however, was clearly an obiter expression of opinion, and not decisive on this question. The former part of the opinion is op posed by very eminent authority. Be this as it may, the executive refused to comply with the requisition, and there has been no warrant of arrest or order of commitment emanating from that quarter. An arrest was then made by a local magistrate of New York, who decided that he had authority over the case. The petitioner was then liberated by a circuit judge of that State, who decided that the State judiciary had no jurisdiction, and on this ground discharged the party on habeas corpus. The diplomatic representative of the French government then addressed Judge Betts, the district judge of the United States, who, after full hearing, decided that the federal judiciary had jurisdiction over the party and the case, and awarded the order of commitment. The entire judgment of the district judge rests upon the ground that he is exercising judicial power, and determining a question of judicial jurisdiction. If he be right on this point, this court will probably refuse the habeas corpus, because, concurring in the opinion, they would feel themselves compelled to remand the prisoner, his imprisonment being for lawful cause and by competent authority. If wrong, the writ ought to issue, because the arrest was unlawful. I am aware that this court was held, that, in awarding this writ, it does so in the exercise of appellate and not original jurisdiction, and that a doubt has been expressed whether, this being a proceeding before the district judge at chambers, this court can exercise any revisory power over it. This question will be presented more fully hereafter. In the mean time I would suggest, that to act upon this distinction would seem to involve this extraordinary conclusion, that if the district judge, acting in open court upon a case regularly before him, should commit a party to prison, this court would possess the jurisdiction to award the writ; but inasmuch as the commitment was in the exercise of an undoubted power, the judgment of the District Court, not being revisable here, would be final, and the court, seeing that it must necessarily remand upon the hearing, would decline to issue the writ; whereas, if it appeared that the judge exercised an authority 181*] not granted by law, *and assumed a jurisdiction not belonging to him, then, as he did not act in open court, his proceedings, however erroneous and unauthorized, cannot be drawn in question here through the instrumentality of this writ. Such has not been the interpretation heretofore given by this court to its own grant of power. With this general remark this point will be postponed for the present, until we reach it in the regular progress of the argu ment. Let us now examine whether the district judge, either as presiding in the District Court or at chambers, had any authority to hear this application, to exercise any jurisdiction over the case, and to make the order for commitment. I apprehend this question must be answered in the negative. The courts of the United States, and the judges of those courts, can exercise no powers of a a judicial character, and can possess no jurisdiction, except that which is conferred upon them under the authority of the Constitution by act of Congress. The Supreme Court is the only court named in the Constitution, and even this high tribunal has no existence simply by the force and operation of the constitution itself. Until Congress brought it into existence, and gave it organization, it existed rather in posse than in esse. But the inferior courts, the circuit and district courts, exist only under the authority of legislation. Congress alone created them, meted out to each the powers which it enjoys, prescribed the orbit within which it should move, and prescribed every limit by which its jurisdiction was to be ascertained. I am entitled to put the question which I now address to this court, and to my learned friends, Where is to be found any grant of jurisdiction to a district court, far more to a district judge, to exercise the power assumed in the present case? Upon what act of Congress can the finger be laid which confers it? None such exists. The only ground upon which this claim was rested before and by the district judge is that of the treaty stipulations with France, and the means by which he acquired jurisdiction on application addressed to him by the diplomatic agent of the French government. With great deference, I cannot but think the mode as irregular as the authority unfounded. Under our institutions, there exists but one legitimate channel of communication between this and any foreign nation; that organ is the executive. It is unprecedented in our judicial and legislative annals, for the diplomatic representative of a foreign government to address himself immediately to the judicial or legislative departments. Such a course is equally unknown to the history of England. Nor in my judgment is it less extraordinary in an American judge udge to regard such an application to him as in the nature of the original writ out of chancery, to call into action the latent powers of the judiciary. A record which should begin by setting forth such a paper *would be a judicial if not a political [*182 curiosity, and it is hoped it may be brought before the eyes of this court by a writ of certiorari to accompany the habeas corpus. But no such jurisdiction exists to be evoked and called into exercise by this or any other process. It has been observed, that no such authority is conferred by any statute. With submission I may say, that to me it seems preposterous to assert that it may be conferred by treaty. It is a new idea to me that the treaty making power can, by the most latitudinarian construction, be held to be a constitutional source of power and jurisdiction to any court or judge of the United States. New objects of judicial power, new subjects upon which it is to operate, may extend the number of cases which may be presented for judicial decision, but can never be appealed to as a grant of judicial power. Treaty stipulations operate only directly upon the parties to them, and not upon the citizens, except as part of the law of their own land. All may recollect the recent circumstance arising between England and : Brazil, Brazil, in which it was thought necessary to invest, by legislative re authority, authority, the British courts with jurisdiction to enforce the provisions of the treaty upon Brazilian subjects. In 1794, Jay's Treaty, 27th article, provided for the surrender of fugitives from justice. 8 Stat. at Large, 129. In 1842, the Ashburton Treaty, art. 10, Ibid. 576. In 1843, the convention with France. Ibid. 580. In the absence of legislative provisions can either of these treaties be executed? A recent occurrence in our history may illustrate this. Act of Aug. 8, 1846, ch. 105; Acts, etc. p. 78. If, then, the district judge has assumed a power not conferred upon him, can this court award a habeas corpus? If adherence is had to judicial precedents, not hastily or inconsider other publis ministers, and cousuls, and those in which a State shall be a party. 2d. Because it possesses no appellate power in any case, unless conferred upon it by act of Congress, nor can it, where conferred, be exercised in any other form or by any other mode or proceeding than that which the law prescribes. 3d. Because the Supreme Court was created by the Constitution, and its jurisdiction was conferred and defined by that instrument and the laws of Congress made in pursuance thereof; consequently, it possesses no inherent common law powers beyond the written law. 1st. No original jurisdiction in this case. By art. III. sec. 2, of the Constitution, it is provided, that the judicial power shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to ately decided, there is an end to this question. time ordain and establish. The second section United States v. Hamilton, 3 Dall. 17, precise- describes the whole circle of the judicial power ly in point, in 1795; in 1806, Ex-parte Burford, of the United States, giving its extent and 3 Cranch, 448; in 1807, Bollman and Swartwout, 4 Cranch, 75; Ex-parte Cabrera, 1 1 Wash. C. С. C. С. R. 232; Ex-parte Kearney, 7 Wheat. 38; Exparte Watkins, 3 Pet. 200; 7 Pet. 568. Watkins, Mr. Clifford, the Attorney-General, submitted three propositions: 1. That the treaty took effect and went into operation on and from the day of the date thereof. 2. That the judge of the District Court had competent authority, under the provisions of the treaty and the laws of the United States now in force, to take jurisdiction of this case, and to order the apprehension of the accused in the manner in which it was done, pursuant to the stipulations of the treaty. As the decision of the court was exclusively on the point of jurisdiction, it is not considered 183*] necessary to do more than give the *authorities cited by the Attorney-General to sustain these two propositions. On the first he cited, 1 Kent's Com. 169, 170; Hylton v. Brown, 1 Wash. C. C. R. 312; Wheaton's International Law, 306, 573; United States v. Arredondo, 6 Pet. 748, 758; 2 Burlamaqui, 223; Vattel, B. 3, sec. 239; Rutherford's Inst. B. 2, chap. 9, sec. 22; Martens, B. 2, chap. 1, sec. 3; 2 McCulloch's Dict. Com. 654-674. On the second he cited, Foster v. Neilson, 2 Pet. 314; United States v. Arredondo, 6 Pet. 734, 735; Constitution, art. VI.; Case of Thomas Sheagle, Massachusetts District, October Term, 1845, MS.; 8 Statutes at Large, 129; Jay's Treaty, art. 27; United States v. Nash, alias Robbins, Bee, 266; 3 Story's Com. secs. 1640, 1641; Osborn v. Bank of the United States, 9 Wheat. 738; Constitution, art. III. sec. 2; Chisholm v. State of Georgia, 2 Dall. 419; Rhode Island v. Massachusetts, 12 Pet. 657; Barry v. Mercein, ante, p. 103; United States v. Bevans, 3 Wheat. 336; United States v. Wiltberger, 5 Wheat. 76; Judiciary Act of 1789, secs. 9, 11, 33; Picquet v. Swan, 5 Mason, boundaries; it then distributes that power, first in marking and defining the original jurisdiction of the Supreme Court, limiting it, with Supreme a precision and certainty defying all construction, to cases affecting ambassadors, other public ministers, and consuls, and cases to which a State shall be a party. So firmly is this view of the case established by the Constitution, that Congress itself has no power to enlarge the original jurisdiction of this court, or to extend it to any other cases than those enumerated. * It was accordingly held, [*184 that so much of the thirteenth section of the Judiciary Act as gave authority to the Supreme Court to issue writs of mandamus to public officers was unconstitutional and void. Marbury v. Madison, 1 Cranch, 173-175; Cohens v. Virginia, 6 Wheat. 400. The original jurisdiction of the Supreme Court can neither be enlarged or restrained, but must stand as it is written in the Constitution by which it is conferred. 2d. No appellate jurisdiction. The appellate power of the Supreme Court is described in the Constitution in these words: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." The appellate authority, though somewhat extensive under the Constitution, is not general, but is limited and confined to the cases specially enumerated, and is made subject to such exceptions and regulations as Congress may from time to time prescribe. The grants conferring original and appellate jurisdiction disclose this marked distinction-the former can neither be restrained or enlarged; the latter, while it cannot be enlarged beyond the limits of its circle, yet within those limits Congress may confer as much or as little as in its discretion it may consider wise and expedient. Barry v. Mercein, ante, p. 103. 42; United States v. Schooner Peggy, 1 Cranch, The authority to issue writs of habeas corpus 109, 110; 3 Story's Com. sec. 1515; Case of Santos, 2 Brock. 494. 3. The third proposition admitted was, that the Supreme Court has no authority, under the Constitution and laws of the United States, to grant the writ of habeas corpus prayed for in the petition. Ist. Because its original jurisdiction is restricted to cases affecting ambassadors, is not claimed to be among the enumerated cases of original jurisdiction conferred upon the Supreme Court. The language of the grant in this respect leaves nothing for implication; if any doubt could arise, the case of Marbury v. Madison silences argument and dispute upon the point. Ex-parte Barry, 2 How. 65. The appellate jurisdiction, being |