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 issue at law, and the material averments of the bill, so far as they are denied by the answer, are fully proved by Hamilton and Turney, and sustained by every reasonable deduction from the circumstances. 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, and they then presented no such indebtedness; but, on the contrary, all parties appeared satisfied that $4,200 would cover the whole claim. *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 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." We are unable to discover any foundation for 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. In "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, "United States Commissioner for the Southern District of New York." "In the Matter of Nicholas Lucien Metzger: "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, the Matter of NICHOLAS LUCIEN pursuant to the provisions of the convention METZGER. 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 order of the President of the United States, this court has no jurisdiction to issue a habeas corpus for the purpose of reviewing that decision. M 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): R. Coxe moved for a habeas corpus, according to the following petition, which he read, and also the decision of the judge be-ed States has competent authority, under the low: "To the Honorable, the Justices of the Supreme Court of the United States: "The petition of Nicholas Lucien Metzger respectfully sheweth, That he is restrained That he is restrained 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. "I find and adjudge, that a judge of the Unitlaws of the United States now in force, to take cognizance of this case, and to order the appursuant to the provisions of the said treaty. prehension and commitment of the accused, effect and went into operation on and from the "I further adjudge, that the said treaty took 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 adehim in France, since the date of the treaty. quately prove the commission of that crime by is, within the meaning and description of the "I further find and adjudge, that Metzger treaty, a person accused, individu accusé,' of the treaty, and therefore subject to apprehenthe crime of forgery, or 'du faux,' named in sion and commitment under our laws, pursuant 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. "Wherefore I order, that the said Nicholas Lucien Metzger be apprehended and committed, pursuant to the provisions of the said treaty to abide the order of the President of the United States in the premises. 178*] *"Given under my hand and seal at the city of New York, this nineteenth [L. S.] day of January, one thousand eight dred and forty-seven. (Signed) "Samuel R. Betts, The case was argued by Mr. Coxe on behalf of the petitioner, and by the Attorney-General (Mr. Clifford) and Mr. Jones in opposition to 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 viIn conveying the intimation that the court olation or breach of any contract, or to answer would hear an argument on behalf of the pe- to any allegation of a tort of which those titioner, no suggestion was thrown out as to courts have cognizance; nor is it in the nature the points to which counsel were desired to ad- of an execution to compel the prisoner to redress themselves under these circumstances. spond to any process in the nature of an execuWhat fell from the bench conveyed merely the tion upon any judgment rendered against him idea that doubts were entertained by the court, by any court of the United States, or in the but it conveyed no intelligence as to the char-nature of an attachment for any contempt comacter of these doubts, to what part of the case mitted against such tribunal. 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. the motion. Mr. Coxe, for the motion: 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. 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 The simple fact that such imprisonment exupon the United States, or those who repre-ists under color and pretense of right presents sent the French government, to show cause a prima facie case warranting the application why the prayer of the petitioner should not be 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 application was to be resisted would this court asserting its power, and actually exhave been distinctly announced, and full op-ercising the jurisdiction and authority now inportunity would have been afforded to meet, voked, would seem clearly to establish prima. and, if practicable, to answer them. In the facie a right in the petitioner to have the benesituation, however, in which the case then fit of this high prerogative writ. If there is stood, ignorant whether either government felt any ground of objection, growing out of the any such interest in the proceeding as would circumstances of the case, which destroys this induce it to intervene by a direct opposition to prima facie presumption as to the facts, they the motion which was submitted, it would are to be found in the peculiar characteristics scarcely have been proper for me to have sug- of those circumstances which attend the arrest gested, or for the court to have sanctioned, the of the petitioner; if any to meet the legal auadoption of such a course. thorities upon which we rely, they must in consequence of these circumstances be held inapplicable to the case under consideration. 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. 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 habeas 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 rightly judged. In the opinion that the judiciary possessed the power, I think it erred. This, however, was clearly an obiter expres- The courts of the United States, and the sion of opinion, and not decisive on this ques-judges of those courts, can exercise no powers tion. The former part of the opinion is op- of a judicial character, and can possess no posed by very eminent authority. jurisdiction, except that which is conferred upon them under the authority of the Constitution by act of Congress. 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. 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. 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. 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. I am aware that this court was held, that, in awarding this writ, it does so in the exercise of Under our institutions, there exists but one appellate and not original jurisdiction, and that legitimate channel of communication between a doubt has been expressed whether, this being this and any foreign nation; that organ is the a proceeding before the district judge at cham-executive. It is unprecedented in our judicial bers, 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 Nor in my judgment is it less extraordinary upon a case regularly before him, should com- in an American judge to regard such an applimit a party to prison, this court would possess cation to him as in the nature of the original the jurisdiction to award the writ; but inas-writ out of chancery, to call into action the much 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 But no such jurisdiction exists to be evoked 181*] not granted by law, *and assumed a and called into exercise by this or any other jurisdiction not belonging to him, then, as he process. It has been observed, that no such did not act in open court, his proceedings, how-authority is conferred by any statute. ever erroneous and unauthorized, cannot be submission I may say, that to me it seems predrawn in question here through the instrumen- posterous to assert that it may be conferred by tality of this writ. 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 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. With Brazil, in which it was thought necessary to invest, by legislative authority, the British courts with jurisdiction to enforce the provisions of the treaty upon Brazilian subjects. 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, In 1794, Jay's Treaty, 27th article, provided nor can it, where conferred, be exercised in for the surrender of fugitives from justice. any other form or by any other mode or pro8 Stat. at Large, 129. In 1842, the Ashburton | ceeding than that which the law prescribes. Treaty, art. 10, Ibid. 576. In 1843, the con- 3d. Because the Supreme Court was created vention with France. Ibid. 580. In the ab- by the Constitution, and its jurisdiction was sence of legislative provisions can either of conferred and defined by that instrument and these treaties be executed? the laws of Congress made in pursuance thereA recent occurrence in our history may il-of; consequently, it possesses no inherent comlustrate this. Act of Aug. 8, 1846, ch. 105; mon law powers beyond the written law. Acts, etc. p. 78. case. 1st. No original jurisdiction in this If, then, the district judge has assumed a By art. III. sec. 2, of the Constitution, it is power not conferred upon him, can this court provided, that the judicial power shall be award a habeas corpus? If adherence is had to vested in one Supreme Court, and in such injudicial precedents, not hastily or inconsider-ferior 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, boundaries; it then distributes that power, first 4 Cranch, 75; Ex-parte Cabrera, 1 Wash. C. C. R. 232; Ex-parte Kearney, 7 Wheat. 38; Exparte Watkins, 3 Pet. 200; 7 Pet. 568. 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. Mar in marking and defining the original jurisdiction of the Supreme Court, limiting it, with 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. As the decision of the court was exclusively bury v. Madison, 1 Cranch, 173–175; Cohens v. on the point of jurisdiction, it is not considered Virginia, 6 Wheat. 400. The original juris183*] necessary to do more than give the *au-diction of the Supreme Court can neither be thorities cited by the Attorney-General to sus- enlarged or restrained, but must stand as it is tain these two propositions. On the first he written in the Constitution by which it is concited, 1 Kent's Com. 169, 170; Hylton v. Brown, ferred. 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. 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; Picquèt v. Swan, 5 Mason, 42; United States v. Schooner Peggy, 1 Cranch, 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. 1st. Because its original jurisdiction is restricted to cases affecting ambassadors, 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. The authority to issue writs of habeas corpus 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 |