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see that I am expressly ordered to make the shipments in neutral vessels, and that the property shall appear as that of a neutral subject." What right had he to suspect that the confidential agent of the plaintiffs, to whose verbal communications they referred him, had forged instructions which he produced as those of his principals ?

The counsel for the plaintiffs question the existence of these private instructions, and demand their production. *But how were they to be authenticated? Only by Menendez himself. Are not then their contents to be proved by the declarations of Menendez, by his stating them, and by the chief clerk of Barry, who read a part of them.

To the court, it appears, that in such a case as this, the proof respecting them is as ample and satisfactory as ought to be required.

After taking this extensive view of the case, of the powers of Menendez, and of the confidence the defendant was bound to repose in him, it only remains briefly to observe, that the directions he gave were not such as to awaken suspicion.

On the 14th of June, 1798, when these instructions were given, America had ceased to be a neutral power. War, it is true, was not formally declared, but it had commenced in fact, and hostilities were authorized by that department of the government which is invested with the power of making war. In such a state of things, the course which prudence would have dictated to the plaintiffs, had they been themselves in the United States, certainly was to cover the tobacco as neutral, not as American property, and when their agent, possessing private instructions, directed the property to be shipped as neutral, not as American, the defendant would have been culpable in thwarting him.

It is scarcely necessary to add, that Menendez stated himself to be, and probably was, something more than an agent. He declared himself to be interested in the cargoes. This declaration, under all the circumstances of the case, was not to be discredited. Upon that, however, the judgment of the court is not founded. The letter of the 27th of January, represented him as the principal and confidential agent of the plaintiffs, whose verbal communications were to be trusted. He

Manella

V.

Barry.

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declared himself to possess particular instructions respecting a transaction which he came to superintend, and under those instructions he gave orders which the defendant has obeyed. The court is of opinion, that in so doing, the defendant is justifiable, and no error has been committed in the court below, in so instructing the jury.

*Upon the other part of the exceptions, the price given for the tobacco, it is unnecessary to say more than that there is no error in the opinion of the court. Affirmed.

A warrant of

EX PARTE BURFORD.

JOHN ATKINS BURFORD, a prisoner confined commitment in the gaol of the county of Alexandria in the district by justices of the peace, of Columbia, petitioned this court for a habeas corpus, must state a to inquire into the cause of his commitment, alleging good cause certain, sup that he was confined under and by colour of process of ported by oath. the United States, and praying for a certiorari to the clerk of the circuit court of the district of Columbia, for the county of Washington, to certify the record by which his cause of commitment might be examined, and its legality investigated. To the petition was annexed a copy of his commitment, certified by the gaoler of Alexandria county.

Hiort, for the petitioner, observed, that he was aware of the decision of this court in the case of Marbury v. Madison, ante, vol. 1. that a mandamus would not lie in this court when it operated as an original process; but there is a vast difference between a mandamus and a writ of habeas corpus. The former is a high prerogative writ, issuing at the discretion of the court, but this is a writ of right, and cannot be refused. The constitution of the United States, art. 1. s. 9. declares, "that it shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."

By the 14th section of the judiciary act of 1789,

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vol. 1. p. 58. it is enacted, "that all the before-men- Ex parte tioned courts of the United States" (including the supreme court)" shall have power to issue writs of scire facias, habeas corpus, and all other writs," &c. "And that either of the justices of the supreme.court, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment." If a single justice of this court has the power, it would be a strange construction of the law, and of the constitution, to say that the whole court cannot exercise the same power.

The reason why this court would not exercise its appellate jurisdiction in a criminal case, was stated in the case of The United States v. More, ante, p. 159. to be because no mode of exercising it had been appointed by law, the writ of error extending only to civil cases. But if this is an exercise of its appellate jurisdiction, the mode by habeas corpus is expressly provided by the statute for that purpose.

March 4.

MARSHALL, Ch. J. There is some obscurity in the act of congress, and some doubts were entertained by the court as to the construction of the constitution. The court, however, in favour of liberty, was willing to grant the habeas corpus. But the case of The United States v. Hamilton, 3 Dal. 17. is decisive. It was there determined that this court could grant a habeas corpus; therefore, let the writ issue, returnable immediately, together with a certiorari, as prayed.

Upon the return of the habeas corpus, and certiorari, it appeared, that on the 28th of December, 1805, Burford was committed to the gaol of Alexandria county, by a warrant under the hands and seals of Jonah Thompson, and ten other justices of the peace for that county; which warrant was in the following words: Alexandria County, ss.

Whereas John A. Burford, of the county aforesaid, shopkeeper, has been brought before a meeting of many of the justices of the peace for the said county, and by them was required to find sufficient sureties to be bound *with him in a recognisance, himself in the sum of four thousand dollars, and securities for the like sum, for

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Ex parte
Burford.

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his good behaviour towards the citizens of the United States, and their property; and whereas the said John A. Burford hath failed or refused to find such sureties; these are, therefore, in the name of the United States, to command you the said constables, forthwith to convey the said John A. Burford to the common gaol of the said county, and to deliver him to the keeper thereof, together with this precept; and we do, in the name of the said United States, hereby command you, the said keeper, to receive the said John A. Burford into your custody, in the said gaol, and him there safely keep, until he shall find such sureties as aforesaid, or be otherwise discharged by due course of aw. Given under our hands and seals, this 28th day of De cember, 1805.

To any constable, and the gaoler of the

county of Alexandria.

On the 4th of January, 1806, the circuit court of the district of Columbia, sitting in the county of Washington, upon the petition of Burford, granted a habeas corpus, and upon the return, the marshal certified, in addition to the above warrant of commitment, that Burford was apprehended by warrant, under the hands and seals of Jonah Thompson, and thirteen other justices of the county of Alexandria, a copy of which he certifies to be on file in his office, and is as follows: Alexandria county, ss.

The undersigned justices of the United States, assigned to keep the peace within the said county, to the marshal of the district, and all and singular the constables, and other officers of the said county, Greeting:

Forasmuch as we are given to understand, from the information, testimony and complaint of many credible persons, that John A. Burford, of the said county, shopkeeper, is not of good name and fame, nor of honest conversation, but an evil doer and disturber of the *peace of the United States, so that murder, homicide, strifes, discord, and other grievances and damages, amongst the citizens of the United States, concerning their bodies and property, are likely to arise thereby. Therefore, on the behalf of the United States, we command you, and every of you, that you omit not, by reason of any liberty within the county aforesaid, but

that you attach, or one of you do attach,, the body of the said John A. Burford, so that you have him before us, or other justices of the said county, as soon as he can be taken, to find and offer sufficent surety and mainprize for his good behaviour towards the said United States, and the citizens thereof, according to the form of the statute in such case made and provided.

And this you shall in no wise omit, on the peril that shall ensue thereon, and have you before us this precept. Given under our hands and seals, in the county aforesaid, this 21st day of December, 1805.

The circuit court, upon hearing, remanded the prisoner to gaol, there to remain until he should enter into a recognisance for his good behaviour for one year, himself in the sum of 1,000 dollars, and sureties in the like sum.

Hiort, for the prisoner, contended, that the commitment was illegal, both under the constitution of Virginia, and that of the United States. It does not state a cause certain, supported by oath.

By the 10th article of the bill of rights of Virginia, it is declared, that all warrants to seize any person whose offence is not particularly described, and supported by evidence, are grievous and oppressive, and ought not to be granted.

By the 6th article of the amendments to the constitution of the United States, it is declared, "that no warrants shall issue but upon probable cause, supported by oath or affirmation."

*By the 8th article it is declared, that in all criminal prosecutions, the prisoner shall enjoy the right to be informed of the nature and cause of his accusation, and to be confronted with the witnesses against him; and the 10th article declares, that excessive bail shall not be required.

In the present case, the marshal's return, so far as it stated the warrant upon which Burford was arrested and carried before the justices, was perfectly immaterial. He did not complain of that arrest, but of his commitment to prison. The question is, what authority has the goalor to detain him? To ascertain this we must look to the warrant of commitment only. It is that only which can justify his detention. That war

Ex parte
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