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court to dismiss the petition for habeas corpus, for the reason that upon the return of the writ it is shown that the petitioners are held under a warrant issued by the honorable secretary of the treasury, and it appearing that, the secretary had jurisdiction and authority in the matter of issuing said war rant, the matter is not reviewable by this court. This motion having been overruled, witnesses were examined, the facts stated in the petition for habeas corpus and the above-recited facts were proved by witnesses, and thereupon the court ordered in each case as follows: "It not appearing that the petitioner had come into the United States in violation of law, it is ordered that the petition be granted, and he [naming petitioner] be discharged from custody," whereupon the United States appealed to this court, assigning errors as follows: "First, that the court erred in refusing to grant the motion of the said attorney to dismiss the petition upon the ground set forth in said motion; second, that the court erred in permitting any evidence to be introduced at the hearing; third, that the court erred in discharging the petitioner."

F. B. Earhart and Frank Clark, for the United States.

Before PARDEE and McCORMICK, Circuit Judges, and TOULMIN, District Judge.

PER CURIAM. A majority of the judges being of opinion that these cases are controlled by the principles declared in the opinion of the supreme court in Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016, and consequently that the action of the secretary of the treasury in ordering the deportation of aliens who have arrived in this country within a year cannot be reviewed nor questioned by the courts, it is ordered that the judgments of the circuit court for the Southern district of Florida in the above-entitled cases be, and the same are, reversed, and the said cases, and each of them, are remanded, with instructions to enter judgments discharging the writ of habeas corpus, and remanding the relators to the custody of the immigrant inspectors of the United States.

UNITED STATES v. AMOR et al. (six cases).

(Circuit Court of Appeals, Fifth Circuit. May 7, 1895.)

Nos. 265, 266, 291, 297, 302, and 309.


Aliens held in custody by immigrant inspectors for deportation under the contract labor laws, and by virtue of a warrant from the secretary of the treasury, which does not contain the names of the prisoners, or any names idem sonans, are held without authority, and may be released by habeas corpus. U. Š. v. Arteago, 68 Fed. 883, distinguished. Appeal from the Circuit Court of the United States for the Southern District of Florida.

These were writs of habeas corpus issued upon the relation of Joaquin J. Amor and five others, who were held in custody by immigrant inspectors at the port of Key West for the purpose of deportation under the contract labor laws. The circuit court entered an order discharging the relator in each case, and the United States appealed.

F. B. Earhart and Frank Clark, for the United States.

Before PARDEE and McCORMICK, Circuit Judges, and TOULMIN, District Judge.

PER CURIAM. These cases, in the main similar to U. S. v. Arteago (just decided) 68 Fed. 883, are distinguished from them in that the warrant of deportation issued by the honorable secretary of the treasury does not contain the names of the petitioners in the court below (appellees here), nor any name or names idem sonans, and there is no evidence, even if such were admissible, tending to identify the appellees with any name or names recited in the war. rants. As the return to the writ of habeas corpus shows no authority to detain the petitioners, the judgments of the circuit court are correct, and the same are affirmed.

In re DANA et al.


(District Court, S. D. New York. June 24, 1895.) 1. CRIMINAL LAW-REMOVAL OF OFFENDERS-Rev. St. § 1014-STATE PRACTICE


The editor of the New York Sun was indicted in Washington for an alleged libel published first in New York and afterwards circulated in Washington. On an affidavit, stating the indictment and annexing a copy, he was arrested in New York under a warrant issued by a United States commissioner, and held for trial in Washington upon proof of identity. It appeared that he had not been in Washington. Further evidence of no criminality was excluded. The indictment charged in one count the writing and publishing of the libel in New York; in another count it charged the writing in the District of Columbia, and its averments as to Mr. Dana's own acts were uncertain. On application under section 1014, Rev. St., for an order to remove the accused to Washington for trial: Held (1) that this proceeding was independent of that in Washington; (2) that it must conform to the state practice; (3) that facts and circumstances showing criminality must appear by oath or affidavit, and the committing magistrate be thereby satisfied of probable cause; (4) that the accused has the right to an examination, when demanded, and to show want of probable cause; and that the evidence offered should have been received; (5) that an indíctment which presents a clear and consistent statement of facts is equivalent to an affidavit thereof upon the faith of the witnesses indorsed on it; (6) that such an indictment, though secondary evidence, is receivable, and is sufficient if not controverted; (7) that where, as in libel, the place where the offense was committed is material, vague and contradictory statements in the indictment forbid its reception as equivalent to an affidavit of facts, and reduce it to its strict office, viz., as a pleading only; (8) that this in

dictment was of that character, and hence insufficient as a basis of removal. 2. SAJE – SECTION 33, JUDICIARY ACT – “OFFENSES AGAINST THE UNITED


Removable offenses under section 1014, Rev. St., are the same as under section 33 of the judiciary act; the latter refers only to federal offenses, created by the general legislation of congress, and does not embrace offenses such as libel under the local or common law of the District of Columbia alone; the "offenses against the United States" referred to, are such as are triable in the federal courts; libel is not such an offense; the language of section 33 excludes its application to such local offenses in the District of Columbia; the acts of 1871 and 1874 do not extend the

class of offenses referred to in section 33 and section 1014; and the act of 1871 was not designed to give exceptional privileges to the District of Columbia by authorizing removals to that district for an offense like libel, which does not admit of removal as between any of the states, or any of the federal districts of all the rest of the country. Held, therefore, that the application for removal should be denied.

On March 8, 1895, Mr. Dana, editor of the New York Sun, was held by Commissioner Shields in this district, under section 1014 of the United States Revised Statutes, for trial in the District of Columbia upon an indictment there found against him and William Laffan for libel against Frank B. Noyes, a director of the Associated Press, contained in an editorial article printed and published in The Sun of February 22, 1895, and circulated in Washington. The defendant Laffan not having been found, application was made to the district judge for an order removing Mr. Dana to Washington, for trial in the supreme court of the District of Columbia, where the indictment was filed on March 7, 1895.

The complaint before the commissioner was made by the United States attorney for this district, in a brief atiidavit, which did not itself charge any offense, but alleged, upon information and belief, the finding of the indictment, as above stated, and that the defendant was in this district. Attached were an authenticated copy of the indictment, and a copy of the bench warrant issued thereon by the chief justice of the court, directing the marshal of the District of Columbia to arrest the defendants if found in that District.

The indictment contained three counts. The first stated that the Sun Printing & Publishing Association was a New York corporation, engaged at the city of New York, in the business of printing and publishing The Sun newspaper daily; that Mr. Dana was its editor, and as such, composed, and procured for publication in The Sun, the editorial articles that appeared in the daily issues thereof; that the defendant Laffan was the manager of the paper, who had charge and superintendence of the printing, publication, and sale thereof; and that as such manager Laffan published and seld, and caused to be sold the issues of the paper in the city of New York, and at other places in the United States, among them, at the city of Washington; and that 300 copies of The Sun were regularly sent to Washington, and were sold by said Laffan as such manager for circulation there, as Mr. Dana well knew; that Mr. Dana, so being editor, and Mr. Laffan, manager, of The Sun, did, at the city of New York, on the 22d of February, 1895, maliciously write and publish, and cause and procure to be written and published in The Sun, in the form of an editorial article, the libelous matter complained of, entitled "The Work of Rascals”; and on the same day maliciously and unlawfully sent and caused to be sent to the city of Washington, for circulation there, 300 copies thereof, containing the libelous matter referred to; and did then and there on February 22, 1895, at the District of Columbia, unlawfully publish, and cause to be published, the libelous matter in the editorial article above referred to.

Two other counts in the indictment are of the same purport substantially, except that they make no reference to the publication of The Sun in New York, or to any acts of the defendants in New York; but aver that the de fendants on the 22d day of February, 1895, did, at the said District of Columbia, write and publish, and cause and procure to be written and published a certain other libel, in the same words as stated in the first count. Mr. Dana, on notice of the proceedings, appeared before the commissioner. His identity was proved; and also that he was not in Washington, but in New York, during all the period alleged in the indictment, and had nothing to do with the sale or circulation of the paper; he denied the existence of probable cause, the sufficiency of the papers presented to the commissioner, and offered evidence to show want of probable cause, which was excluded, the commissioner ruling that only the question of identity was before him. The question of removal was elaborately argued before the district judge orally, and upon briefs after wards submitted.

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Wallace Macfarlane, U. S. Dist. Atty., and Max J. Kohler, Asst. U. 8. Dist. Atty., for the United States.

Elihu Root, Franklin Bartlett, and Jere Wilson, for defendants.

BROWN, District Judge (after stating the facts). The indictment charges that the alleged libel was published both in New York and in Washington. But the facts stated in the indictment, and the slight evidence taken before the commissioner, are sufficient to show that whatever Mr. Dana had to do with the publication of The Sun of February 22d, containing the alleged libelous matter, was done in New York. Upon this ground it is contended by his counsel that he cannot be removed to Washington for trial, under the provisions of the United States constitution, which require the trial of offenders to be had in the state and district where the offense shall have been committed. The law of libel, however, authorizes an indictment where the libelous matter has been circulated through the defendant's instrumentality or procurement, and the common-law authorities justify the contention of the prosecution, that if the accused, within one jurisdiction has set agencies in motion for the purpose of procuring the circulation of the libelous matter in another jurisdiction, the offense is committed by him in the latter jurisdiction, though he was not physically present there.

Whether the requirement of the constitution that the trial shall be had where the offense is committed, is to be construed according to the technical common-law rule existing at the time the constitution was adopted, or in the more popular sense of the word “committed,” and with reference only to the place where the defendant's own acts were done, is a mooted question, which I do not find it necessary to decide. Some very pertinent remarks on this point adverse to the contention of the prosecution, are to be found in the opinion rendered by Justice James, in the case of U. S. v. Guiteau, 1 Mackay, 544, 545, and also by Justice Hagner, in the same case (pages 553, 554), both of whom express the opinion that the constitutional provision is to be interpreted on grounds “independent of the common law," and with reference only to the "place where the manifest act of the defendant was done"_"where his active agency was employed”—and that it “forbids trial in a district where the ultimate consequence of his act happened, but where he does not act.”

The language of courts, however, is to be considered with reference to the facts of the case in hand; and in that case the mortal blow was delivered in the District of Columbia, though the death resulting from it occurred afterwards in New Jersey. Such cases are distinguished from those in which the defendant's acts are direct and continuous, as when a pistol ball is fired across the boundary line of two jurisdictions; in that case, the blow is deemed given and the offense committed where the ball strikes, though the offender was across the line and in another jurisdiction. U. S. v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932. And so in libel, it is said, the injurious blow is delivered at the place where the circulation or publication is brought about intentionally through the defend

ant's procurement. If the circulation in a foreign jurisdiction arises only through the independent acts of others, without any active privity or intentional procurement of the defendant, no doubt can arise; as, for instance, in the case of a sale by the publishers of papers at the principal place of publication to a newsdealer in the ordinary course of trade, by whom the papers are forwarded to other jurisdictions in the ordinary course of his business. In such a case the remarks of Judge Cooley would certainly be pertinent:

"The actual offense, if any,” he says, “was committed in New York. But & technical publication also took place in Washington by the sale of papers there.

* It would be a singular result of a revolution where one of the grievances complained of was the assertion of a right to send parties abroad for trial, if it should be found that an editor may be seized anywhere in the Union and transported by a federal officer to every territory into which his paper may find its way, to be tried in each in succession, for offenses which consisted in a single act, not actually committed in any of them.” Const. Lim. *320, note.

As the facts bearing upon this point appear very imperfectly, through the slight testimony admitted by the commissioner, it will not be useful to consider it further here, though it has an important connection with the sufficiency of the indictment; and in that relation it will be referred to hereafter. It is also unnecessary, as a careful examination of the case in other aspects satisfies me that the application for removal should be denied, (1) because of the insufficiency of this indictment as a basis for removal proceedings under the practice required by section 1014; and (2) because the offense charged, resting wholly on the common law of Maryland, continued in force there by the acts of congress, does not belong to the class of "offenses against the United States” contemplated by section 33 of the judiciary act, or by section 1014 of the Revised Statutes, upon which this application is based.

(1) Procedure: The Indictment as Evidence: The commitment was made, and removal is asked, upon no evidence of criminality, or of probable cause, except a copy of the indictment found in the District of Columbia. Its reception as evidence of criminality was objected to. The objection was overruled, and the finding of the indictment was treated as so far conclusive on the question of probable cause, as to leave nothing for the commissioner, as a committing magistrate, to determine, except the identity of the defendant. Evidence offered by the defendant to disprove probable cause was accordingly rejected. On the question of criminality, no witnesses were called for the prosecution, and none was allowed for the defendant. It is claimed by the prosecution that the long practice of this district warrants that course. No reported decision of my predecessors on this point has been cited, and I know of none; nor has the point been before presented to me for decision. As applications for removal upon indictments found in other districts are becoming frequent, correct practice in regard to them is so important that I am constrained to give it careful attention. If the practice pursued in this case is

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