etc. A man having committed an offense in the State of Pennsylvania fled to the Territory of Utah, where he was apprehended and demand made upon the Governor of the Territory for his return by the Governor of Pennsylvania. Several objections were made in behalf of the accused. The first was that the requisition was not valid as it was not based upon the commission of a felony, but that view was held to be erroneous. It was further held that though the constitutional provision involved did not refer to fugitives from justice of any State, who might be found in óne of the Territories of the United States, nevertheless, the act of Congress had equal application to that class of cases, and the words, "treason, felony or other crime," must receive the same interpretation, when the demand for the fugitive is made, under that act, upon the Governor of a Territory, as when made upon the Governor of a State.27 So the word "State" includes the District of Columbia.28

For some years there was a difference of opinion in the Federal Courts on the question whether a fugitive from justice could be tried by the demanding State for a crime other than the one with which he was charged in the requisition of the demanding Governor. But it has been settled that a demanding State, after a fugitive from justice. has been returned to it, may try him for any offense which he committed there, however different from the one charged in the requisition of the demanding Governor, without first permitting him to return to the State from which he was extradited.29

But the rule is different when a fugitive from justice is extradited under the provisions of a treaty. In such case he cannot be punished for an offense different from that for which he has been extradited. This grows out of the treaty provision. Extradition treaties are construed in keeping with the highest and best faith and should not be construed so as to obtain the extradition of persons for one offense and their punishment for another.30

27 Ex parte Reggel, 114 U. S. 650; People of New York v. Commissioners, 211 U. S. 468, 474.

28 Price v. McCarty, 89 Fed. Rep. 84.

29 Lascelles v. Georgia, 148 U. S. 537-45.

30 Johnson v. Brown, 205 U. S. 309, 320, 321.

But this provision would not apply when the fugitive had committed an offense after his extradition, and in such case the country to which the fugitive is surrendered is entitled to decide which indictment he shall be tried upon.31

Both Federal and State judges have the right to issue a writ of habeas corpus and inquire into the legality of an arrest of an alleged fugitive from justice on the demand made by the Governor of another State.32

It was said in Holmes v. Jennison,33 by Mr. Justice Catron, "The uniform opinion heretofore has been that the States on the formation of the Constitution had the power of arrest and surrender in cases of fugitives from justice; and that so far from taking it away, the Constitution had provided for its exercise, contrary to the will of a State, in case of an unjust refusal; thereby settling, as among the States, the contested question, whether on a demand, the obligation to surrender was perfect and imperative, or whether it rested on comity and was discretionary."

It was held that the Cherokee Nation is neither a State nor a Territory in the sense in which these words are used in this clause, and in the act of Congress relating to extradition. Consequently a Governor of a State could not, under the laws and Constitution of the United States, issue a warrant of arrest upon a supposed fugitive from justice at the demand of the Chief of the Cherokee Nation.3 34

The courtesy due from one State to another requires the surrender to a demanding State of a person who has committed a crime in that State, while in another State. Thus, if a man, while in the State of Ohio, should shoot and kill a person in the State of Indiana, he could not be said to be a fugitive from justice from the latter State, but the comity existing between the States would require that the State of Ohio should surrender the accused to the State of Indiana, upon proper demand being made.35 In an application for a supposed fugitive from justice an information is not the equivalent of an indictment under

31 Collins v. O'Neil, 214 U. S. 113, 122, 123. 32 Robb v. Connolly, 111 U. S. 624, 637, 638. 33 14 Peters, 567.

34 Ex parte Morgan, 20 Fed. Rep. 307.

35 State v. Hall, 115 N. C. 811, 824.

the revised statutes of the United States, which require the surrender of a fugitive from justice on demand from another State upon the production of an indictment or affidavit, made before a magistrate, charging the defendant with a crime. Neither is the verification of an information on belief the equivalent of such an affidavit as the statute requires.36

The proper mode of determining if one is held under an extradition warrant as a fugitive from justice is by writ of habeas corpus, and it is the duty of the court to refuse to grant the writ of extradition unless it is shown by competent evidence that the accused is a fugitive from justice from the State which demands him. When a requisition is based upon an indictment that the offense was committed on a certain day-though the hour of the day was not specified-the supposed fugitive fails to overcome a prima facie case by proving that he was not at the place of the crime for a part of the day only, unless he does not disclose the hour at which the crime was committed, and unless also it appears that the supposed fugitive might have been at the place named a part of the day.

Where one is held in custody as a fugitive from justice under a warrant of extradition duly issued, he should not be discharged unless it is satisfactorily shown that he is not a fugitive from justice within the Constitution and laws of the United States.37

Though the extradition of an alleged fugitive from justice has been secured by fraud and connivance previously arranged between the authorities of the demanding and surrendering States in order to deprive him of an opportunity of applying for release before being surrendered to the demanding State for deportation, he cannot, when once within the demanding State, and in custody of its officers, be discharged on habeas corpus by a Federal Court. An agent of the demanding State is under no obligation arising from the Constitution or laws of the United States to arrange the arrest of a fugitive from justice, and his deportation from the State where arrested so as to allow him an opportunity for a hearing before some judicial tribunal.38

36 Ex parte Hart, 11 C. C. A. 165.

37 McNichols v. Pease, 207 U. S. 100, 110, 111, 112. 38 Pettibone v. Nichols, 203 U. S. 192-210-212.

:

Mr. Justice Harlan in his opinion in this case said (p. 214) "The United States do not recognize any right of asylum in the State where a party charged with a crime committed in another State is found; nor have they made any provision for the return of parties who, by violence and without lawful authority, have been abducted from a State; and, whatever effect may be given by a State court to the illegal mode in which a defendant is brought from another State no right secured under the Constitution and laws of the United States is violated by his arrest and imprisonment for crimes committed in the State into which he is brought."

A party having been indicted in Kentucky for murder fled to West Virginia and while in the latter State was arrested and forcibly taken to Kentucky by a body of armed men, and imprisoned in the latter State. Thereupon the Governor of West Virginia demanded of the Governor of Kentucky that the supposed fugitive from justice be released from confinement and permitted to return to the State of West Virginia, which request was refused. A writ of habeas corpus was asked for praying for the release of the prisoner. The case having been taken to the Supreme Court of the United States it was there held, that the laws of the United States did not recognize any right of asylum on the part of a fugitive from justice in any State to which he flees; nor is there any provision in the Constitution or laws of the United States, for the return of parties who, by violence and without lawful authority have been abducted from the State to which they have fled and taken to the State where the crime is supposed to have been committed. Consequently, there is no authority in the courts of the United States to act in such case. And there is no comity between the States. which requires a person within the jurisdiction of one State to be surrendered to another, though he may have been forcibly abducted from it.39

If the Executive of a State, upon whom a demand is made for the surrender of a fugitive from justice, declines to do so there is no way by which he can be compelled to surrender the fugitive. "The obligations which the act of Congress imposes upon an Executive of a State to surren89 Mahon v. Justice, 127 U. S. 700-715.

der a fugitive from justice when demand is made upon him to do so, were not used," said Chief Justice Taney, "as mandatory and compulsory, but as declaratory of the moral duty, which this compact created, when Congress had provided the mode of carrying it into execution; and there is no means provided by which to compel the execution of this duty, nor inflict any punishment upon neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Constitution of the United States which arms the Government with this power." The court further said: "Such a power would place every State under the control and dominion of the General Government and we think it clear that the Federal Government, has no power under the Constitution to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possesses this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might also impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State."40

Before one can be lawfully removed under this clause from one State to another it must appear, 1st, that he is charged in one State with treason, felony, or other crime; 2nd, that he has fled from justice; 3rd, that a demand is made for his delivery to the State wherein he is charged with crime. If either of these conditions are absent no warrant of arrest can be issued. But these provisions are made out when a crime is charged against the person whose return is sought, and an indictment is sufficient upon which to base an order for a return when it clearly describes a crime.41

The surrender by a country to which a fugitive from justice has fled, to the country from which he fled, is of comparatively modern origin. The rule now, however, is well established among civilized nations, and may be attributed to the influence which has been exerted by treaty regulations, as the surrender of a supposed fugitive from justice by one nation to another is now generally covered by the provisions of international treaties. Before 40 Commonwealth of Kentucky, v. Dennison, 24 Howard 107-108. 41 Pierce v. Creecy, 210 U. S. 387-401.