§ 3583. Under treaty with France. A fraudulent breach of trust by private persons, male grand larceny by statute in California, is not embraced within the terms of the convention between the United States and France for the reciprocal surrender of criminals. It is not provided for in the additional article which speaks of crimes included under the French law in the words vol qualifié crime." International Extradition,* 7 Op. Att'y Gen'l, 643. $3584. It is no impediment to the extradition of a criminal demanded by France, that he left France for cause of bankruptcy and not as a fugitive on account of the crime charged, since our convention includes "persons who . . shall seek an asylum, or shall be found, in the territories of the other." International Extradition,* 8 Op. Att'y Gen'l, 306.

§ 3585. The mode and manner prescribed in our treaty with France, for the surrender of fugitives from justice, is: "Requisitions made in the name of the respective parties through their respective diplomatic agents. The evidence upon which it is to be done is only when the fact of the commission of the crime shall be so established as that the laws of the country in which the fugitive or person so accused shall be found would justify his or her apprehension and commitment for trial if the crime had been there committed." The degree of evidence required in any case must depend on the law of the particular state in which the fugitive may be arrested or found. Extradition,* 4 Op. Att'y Gen'l, 330.

§ 3586. The eleventh section of the act of March 3, 1863, "providing a temporary govern ment for the territory of Idaho," declaring that the amount required to defray the expenses of the legislative assembly, etc., shall be expended by the secretary of the territory, who is required to account to the secretary of the treasury for the manner in which such money shall be expended; and the sixteenth section of the act of August 6, 1846, having declared that all officers and other persons charged with the safe-keeping, transfer or disbursement of the public moneys, who shall convert the same to their own use in any manner whatever, shall be deemed guilty of embezzlement, and having declared the offense to be a felony punishable by imprisonment for a term of years, the secretary of Idaho who converts to his own use public moneys in his possession, appropriated for legislative expenses, and flees to France, may be demanded as a fugitive under our treaty with that government, providing for the extradition of persons charged with various crimes, and, among others, "with embezzlement by public officers, when the same is punishable with infamous punishment." Imprisonment being an infamous punishment by the laws of France, the punishment is infamous by the laws of both countries. Gilson's Case,* 12 Op. Att'y Gen'l, 326.

$3587. An application for the extradition of a fugitive from France, for the crime of forgery committed in that country, which comes in due form through the ministry of foreign affairs of the French Empire, and is founded on a mandat d'arrêt issued, upon suitable evidence, by the proper judicial authority in France, and setting forth the crime imputed to the criminal, is sufficient ground for the president to issue a mandate authorizing judicial inquiry, although without the proofs on which it is founded the mandat would not be sufficient to sustain a final order of extradition. Extradition,* 7 Op. Att'y Gen'l, 285.

§ 3588. A revolt was committed on the high seas by the crew of an American vessel, who were neither citizens of the United States nor subjects of France, and the ship was thereby forced to put into a French port. On arrival the French authorities took temporary custody of the members of the crew at the request of the American consul. The French authorities afterwards redelivered a portion of the prisoners to the consul to be held on board the ves sel, and subsequently retook the same prisoners from on board the vessel, against the remon strance of the consul. It is held (1) that the consul acted lawfully in requesting the local authorities to take temporary charge of the prisoners; (2) that, no crime having been com mitted by these men within the territorial waters of France, her authorities had no power to retake the seamen from the vessel; (3) that all the crew must be considered as either having been wrongfully taken from our national custody by inadvertence of the local authority, which ought as a correction of the error to return them to our custody; or else they are to be regarded as prisoners held by the local authority pro tanto acting for us under the consular convention and bound to transfer them on demand to the direction of the consul in order to be replaced on board the vessel; (4) that an attempt to commit murder having been committed by these men on the putative territory of the United States, and the crime being justiciable by the federal courts alone, their extradition may be demanded under our convention with France, since the convention provides for the extradition of "persons who shall be found within the territories of the other." American Ships in Foreign Ports,* 8 Op. Att'y Gen'], 83. § 3589. Treaty with Great Britain of 1812.-Under the tenth article of our treaty with Great Britain, concluded August 9, 1842, making provision for the mutual surrender of fugitives from justice. "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 offense had been there committed,” the president has no authority to surrender a fugitive where there is nothing to

certify that there is such evidence, or that an offense within the treaty has been committed, or that any complaint has been made to any judge or magistrate of the government of the United States by whom such evidence has been heard and considered, as is required by the treaty. Extradition,* 4 Op. Att'y Gen'l, 240.

§ 3590. The treaty of Washington, between the United States and Great Britain, concluded August 9, 1842, providing for the surrender of fugitives from justice, having prescribed by its own terms the manner, mode and authority in and by which it shall be executed, and having indicated means suitable and efficient for the accomplishment of its objects, and left nothing to be supplied by legislative authority, no legislation by congress is necessary to render it effective. Extradition,* 4 Op. Att'y Gen'l, 201.

§ 3591. Treaty with Bavaria.— The extradition convention between the United States and Bavaria was not terminated by the adoption of Bavaria into the German empire in 1871. In re Thomas, 12 Blatch., 370.

*

§ 3592. Treaty with Prussia of 1852.- Under the language of our treaty of June 16, 1852, with Prussia, and other states of the Germanic confederation, that the contracting parties agree to mutually "deliver up to justice all persons who, being charged with" certain crimes "committed within the jurisdiction of either party, shall seek an asylum, or shall be found, within the territories of the other," viewed in connection with the entire language of the treaty, and the language of the preamble, that the convention is entered into "for the better administration of justice, and the prevention of crime within the territories and jurisdiction of the parties respectively," and in order "that persons committing certain heinous crimes, being fugitives from justice," shall, under certain circumstances, be reciprocally delivered up, it is held that a subject of Prussia, who has committed within the kingdom of Belgium a crime mentioned in the treaty, and has fled thence to this country, may be demanded by the Prussian government to be delivered up as a fugitive, the accused being, by the laws of Prussia, subject to be tried and punished for the offense in the kingdom of Prussia, although the offense was committed within the kingdom of Belgium. In re Stupp,* 11 Blatch., 124.

§ 3593. Our treaty with Prussia of June 16, 1852, provides for the mutual surrender of fugitives from justice for certain crimes "committed within the jurisdiction of either party." It is held that, under this treaty, Prussia cannot demand of the United States the extradition of a Prussian subject, who has committed a crime within the treaty in the territory of Belgium, and fled to the United States, although such crime was at the date of the treaty and still is punishable in Prussia by the laws of Prussia, though committed in Belgium. The words committed within the jurisdiction," as used in the treaty, do not refer to the personal liabilities of the criminal, but to locality. The locus delicti, the place where the crime was committed, must be within the jurisdiction of the party demanding the fugitive. Extradition,* 14 Op. Att'y Gen'l, 281.

2. Interstate.

SUMMARY Power of federal court to issue writ of habeas corpus, § 3594.- The crime must have been committed in the state making the demand, § 3595. — Federal government cannot coerce the executive of a state, § 3596.—What offenses included within the constitutional provision, §§ 3597, 3602.— Identity of party arrested; inquiry on habeas corpus, § 3598.— Mandate of governor conclusive, § 3599.— Duty of states to surrender fugitives, § 3600.— Right declared by the constitution is absolute, $ 3597,3601.- Not material as to the time an act was made a crime, § 3602.— Surrender, an executive act, § 3603.- Evidence need not be attached to warrant; requiring production of record, § 3604.—-Warrant must show that it was issued on proper demand, § 3605.— Proof that alleged fugitive has fled from state making demand, § 3606.— Liability of state agent, § 3607, 3603.

§ 3594. A federal court may, by a writ of habeas corpus, inquire into the legality of the restraint of a person in custody under a warrant issued by the executive of a state, ordering his surrender to the authorities of another state, which has demanded him as a fugitive from justice, under the constitutional provision providing for such surrender, and the act of congress carrying it into effect. Such a person is confined "under color of or by virtue of the authority of the United States," and the judiciary act of 1789 gives the federal courts power to issue a habeas corpus in such cases. Ex parte Smith, $ 3609-14.

§ 3595. The provision in the constitution, declaring that "a person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime," does not authorize a surrender unless the crime was committed in the state making the demand, and the person demanded

actually fled from such state into the state from which he is demanded. A citizen of the latter state cannot be demanded by the former for being accessory to a crime committed in the former while he was at the time in the territory of the latter. Ibid. See § 3640.

§ 3596. Although the constitution declares that fugitives from justice "shall, on demand of the executive authority of the state from which he fled, be delivered up;" and the act of February 12, 1793, providing the regulations necessary to carry this compact into execution, declares that, on compliance with these regulations, "it shall be the duty of the executive authority of the state or territory to which such person shall have fled to cause him to he arrested and secured,” and to cause him to be delivered to the agent of the state making the demand; and although the duty of the executive under this act is merely ministerial, the performance of this duty is left to depend on the fidelity of the states executing the compact, and there is no power delegated to the general government, either through the judicial or any other department, to use any coercive means to compel a state executive to make the surrender. Kentucky v. Dennison, Governor, etc., §§ 3615–25.

$8597. The constitutional provision that "a person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime," includes every offense made punishable by the law of the state in which it was committed. The right to "demand" implies that it is an absolute right, and there must be a correlative obligation to deliver, without any reference to the character of the crime charged, or the policy or laws of the state to which the fugitive has fled. Ibid.

$3598. In interstate extradition cases the identity of the party arrested with the party for whose arrest a warrant has been issued is always an open question and may be tested on habeas corpus. In re Leary, § 3626-35.

§ 3599. In an interstate extradition case the mandate of the governor is conclusive proof that the person therein named is charged with a crime in the state demanding his extradition. Ibid.

§ 3600. The duty of delivering up fugitives from justice, as between independent states and nations, unless affected by treaty, rests wholly on principles of comity, that is, upon the natural inclination of states on terms of amity with each other to concede to each other such reasonable favors on request as shall not be inconsistent with their own interests, or the rights and interests of their own subjects or citizens, and to secure to themselves a reciprocity of benefits of the exchange of such friendly offices. Ibid.

§3601. The language of the constitution providing for interstate extradition is imperative, and the right of surrender thus declared is an absolute right. Ibid.

§ 3602. The word "crime," used in the extradition clause of the constitution, embraces every species of offense made punishable as a crime by the laws of the state making the demand, even though it is not a crime by the common law, or by the law of the state to which the accused has fled, and even though made a crime by a law passed subsequent to the adoption of the constitution and the passage of the act of congress regulating such extradition. Ibid. justice is an executive act, and in cases of interIbid.

$ 3603. The surrender of fugitives from state extradition is lodged in the governor. § 3604. In an interstate extradition case the governor issuing the warrant of arrest is not required to attach to it the evidence on which he acted, or a copy of it, nor can a federal court issue certiorari to the governor requiring the production of the record. Ibid.

§ 3605. A warrant of extradition issued by the governor of a state, on demand of the governor of another state, must show prima facie that it has been issued on proper demand and proof. The facts necessary to give executive jurisdiction must be stated or recited in the warrant. In re Jackson, § 3636-37.

§ 3606. Before the governor of a state can issue his warrant for the arrest of a person charged with a crime in another state, it must be shown by evidence making a prima facie case that such person has fled from the demanding state. This must be shown by competent evidence, as the fact of fleeing lies at the foundation of the right to issue such warrant. The certificate of the demanding governor is no evidence of the fact. It is as essential to the right of arrest and extradition to prove to the satisfaction of the governor on whom the demand is made that the person.charged with the crime has fled from justice as to prove that he is charged with crime in the state making the demand. The evidence must not only be satisfactory to the governor, but it must be legally sufficient. A copy of the indictment, or a sworn complaint certified by the demanding governor, is sufficient proof of the charge of crime, and that the defendant has fled from justice should be proved by sworn evidence such as would authorize a warrant of arrest in any other case. Ibid.

3607. Where the agent of a state in an interstate extradition proceeding is arrested for malicious prosecution for acts done by him as such agent he is entitled to a writ of habeas corpus from a federal court. In re Titus, § 3638.

§ 3608. No personal liability is incurred by the agent of a state in an interstate extradition proceeding for acts done by him as such agent, though the indictment in the state demanding extradition did not show an offense cognizable by the state courts, and though the agent acted maliciously, if he acted within the scope of his duty as agent. Ibid. [NOTES.-See §§ 3639-3646.]

EX PARTE SMITH.

(Circuit Court for Illinois: 3 McLean, 121-139. 1842.)

STATEMENT OF FACTS.- Proceedings on a writ of habeas corpus issued by the federal court to the sheriff of Sangamon county, Illinois. The sheriff made return that he held the petitioner by virtue of a warrant issued by the gov ernor of Illinois, upon a requisition by the governor of Missouri. The affidavit on which the requisition was made stated that the affiant (Lilburn W. Boggs), "while sitting in his dwelling in the town of Independence, in the county of Jackson, he was shot with intent to kill," etc., "and that he believes, and has good reason to believe, etc., that Joseph Smith was accessory before the fact of the intended murder; and that the said Joseph Smith is a citizen or resident of the state of Illinois." There was no allegation that Smith had fled from the state, or that he was ever in the state; but the requisition of the gov ernor of Missouri and the warrant of the governor of Illinois stated that he had fled from the state of Missouri and had taken refuge in Illinois. Opinion by POPE, J.

The importance of this case, and the consequences which may flow from an erroneous precedent, affecting the lives and liberties of our citizens, have impelled the court to bestow upon it the most anxious consideration. The able. arguments of the counsel for the respective parties have been of great assistance in the examination of the important question arising in this cause.

When the patriots and wise men who framed our constitution were in anxious deliberation to form a perfect union among the states of the confederacy, two great sources of discord presented themselves to their consideration; the commerce between the states and fugitives from justice and labor. The border collisions in other countries had been seen to be a fruitful source of war and bloodshed, and most wisely did the constitution confer upon the national government the regulation of those matters, because of its exemption from the excited passions awakened by conflicts between neighboring states, and its ability alone to adopt a uniform rule, and establish uniform laws among all the states in those cases.

3609. The circuit court may, on habeas corpus, inquire into the cause of detention of an alleged fugitive arrested on the warrant of the governor of a

state.

This case presents the important question arising under the constitution and laws of the United States, whether a citizen of the state of Illinois can be transported from his own state to the state of Missouri, to be there tried for a crime, which, if he ever committed, was committed in the state of Illinois; whether he can be transported to Missouri, as a fugitive from justice, when he has never fled from that state.

Joseph Smith is before the court, on habeas corpus, directed to the sheriff of Sangamon county, state of Illinois. The return shows that he is in custody under a warrant from the executive of Illinois, professedly issued in pursuance

of the constitution and laws of the United States, and of the state of Illinois, ordering said Smith to be delivered to the agent of the executive of Missouri, who had demanded him as a fugitive from justice, under the second section, fourth article, of the constitution of the United States, and the act of congress passed to carry into effect that article. The article is in these words, viz.: "A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime." The act of congress made to carry into effect this article directs that the demand be made on the executive of the state where the offender is found, and prescribes the proof to support the demand, viz., indictment or affidavit.

The court deemed it respectful to inform the governor and attorney-general of the state of Illinois of the action upon the habeas corpus. On the day appointed for the hearing, the attorney general of the state of Illinois appeared, and denied the jurisdiction of the court to grant the habeas corpus.

1st. Because the warrant was not issued under color or by authority of the United States, but by the state of Illinois.

2d. Because no habeas corpus can issue in this case from either the federal or state courts, to inquire into facts behind the writ. In support of the first point, a law of Illinois was read, declaring that whenever the executive of any other state shall demand of the executive of this state any person as a fugitive from justice, and shall have complied with the requisition of the act of congress in that case made and provided, it shall be the duty of the executive of this state to issue his warrant to apprehend the said fugitive, etc. It would seem that this act does not purport to confer any additional power upon the executive of this state, independent of the power conferred by the constitution and laws of the United States, but to make it the duty of the executive to obey and carry into effect the act of congress. The warrant on its face purports to be issued in pursuance of the constitution and laws of the United States, as well as of the state of Illinois. To maintain the position that this warrant was not issued under color or by authority of the laws of the United States, it must be proved that the United States could not confer the power on the executive of Illinois. Because if congress could and did confer it, no act of Illinois could take it away, for the reason that the constitution, and laws of the United States passed in pursuance of it, and treaties, are the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. This is enough to dispose of that point. If the legislature of Illinois, as is probable, intended to make it the duty of the governor to exercise the power granted by congress, and no more, the executive would be acting by authority of the United States. It may be that the legislature of Illinois, appreciating the importance of the proper execution of those laws, and doubting whether the governor could be punished for refusing to carry them into effect, deemed it prudent to impose it as a duty, the neglect of which would expose him to impeachment. If it intended more, the law is unconstitutional and void. Prigg v. Pennsylvania, 16 Pet., 617.

§ 3610. On habeas corpus the acts of an executive officer may be reviewed and his reasons passed upon.

In supporting the second point, the attorney-general seemed to urge that there was greater sanctity in a warrant issued by the governor than by an in