In Pettibone v. Nichols1 the court held that because the surrendered one had been given no opportunity at the time of his arrest to test in the courts of the surrendering State the legality of the extradition, no federal right had been violated. "That he had no reasonable opportunity to present these facts before being taken from Colorado," said the court," constitutes no legal reason why he should be discharged from the custody of the Idaho authorities. No obligation was imposed by the Constitution or laws of the United States upon the agent of Idaho to so of irritation between the States, which might arise from giving asylum to each other's criminals, and from violently invading each other's territory to capture them. It clearly implies that there shall be no resort to force for this purpose. The Constitution has abrogated, and the States have surrendered, all right to obtain redress from each other by force. The Constitution was made to establish justice' and 'insure domestic tranquillity;' and to attain this end as between the States themselves, the judicial power was extended to controversies between two or more States,' and they were enjoined to deliver up to each other fugitives from justice when demanded, and even fugitives from service. This manifest care to provide peaceable means of redress between them is utterly irreconcilable with any right to redress themselves by force and violence; and, of course, what is unconstitutional for the States is unconstitutional for their citizens. . . . A requisition would not apply. That is provided for by the extradition of fugitives from justice. It would apply for the delivery up of the kidnappers, but not for the restoration of their victim. It is a special constitutional remedy, addressed by the exccutive of one State to the executive of another, imposing a constitutional duty of extradition when properly made in a proper case. But the present case is a different one. It is not the surrender of a fugitive from justice which is sought, but the surrender of a citizen unconstitutionally abducted and held in custody. There must be some remedy for such a wrong. It cannot be that the States, in surrendering their right of obtaining redress by military force and reprisals, have no remedy whatever. It was suggested by the counsel that the State of West Virginia might sue the State of Kentucky for damages. This suggestion could not have been seriously made. No; the remedy adopted was the proper Habeas corpus is not only the proper legal remedy, but a most salutary one. It is calculated to allay strife and irritation between the States by securing a judicial and peaceful decision of the controversy."

one.

In Ker v. Illinois (119 U. S. 436; 7 Sup. Ct. Rep. 225; 30 L. ed. 421) the plaintiff urged that in violation of law he had been seized in a foreign country and forcibly brought against his will into the United States, in violation of a treaty between the United States and the foreign country, and in violation of the Fourteenth Amendment. The court held, in a unanimous opinion, that notwithstanding the illegal methods pursued in bringing the accused within the State, there had been no violation of a federal right.

12 203 U. S. 192; 27 Sup. Ct. Rep. 111; 51 L. ed. 148.

time the arrest of the petitioner, and so conduct his deportation. from Colorado as to afford him a convenient opportunity before some judicial tribunal sitting in Colorado, to test the question whether he was a fugitive from justice, and, as such, liable, under the act of Congress, to be conveyed to Idaho for trial there."

In this case it was decided also that the fact that the illegal abduction from the State was by persons acting under the authority of that State did not take the case out of the operation of the doctrine laid down in the Mahon case.13

§ 109. Trial for Offenses Other than Those for which Extradited. In United States v. Rauscher1 was considered the question whether a fugitive extradited from a foreign country in pursuance of a treaty between that country and the United States covering the crime charged, could, after coming into the custody of the United States, be tried upon another minor offense not covered by the treaty. The court held that he could not be.15

In Lascelles v. Georgia,16 however, it was held that, as to fugitives from one State of the Union to another, this may be done. "The fallacy of the argument [that this may not be done]," said the court, "lies in the assumption that the States of the Union occupy toward each other, in respect to fugitives from justice, the relation of foreign nations, in the same sense in which the General Government stands toward independent sovereignties on that subject; and in the further assumption that a fugitive from justice acquires in the State to which he may flee some state or personal right to protection, improperly called a right of asylum, which secures to him exemption from trial and punishment for a crime committed in another State, unless such crime is made the special object or ground of his rendition. The sole object of the provision of the Constitution and act of Congress to carry it into effect is to secure the surrender of persons accused of crime who have fled from the justice of a

13 Justice McKenna dissented as to this.

14 119 U. S. 407; 7 Sup. Ct. Rep. 234; 30 L. ed. 425.

15 Chief Justice Waite dissented. See also Cosgrove v. Winney, 174 U. S. 64; 19 Sup. Ct. Rep. 598; 43 L. ed. 897.

16 148 U. S. 537; 13 Sup. Ct. Rep. 687; 37 L. ed. 549.

State, whose laws they are charged with violating. Neither the Constitution, nor the act of Congress providing for the rendition of fugitives upon proper requisition being made, confers, either expressly or by implication, any right or privilege upon such fugitives under and by virtue of which they can assert, in the State to which they are returned, exemption from trial for any criminal act done therein." 17

§ 110. Who is a "Fugitive."

"To be a fugitive from justice .. it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a State committed that which by its laws constitutes a crime, when he sought to be subjected to

17 The opinion continues: The case of United States v. Rauscher has no application to the question under consideration. because it proceeded upon the ground of a right given impliedly by the terms of a treaty between the United States and Great Britain, as well as expressly by the acts of Congress in the case of a fugitive surrendered to the United States by a foreign nation. That treaty which specified the offenses that were extraditable, and the statutes of the United States passed to carry it and other like treaties into effect, constituted the supreme law of the land, and were construed to exempt the extradited fugitive from trial for any other offense than that mentioned in the demand for surrender. There is nothing in the Constitution or statutes of the United States in reference to interstate rendition of fugitives from justice which can be regarded as establishing any compact between the States of the Union, such as the Ashburton treaty contains, limiting their operation to particular or designated offenses. On the contrary, the provisions of the organic and statutory law embrace crimes and offenses of every character and description punishable by the laws of the State where the forbidden acts are committed. It is questionable whether the States could constitutionally enter into any agreement or stipulation with each other for the purpose of defining or limiting the offenses for which fugitives would or should be surrendered. But it is settled by the decision of this court that, except in the case of a fugitive surrendered by a foreign government, there is nothing in the Constitution, treaties, or laws of the United States which exempts an offender, brought before the courts of a State for an offense against its laws, from trial and punishment, even though brought from another State by unlawful violence or by abuse of legal process." Citing Ker. v. Illinois, 119 U. S. 436; 7 Sup. Ct. Rep. 225; 30 L. ed. 421; Mahon v. Justice, 127 U. S. 700; 8 Sup. Ct. Rep. 1204; 32 L. ed. 283; Cook v. Hart, 146 U. S. 183; 13 Sup. Ct. Rep. 40; 46 L. ed. 934.

its criminal process to answer for his offense, he has left its jurisdiction and is found within the territory of another." 18

In Appleyard v. Massachusetts19 it was held that the belief of the accused, when leaving the demanding State, that he had not committed a crime against the State, did not prevent his being a fugitive from justice within the meaning of the Constitution and the acts of Congress relating to extradition. To be a fugitive from justice, it was declared, it is only necessary that the accused should have been within the demanding State at the time the crime was committed, and that thereafter he be found within the borders of another State. A fugitive from justice when apprehended in the State to which he has fled, and held for extradition, though restrained of his liberty, under color of authority derived from the Constitution and laws of the United States, is not in the custody of the United States, but of the States. When so apprehended, however, the fugitive has the right to test the lawfulness of his arrest by writ of habeas corpus issued either by a state or federal court.2

20

In Hyatt v. New York21 it was definitely held, without qualification, that in order to be a "fugitive from justice" within the meaning of the constitutional clause, and of the statutes relating thereto, the person sought to be extradited must have been actually, and not merely constructively, within the demanding State at the time the crime charged was committed. Furthermore, in this case it was held that one who came into the State on business for a single day eight days after the alleged commission of the crime, and months before indictment found, was not, by his departure therefrom, thereby brought within the terms of the statute providing for rendition.22

18 Roberts v. Reilly, 116 U. S. 80; 6 Sup. Ct. Rep. 291; 29 L. ed. 544. 19 203 U. S. 272.

20 Roberts v. Reilly, 116 U. S. 80; 6 Sup. Ct. Rep. 291; 29 L. ed. 544. 21 188 U. S. 691; 23 Sup. Ct. Rep. 456; 47 L. ed. 657.

22" It is sufficient for the party charged to show that he was not in the State at the times named in the indictments; and when these facts are proved so that there is no dispute in regard to them, and there is no claim of any error in the dates named in the indictments, the facts so proved are sufficient to show that the person was not in the State when the crimes were, if ever, committed."

§ 111. Fugitive Slaves.

The same section of Article IV which provides for the extradition of fugitives from justice, provides that "no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." This clause is practically obsolete.23 An elaborate examination of the obligations imposed upon the States, and of the extent of concurrent legislative power in the premises is found in Prigg v. Pennsylvania.24

23 The question has been raised whether, since the adoption of the Thirteenth Amendment, the fugitive slave clause of the Constitution has become completely obsolete. It is generally so held, but possibly not correctly so. The clause in question, it will be observed, does not employ the word slaves. Its words are sufficiently broad to make the clause cover not only slaves but minor apprentices and possibly others owing services under contract. Indeed, Charles Sumner in a debate in the United States Senate in 1864 maintained that, properly interpreted, it applied only to such and not to slaves at all. (Congressional Globe, 1st Sess., 38th Cong., Pt. II, pp. 1711, 1750). The Thirteenth Amendment abolishes not only slavery but all "involuntary servitude," and it has been held that this renders illegal an attempt to compel, upon the part of adults, the performance of any personal services, whether provided for by contract and already compensated for, or not. Of course, however, damages for breach of contract to render personal services, may be awarded. But this does not render illegal state laws compelling the performance of personal services on the part of minor apprentices, and if this be so, it would seem that a minor apprentice escaping from a State where his services may be compelled, into another State, under a proper law for the purpose, be claimed and removed to the State from which he fled. The subject of peonage will be considered in a later chapter.

24 16 Pet. 539; 10 L. ed. 1060.