6 Am. Jurist, 226. There is not wanting judicial authority on the point.

In the matter of John L. Clark, 9 Wend., 212, on habeas corpus, 1832, it appeared that the prisoner was in custody by virtue of a warrant issued by the Governor of New York, under a requisition by the Governor of Rhode Island, charged with fraudulently abstracting money from the Burrilville Bank in that state, by the laws of which the act was made criminal and punishable by fine only. It was objected that no "crime" had been committed. The answer of the court was: "An offence of a highly immoral character is stated in the warrant, and is certified by the Governor of Rhode Island to have been made criminal by the laws of that state. This is evidence enough in this stage of the proceedings, of the nature of the offence."

It was further objected then that a crime of greater atrocity was intended by the Constitution than was charged in that case. The court answered: "It seems that when proceedings are instituted by the comity of nations, they apply only to crimes of great atrocity, or deeply affecting the public safety. But with the comity of nations we have at present nothing to do, unless, perhaps, to infer from it that the framers of our Constitution and laws intended to provide a more perfect remedy; one which should reach every offence criminally cognizable by the laws of any of the states; the language is, 'treason, felony or other crime;' the word crime is synonymous with misdemeanor, 4 Black. Com., 5, and includes every offence below felony, punished by indictment as an offence against the public."

In the matter of Hayward, 1 Am. Law Jour. N. S., 271, 1848, the Superior Court of the city of New York, said: "It is immaterial to consider what is the nature of the offence charged against the prisoner, for we have only to consider whether it be a crime according to the law of the state from which the party is alleged to have been a fugitive."

And of that opinion was the Supreme Court of Georgia, as expressed in the case of Johnston v. Riley, 13 Geo., 97.

The Supreme Court of Maine, in 1837, gave to the Governor of that state, their opinion on this and other points, in the following terms:

"In our opinion it is the duty of the executive of this state to cause to be delivered over to the agent of another state, at the request of the executive thereof, a citizen of this state, charged by indictment with the fraud before set forth, which, being indicted in such state, may be presumed to be there regarded as a crime, if the executive of this state is satisfied that such citizen has fled from justice from the state making demand, and not otherwise." 6 Am. Jurist, 226.

The Supreme Court of New Jersey, In the matter of Fetter, 3 Zab., 311, held that it is not necessary, in order to warrant the surrender or detention of the fugitive, that the crime with which he stands charged should constitute an offence at the common law. It was objected in that case that the indictment did not show an offence at common law. It purported to be for grand larceny, but the facts stated, it was claimed, did not constitute the crime. The court said: "Admitting the position taken by counsel, it is nevertheless certified by the Governor of

California, under the laws of that state. It is moreover an offence of a highly immoral character, and as appears by the bill of indictment, which must be regarded as prima facie evidence of the fact, is a crime by the law of the State of California."

SECTION III.

THE ACCUSATION.

Its form and when to be made. The act of Congress, Feb. 12, 1793, requires that the accusation should be by "indictment found, or an affidavit made before a magistrate of any state or territory." It is not necessary that the accusation should be made before the flight of the criminal. Gov. Fairfield's opinion, 6 Am. Jurist, 226.

Its sufficiency. A copy of the indictment or affidavit, "certified as authentic by the Governor or chief magistrate of the state or territory from whence the person so charged fled." "The object of this provision of the law is to enable the executive upon whom the demand is made, to determine whether there is probable cause for believing that a crime has been committed. The affidavit, therefore, when that form of evidence is adopted, must be at least so explicit and certain that if it were laid before a magistrate it would justify him in committing the accused to answer the charge." Gov. Seward of New York to Gov. McDonald of Georgia, June 15, 1841; Attorney Gen. of Penn. to Gov. Shunk, May 15, 1847, 6 Penn. Law Jour., 412; Ex parte Smith, 3 McLean,

121; Matter of Hayward, 1 Sandf. Sup. Ct. R., 701; Matter of Fetter, 3 Zab., 311.

SECTION IV.

THE FLIGHT OF THE ACCUSED.

There must be an actual fleeing from justice, and of this the governor of the state of whom the demand is made as well as of the state making it should be satisfied. This is commonly shown by affidavit. "In Hall's case in 1845, a long and angry controversy arose between the governors of New York and Pennsylvania. Judge Kane, then AttorneyGeneral of Pennsylvania, advised against surrender of the alleged fugitive, for want of an affidavit of actual fleeing. He based his opinion upon usage more than upon the words of the act of Congress." Kane's Letter to Gov. Shunk, March 14, 1845; 6 Penn. Law Jour., 412.

To the same effect was the advice of the Supreme Court of Maine before quoted, given to the governor in 1837.

Governor Fairfield in his opinion, 6 Am. Jurist, 226, says: "Each governor has the right of determining the fact whether the person charged be a fugitive from justice or not," and in respect to small crimes, at least, he thinks, that the mere production of an indictment should not be regarded as proof of the fact that the person indicted is a fugitive.

"Where a person, who committed a crime in a state where he was temporarily sojourning, departed

from it for his ordinary and permanent residence in Pennsylvania; the Attorney-General of the latter state, advised the Governor thereof that the person could not be considered a fugitive from justice under the Constitution and act of Congress." Lewis's Cr. Law, 266.

The Governor of Maine, 6 Am. Jurist, 226, expresses himself upon this point as follows:

"Now what will constitute a fleeing within the meaning of the Constitution? Making the charge in one state and finding the accused in another, will not. I am clearly of the opinion that where one is conscious of having committed treason, felony or other crime' in one state and leaves that state, knowing that by remaining he is subject to prosecution, a sufficient time not having elapsed or other circumstances occurred to remove all reasonable apprehension of a prosecution, he may fairly be regarded as a fugitive from justice within the meaning of the 4th art. of the Constitution."

The Superior Court of the city of New York, in 1844, In the matter of Adams, 7 Law Rep., 386, said:

"If a man within a state secretly commits a crime and suddenly departs, the crime not being discovered till months after his departure, though he may have left for purposes other than fleeing from the justice of the state against which he offended; yet he surely might be treated and proceeded against as a fugitive from justice. The consciousness of his having committed the crime, of his being amenable to the laws of the state against which he offended, might and would probably be regarded as the motive for going out of its limits, and form a legitimate basis for an executive requisition and surrender."