pro MANELLA, PUJALS & CO. V. been mentioned in his letter. But Barry was neither the sule nor the principal agent. He was known to the plaintiff's only by recommendation, and while he was employ- J. BARR. ed, because an American merchant could make the posed purchases to greater advantage, and because an American name was required to cover the property. Menendez was the confidential agent, known to and trusted by the plaintiffs, who brought with him the order for the purchases, and came on purpose to attend to the conveyance of the tobacco to Europe. In the instructions to Menendez, therefore, would any discretion relative to the transportation of the tobacco be found, and it was enough that Barry was referred to his verbal communi cations. The words which follow the reference to the verbal communications of Menendez, though not those which decide the opinion of the court, are not absolutely unimportant: they are," and you will, upon the whole, act for the advantage of the parties interested." To what do these words, "upon the whole," refer? Unquestionably to the verbal communications as well as to the written instructions. They were both to regulate the conduct of the defendant. The caution which follows these words, is understood by the counsel for the plaintiffs, to limit their extent, and to direct, that in acting for the advantage of the interested, he was yet to keep secret, that the tobacco belonged to foreigners. There is, unquestionably, great force in this observation and if the justification of Barry rested solely on the power given him in this clause, to act for the best, it would be doubtful how far it would avail him. The court, however, considers those words principally applying to the purchases, and as indicative of an expectation that a state of things would remain, in which the tobacco was to retain the character of American property, rather than as limiting the powers of Menendez over this part of the subject, in the event of such a revolution as would make America a belligerent. The court forbears to make a critical examination of the words, because its opinion is formed on the character in which Menendez came, to America, as stated in the letter introducing him to Ba ry. That letter warranted the belief that he was the prins cipal and confidential agent of the plaintiffs; that he had particular instructions for the government of his conduct, and that Barry was to receive and trust his verbal communications, especially on the subject of expediting the tobacco to Spain. It is impossible to read the letters from Menendez to Barry, which form a part of the bill of exceptions, without feeling a conviction that this was the understanding of the parties. He approves the conduct of the defendant, in the stile of a man whose approbation gave a sanction to it, and when he directs the shipments to be made in the name of Charles Longhy, of Genoa, he says, "if you act conformably to what I have here mentioned, as to further shipments, I, from this moment, approve thereof, and that it may appear, and to save you from any accident that may occur, as also, that such has been with my knowledge and approbation, you are to keep this letter in your possession, in order, that at no time whatever, you should be chargeable with the consequences." Such was the opinion which the confidential agent of the plaintiffs, in possession of their private instructions, entertained of his own powers. He was not mistaken in their extent; at least, the defendant had no right to believe him mistaken. On his arrival, he declared to Barry, that he was in possession of private instructions, distinct from those which were contained in the letter of the 27th of January. He produced those instructions. The chief clerk of Barry read so much of them as related to vessels, and they did not require that the shipments should be made in American, but in neutral vessels; and in the letter of Menendez to the chief clerk, dated on the 14th June, and accompanying that of the same date, addressed to the defendant, directing him to ship the tobacco as the property of Charles Longhy, of Genoa, he says, referring to a copy of his private instructions, แ you will 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 communi- . cations 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 produc tion. 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 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 authorised 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 January, represented him as the principal and confidential agent of the plaintiffs, whose verbal communications were to be trusted. He 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. MANELLA, PUJALS & CO. V. J. BARRY. 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. EX PARTE BURFORD Affirmed. EX PARTE A warrant of commitment by justices of the peace, must state a by oath. JOHN ATKINS BURFORD, a prisoner confined in the jail of the county of Alexandria, in the district of Columbia, petitioned this court for a habeas corpus, to inquire into the cause of his commitment, alleging good cause cer- that he was confined under and by colour of process of tain, supported 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 jailor 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, § 9, declarés, "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, vol. 1, p. 58, it is enacted, "that all the before mentioned 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 could 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 corbus, and certiorari, it appeared, that on the 28th of December, 1805, Burford was committed to the jail 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 EX PARTE |