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27 March 180421. 2 Stat. 298.

records authenticated.

10. All records and exemplifications of office books, which are or may be kept in any public office of any state, not appertaining to a court, (a) shall be proved or admitted in How other public any other court or office in any other state, by the attestation of the keeper of the said records or books, and the seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which such office is or may be kept, or of the governor, the secretary of state, the chancellor or the keeper of the great seal of the state, that the said attestation is in due form, (b) and by the proper officer; (c) and the said certificate, if given by the presiding justice of a court, shall be further authenticated by the clerk or prothonotary of the said court, who shall certify under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or if the said certificate be given by the governor, the secretary of state, the chancellor or keeper of the great seal, it shall be under the great seal of the state in which the said certificate is made. And the said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States, as they have by law or usage in the courts or offices of the states from whence the same are, or shall be taken.

Effect thereof.

Ibid. 22.

territories, &c.

11. All the provisions of this act, and the act to which this is a supplement, shall To apply to the apply as well to the public acts, records, office books, judicial proceedings, courts and offices of the respective territories of the United States, and countries subject to the jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts and offices of the several states.(d)

2 March 1849 21. 9 Stat. 350.

How certain

foreign records authenticated.

3 March 17972. 1 Stat. 512.

Transcripts of treasury balances to be evidence.

12. It may and shall be lawful for the keepers or persons having the custody of laws, judgments, orders, decrees, journals, correspondence or other public documents of any foreign government or its agents, relating to the title to lands claimed by or under the United States, on the application of [one of] the heads of one of the departments, the solicitor of the treasury or the commissioner of the general land office, to authenticate the same under his hand and seal, and certify the same to be correct and true copies of such laws, judgments, orders, decrees, journals, correspondence or other public documents; and when the same shall be certified by an American minister or consul under his hand and seal of office, or by a judge of one of the United States courts under his hand and scal, to be true copies of the originals, the same shall be sealed up by him and returned to the solicitor of the treasury, who shall file the same in his office, and cause it to be recorded in a book to be kept for that purpose. A copy of said laws, judgments, orders, decrees, journals, correspondence or other public documents so filed, or of the same so recorded in said book, may be read in evidence in all courts, where the title to land claimed by or under the United States may come into question, equally with the originals thereof.

V. OFFICE COPIES.

13. In every case of delinquency, (e) where suit has been, or shall be instituted,(g) a transcript from the books and proceedings of the treasury, (h) certified by the register,(i) and authenticated under the seal of the department, (k) shall be admitted as evidence ;(/) and the court trying the cause, shall be thereupon authorized to grant judgment, and award execution, accordingly. And all copies of bonds, contracts or other papers relating Copies of bonds, to, or connected with the settlement of any account between the United States and an individual, when certified by the register to be true copies of the originals on file, and authenticated under the seal of the department, as aforesaid, may be annexed to such

&c.

(a) These are obviously among the public writings recognised by the common law as invested with an official character, and therefore susceptible of proof by secondary means, but which are not of the nature of judicial records or judgments. Of this kind are acts and orders of the executive of the state; the acts of the legislative bodies; the journals of either branch of the legislature; registers kept in public offices; books which contain the official proceedings of corporations, if the public at large are concerned with them; parish registers, and the like. Snyder v. Wise, 10 Barr, 158.

(b) Drummond's Administrators v. Magruder, 9 Cr. 122. (c) See 1 Burr's Trial. 98.

(d) The extension of the act of 1790 to the territories of the United States, is a constitutional exercise of the legislative powers of congress. Hughes v. Davis, 8 Maryland, 271.

(e) Extended to the trial of indictments for the embezzlement of public moneys. by act 6 August 1846 16. 9 Stat. 63.

(g) This is not restricted to cases where suits are commenced under the authority given by the first section of the act, but applies to all cases where the evidence is required. United States v. Lent, 1 Paine. 417. See Walton v. United States, 9 Wh. 651. Smith v. United States, 5 Pet. 292,

(h) The act requires a transcript of the items, not a statement of a balance in gross. United States v. Jones, 8 Pet. 375. Hoyt v. United States, 10 How. 109. United States v. Patterson, Gilp. 44. United States v. Edwards, 1 McLean, 467. Duly certified copies of the vouchers under which payments were made to third persous by the authority of the defendant, ought to be annexed; ihat authority not being otherwise within the personal knowledge

of the accounting officers. United States v. Jones, 8 Pet. 375. A contractor's account adjusted by the proper accounting officers, and duly certified and authenticated, is evidence not only of money advanced to the contractor, but of money disbursed by officers of the army for provisions, in consequence of the con tractor's failure to comply with his contract. United States v. Griffith. 2 Cr. C. C. 366. Credits which were claimed and rejected, need not be certified. United States v. Hodge, 13 How. 478. And see United States v. Vanzandt, 2 Cr. C. C. 338. United States e. Buford, 3 Pet. 12. Cox v. United States, 6 Ibid. 172.

(i) Extended to the second and third suditors, by act 3 March 1817 11. (3 Stat. 367), so far as to empower them to authenticate transcripts from the accounts in the war and navy departments. But they are not authorized to certify copies of bonds, &c., under the subsequent clause of this section; this duty must still be performed by the register. United States v. Griffith, 2 Cr. C. C. 366. And see act 2 July 1836 15, (tit. "Post Office," 38), as to the transcripts of the sixth auditor.

(k) The signature of the secretary of the treasury is not neces sary; it is the seal of the department that gives authenticity to the certificate. Smith v. United States, 5 Pet. 292.

(1) The legislature may establish new rules of evidence, in derogation of the common law, as by making treasury transcripts evidence: but the mode of authentication must be strictly purs sued. Smith v. United States, 5 Pet. 292. And see Bleecker Bond, 3 W. C. C. 529. A treasury transcript, though primá fucie, is not conclusive evidence. United States v. Eckford's Executors, 1 How. 250.

transcripts, and shall have equal validity, and be entitled to the same degree of credit, 3 March 1797. which would be due to the original papers, if produced and authenticated in court: Pro- When originals vided, That where suit is brought upon a bond, or other sealed instrument, and the to be produced. defendant shall plead "non est factum," or upon motion to the court, such plea or motion being verified by the oath or affirmation of the defendant, it shall be lawful for the court to take the same into consideration, and (if it shall appear to be necessary for the attainment of justice) to require the production of the original bond, contract or other paper specified in such affidavit.

3 Stat. 721.

14. Whenever any person claiming to be interested in, or entitled to land, under any 23 Jan. 1823 § 1. grant or patent from the United States, shall apply to the treasury department for copies of papers filed and remaining therein, in any wise affecting the title to such land, it shall Copies of papers relating to land be the duty of the secretary of the treasury to cause such copies to be made out and titles. authenticated, under his hand and seal, for the person so applying, and such copies, so authenticated, shall be evidence equally as the original papers.

9 Stat. 80. Extracts from

15. Extracts from the journals of the senate or of the house of representatives, and 8 Aug. 1846 2 1 of the executive journal of the senate, when the injunction of secrecy is removed, duly certified by the secretary of the senate or by the clerk of the house of representatives, the journals. shall be admitted as evidence in the several courts of the United States, and shall have the same force and effect as the originals thereof would have, if produced in court and proved.

9 Stat. 347.

16. The solicitor of the treasury shall cause a seal to be made and provided for his office, 22 Feb. 1849 ? 2. with such device as the president of the United States shall approve; and copies of any public documents, records, books or papers, belonging to, or on the files of the said office, Solicitor of the treasury to cerunder the signature of the said solicitor, or, when the office shall be vacant, under the tify copies of signature of such officer as may be officiating for the time being, accompanied by an impress papers in his of the said seal, shall be competent evidence in all cases, equally with the original records, documents, books or papers.

Ibid. 23.

17. All books, papers, documents and records in the war, navy, treasury and post office departments, and the attorney-general's office, may be copied and certified under seal in Copies of papers the same manner as those in the state department may now by law be, (a) and with the in the several same force and effect, and the said attorney-general shall cause a seal to be made and provided for his office, with such device as the president of the United States shall approve.

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VI. WITNESSES.

departments.

5 Stat. 517.

criminal cases

to give recogni

18. In all hearings before any justice or judge of the United States, or any commis- 23 Aug. 1842 2. sioner appointed as aforesaid, under and in virtue of the said 33d section of the act entitled An act to establish the judicial courts of the United States," it shall be lawful Witnesses in for such justice, judge or commissioner, where the crime or offence is charged to have may be required been committed on the high seas or elsewhere within the admiralty and maritime juris- sance with diction of the United States, in his discretion, to require a recognisance of any witness surety. produced in behalf of the accused, with such surety or sureties as he may judge necessary, as well as in behalf of the United States, for their appearing and giving testimony, at the trial of the cause, whose testimony, in his opinion, is important for the purposes

tion.

of justice at the trial of the cause, and is in danger of being otherwise lost; and such Their compensawitnesses shall be entitled to receive from the United States the usual compensation allowed to government witnesses for their detention and attendance, if they shall appear and be ready to give testimony at the trial.

9 Stat. 73.

issued against

government to

19. On the application of any attorney of the United States for any district, and upon 8 Aug. 1846 3 7. satisfactory proof of the materiality of the testimony of any person who shall be a competent witness, and whose testimony shall, in the opinion of any judge of the United Warrants may be States, be necessary upon the trial of any criminal cause, or proceeding in which the witnesses for the United States shall be a party or interested, any such judge may compel such person, 80 compel them to required or deemed by him necessary as a witness, to give recognisance, with or without find sureties, &c. sureties, in his discretion, to appear on the trial of said cause or proceeding and give his testimony therein; and, for that purpose, the said judge may issue a warrant against such person, under his hand, with or without seal, directed to the marshal or other officer authorized to execute criminal or civil process in behalf of the United States, to arrest such person and carry him before such judge. And in case the person so arrested shall In default, may neglect or refuse to give said recognisance in the manner required by said judge, the said judge may issue a warrant of commitment against such person, which shall be delivered to said officer, whose duty it shall be to convey such person to the prison mentioned in said mittimus. And the said person shall remain in confinement until he shall be

(a) By act 15 September 1789 2 5. which provides that all copies of records and papers in the office of the department of state, authenticated under the seal of the said department, shall be evidence equally as the original record or paper. 1 Stat. 69. Tit.

be committed.

"State Department," 7. See United States v. Cutter, 2 Curt. C. 0. 628. By act 31 May 18542, the records of the department of the interior may be certified in the same manner. 10 Stat. 297.

8 August 1846. removed to the court for the purpose of giving his testimony, or until he shall have given the recognisance required by said judge.

Ibid. ? 11. Defendants to

in certain cases,

government.

20. Whenever any indictment shall be pending in any court of the United States, and any defendant thereto shall make an affidavit setting forth that there are witnesses whose have process for evidence is material to his defence, and that he cannot safely go to trial without them, their witnesses, what he expects to prove by each of them, that they are within the district in which the at the cost of the court is held, or within one hundred miles of the place of trial, and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the court in term, or any judge thereof in vacation, may, if it appear proper to do so, order that such witnesses be subpoenaed, if found within the limits aforesaid; and in such case, the costs incurred by such process, and the fees of such witnesses, shall be paid in the same manner that similar costs and fees are paid, in case of witnesses subpoenaed in behalf of the United States.

20 May 1826 3 1. 4 Stat. 174.

21. The marshals for the several districts and territories of the United States be authorized to pay such persons as may have been, or shall hereafter be, imprisoned on Compensation of account of inability to give security in a recognisance for their attendance as witnesses on behalf of the United States, the same sum, for each day's imprisonment, as is provided by law for witnesses actually attending court under process: Provided, The said allowance be first fixed and certified by the proper judge, as in case of jurors.

witnesses whilst under commit

ment.

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1 Stat. 276.

4. Marshal to execute deed for lands sold by his predecessor. And complete execution levied.

5. Executions to run into any part of a state, divided into judicial districts. 6. Final process to conform to state practice.

8 May 1792 3 2. 1. On judgments in any of the cases aforesaid where different kinds of executions are issuable in succession, a capias ad satisfaciendum being one, the plaintiff shall have his Election of writs. election to take out a capias ad satisfaciendum in the first instance.

2 March 17938. 1 Stat. 335. Appraisement

2. Where it is now required by the laws of any state, that goods taken in execution on a writ of fieri facias, shall be appraised previous to the sale thereof, it shall be lawful for the appraisers appointed under the authority of the state, to appraise goods taken in to extend to ex- execution on a fieri facias issued out of any court of the United States, in the same

laws of the states

ecutions out of

the federal courts.

1 Stat. 515.

manner as if such writ had issued out of a court held under the authority of the state; and it shall be the duty of the marshal, in whose custody such goods may be, to summon the appraisers, in like manner, as the sheriff is by the laws of the state required to summon them; and the appraisers shall be entitled to the like fees as in cases of appraisements under the laws of the state; and if the appraisers, being duly summoned, shall fail to attend and perform the duties required of them, the marshal may proceed to sell such goods without an appraisement.

March 1797 2 6. 3. All writs of execution upon any judgment obtained for the use of the United States, (a) in any of the courts of the United States in one state, may run and be executed in any other state, or in any of the territories of the United States, but shall be issued from, and made returnable to the court where the judgment was obtained, any

Executions in

favor of the

United States

to run into any law to the contrary notwithstanding.

state, &c.

7 May 1800 3 3. 2 Stat. 61.

Marshal to execute deed for

lands sold by his

predecessor.

And complete

execution levied.

4. Whenever a marshal shall sell any lands, tenements or hereditaments, by virtue of process from a court of the United States, and shall die, or be removed from office,(b) or the term of his commission expire, before a deed shall be executed for the same by him to the purchaser; in every such case the purchaser, or plaintiff at whose suit the sale was made, may apply to the court from which the process issued, and set forth the case, assigning the reason why the title was not perfected by the marshal who sold the same; and thereupon the court may order the marshal for the time being to perfect the title, and execute a deed to the purchaser, he paying the purchase-money and costs remaining unpaid; and where a marshal shall take in execution any lands, tenements ↑ hereditaments, and shall die, or be removed from office, or the term of his commission expire, before sale, or other final disposition made of the same; in every such case, the like process shall issue to the succeeding marshal, and the same proceedings shall be had, as if such former marshal had not died or been removed, or the term of his commission had not expired.

5. All writs of execution, upon any judgment or decree, obtained in any of the disacts done by him before such notice are good. Bowerbank v Morris, Wall. 119.

(a) See United States v. Morris, 10 Wh. 281-2. (b) The old marshal is not removed by the appointment of a new one, until he receives notice of such appointment; and all

4 Stat. 184.

trict or circuit courts of the United States, in any one state, which shall have been, or 20 May 1826 2 1. may hereafter be, divided into two judicial districts, may run and be executed, in any part of such state; but shall be issued from, and made returnable to, the court where Executions to run into any the judgment was obtained, any law to the contrary notwithstanding.

part of a state.

6. Writs of execution and other final process issued on judgments and decrees, ren- 19 May 1828 3. dered in any of the courts of the United States, (a) and the proceedings thereupon, shall 4 Stat. 281. be the same, except their style, in each state, respectively, as are now used (6) in the Final process to ccurts of such state, (c) saving to the courts of the United States in those states, in which conform to state practice. there are not courts of equity, with the ordinary equity jurisdiction, the power of prescribing the mode of executing their decrees in equity, by rules of court: Provided howerer, That it shall be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to alter final process in said courts, as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.(d)

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9 Stat. 302.

1. In all cases in which there now exists, or hereafter may exist, any treaty or con- 12 Aug. 1848 1. vention for extradition between the government of the United States and any foreign government, (e) it shall and may be lawful for any of the justices of the supreme court By whom warrants may be or judges of the several district courts of the United States-and the judges of the issued. several state courts, and the commissioners authorized so to do by any of the courts of the United States, are hereby severally vested with power, jurisdiction and authority,(g) upon complaint made under oath or affirmation, 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 enumerated or provided for by any such treaty or convention-to issue his warrant for the apprehension of the person so charged, that he may be brought before such judge or commissioner, to the end that the evidence of criminality may be heard and considered; (h) and if, on such hearing, the Hearing.

(a) The United States, being an execution-creditor, is subject to this law. United States v. Knight, 14 Pet. 301.

(b) This applies only to state laws then existing. Catherwood v. Gapete. 2 Curt. C. C. 94. But it operates on all executions issued subsequent to its passage, without regard to the time when the judgments were rendered. Ross v. Duval, 13 Pet. 45.

(c) It adopts as part of the proceedings the rights secured by the then existing laws of the state, to an imprisoned debtor, to have the privilege of the jail limits. United States v. Knight, 14 Pet. 301. s. c., 3 Sumu. 358. And the forthcoming bond, in Mississippi, is part of the proceedings upon the final process, hereby adopted. Amis e. Smith, 16 Pet. 303. And see Hopkins's Case 2 Curt. C. C. 567. Freeman's Case, Ibid. 491.

(d) By act 1 August 1842, the provisions of this act, are made applicable to such states as have been admitted into the Union, since its passage. 5 Stat. 499. See Binns v. Williams, 4 McLean, 580.

(e) The international extradition of fugitives from justice is a duty of comity and not of strict right. 6 Opin. 85. It is a right which has no existence without, and can only be secured by a treaty stipulation. Case of Jose Ferreira dos Santos. 2 Brock. 493. In the absence of such stipulation, the law of nations leaves it optional with the executive. The British Prisoners, 1 W. & M. 67.

See Washburn's Case, 3 Wh. Cr. Cas. 473. United States v. Nash, Bee, 267. Robbins's Case, Hall's Journal of Jurisprudence, 13. All demands of international extradition must emanate from the supreme political authority of the demanding state. 7 Opin. 6. But when the reclamation of a fugitive is made under treaty sti pulations, it is the duty of the United States to aid in relieving the case of any technical difficulties which may be interposed to defeat the ends of public justice. Ibid. 536.

(g) A foreign government entitled by treaty to the extradition of a fugitive from justice. may apply to the courts in the first instance; but, if requested, the president will issue the previous authorization held to be necessary by a portion of the court in Kaine's Case, 14 How. 103. 6 Opin. 91. And, in granting his mandate, the president does not need such evidence of criminality as would justify an order of extradition; but only primâ facie evidence. 6 Opin. 217. 7 Ibid. 285. On the hearing, the judge may go behind the mandate to see whether a warrant of extradition should be issued. In the matter of Heilborn, 1 Parker, C. R. 429.

(4) The magistrate examines the case judicially; and his deci sion is not subject to any direction on the part of the president. 6 Opin. 91. Nor can it be re-examined on habeas corpus Metz ger's Case, 5 How. 176. Kaine's Cuse, 11 Ibid. 103.

Evidence to be

tary of state.

12 August 1848. evidence be deemed sufficient by him to sustain the charge under the provisions of the proper treaty or convention, it shall be his duty to certify the same, together with a copy certified to secre 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 said treaty or convention; (a) and it shall be the duty of the said judge or commissioner to issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.

Commitment.

Ibid. 2 2. Copies of depositions to be evi

dence.

Ibid. 2 3.

dition to agent of oreign govern

nent.

2. In every case of complaint as aforesaid, and of a hearing upon the return of the Warrant of arrest, copies of the depositions upon which an original warrant in any such foreign country may have been granted, certified under the hand of the person or persons issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be received in evidence of the criminality of the person so apprehended.

3. It shall be lawful for the secretary of state, under his hand and seal of office,(b) Secretary to issue to order the person so committed to be delivered to such person or persons as shall be warrant of extra- authorized, in the name and on behalf of such foreign government, to be tried for the crime of which such persons shall be so accused, and such person shall be delivered up accordingly; and it shall be lawful for the person or persons authorized as aforesaid, to hold such person in custody, and to take him or her to the territories of such foreign government, pursuant to such treaty; and if the person so accused shall escape out of any custody to which he or she shall be committed, or to which he or she shall be delivered as aforesaid, it shall be lawful to retake such person in the same manner as any person accused of any crime against the laws in force in that part of the United States to which he or she shall so escape, may be retaken on an escape.

Recaption in case of escape.

Ibid. 24.

charged if not conveyed out of within two months.

the United States

4. When any person who shall have been committed under this act, or any such Party to be dis- treaty, as aforesaid, to remain until delivered up in pursuance of a requisition, as aforesaid, shall not be delivered up pursuant thereto, and conveyed out of the United States within two calendar months after such commitment, over and above the time actually required to convey the prisoner from the jail to which he or she may have been committed, by the readiest way, out of the United States, it shall, in every such case, be lawful for any judge of the United States, or of any state, upon application made to him, by or on behalf of the person so committed, and upon proof made to him that reasonable notice of the intention to make such application has been given to the secretary of state, to order the person so committed to be discharged out of custody, unless sufficient cause shall be shown to such judge why such discharge ought not to be ordered.

Ibid. 5. Limitation of act. Ibid. 26.

5. This act shall continue in force during the existence of any treaty of extradition with any foreign government, and no longer.

6. It shall be lawful for the courts of the United States, or any of them, to authorize Courts to appoint any person or persons to act as a commissioner or commissioners, under the provisions commissioners. of this act; and the doings of such person or persons so authorized, in pursuance of any of the provisions aforesaid, shall be good and available to all intents and purposes whatever.(c)

9 Aug. 1842, art.

Criminals to be

For what offences.

II. TREATY WITH GREAT BRITAIN.

7. It is agreed that the United States and her Britannic majesty shall, upon mutual 10. 8 Stat. 576. requisitions by them, or their ministers, officers or authorities, respectively made, deliver delivered up, by up to justice, all persons who, being charged with the crime of murder, or assault with either party, on intent to commit murder, or piracy, or arson, or robbery, (d) or forgery, or the utterance requisition, &c. of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other: Provided, That this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed, (e) and the respective judges and other magistrates of the two goveri ments shall have power, jurisdiction and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates respectively, to the end that the evidence of criminality may be heard and

Evidence.

Jurisdiction.

(a) It is the duty of the secretary, in such case, to order the final writ of extradition, notwithstanding any contradictory pro ceedings of the courts of a state. 6 Opin. 270. And it is the duty of the marshal. disregarding any process of the state court, to take the party to the exterior line of such state, and there deliver him to the agent of the foreign government. Ibid. 290. And the United States will protect him in so doing. Ibid. 227, 237. See Veremaitre's Case, 3 Am. L. J. 438.

(b) The British Prisoners, 1 W. & M. 66.
(c) United States & Stowell, 2 Curt. C. C. 160.

(d) This treaty does not include the crime of larceny. 6 Opin. $5.

(e) The application need not be founded on a previous indict ment found against the prisoners by the British tribunals, or on any warrant issuing therefrom. The British Prisoners, 1 W. & M. 67. But there must be a complaint made on oath or affirma tion, which complaint must charge the fugitive with having com mitted one of the crimes provided for in the treaty. An insuffi cient complaint gives no jurisdiction to issue the warrant. In the matter of Heilborn, 1 Parker, C. R. 429. Sen 7 Opin. &

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