Where no arrest has been made at the time of the requisition, the governor upon whom the demand is made if satisfied that the case is properly made out under the constitution and act of Congress, issues his warrant for the arrest and surrender of the fugitive. This warrant is commonly addressed to the sheriff or other proper officer, and terminates the agency of the governor in the matter of extradition. Matter of Clark, 9 Wend., 212.

It is however competent for the governor if satisfactory reasons appear therefor to recall his warrant before execution. Opinion of Governor Fairfield, 6 Am. Jurist, 226. The governor of Ohio, in 1844, countermanded and revoked an order for the surrender of Richard Seymour. Matter of Adams, 7 Law Rep., 386.

In Pennsylvania instead of issuing final process of arrest and surrender, the governor in case of a requisition issues his precept to some judicial officer of the state, requiring and authorizing him to issue his warrant for the arrest of the criminal, to be brought before him in the usual way, and he proceeds to make the necessary examination so far as to ascertain that the act of Congress has been complied with; and then (the identity of the accused being established, and the authority of the agent shown), to make an order for the surrender of the fugitive, in pursuance of the warrant of the governor. Lewis's Cr. Law, 261.

This precept or warrant is required to possess the usual requisites of criminal process. In the case of Henry Thomas, alias Thomas Dean, who was arrested

in Lancaster county, Pennsylvania, for murder committed in the State of Ohio, the warrant from the governor of Pennsylvania, merely recited that the "governor of Ohio had given information that one Thomas Dean had been guilty of murder in that state," and Lewis, president judge of the district, to whom the warrant was directed, decided that such a recital unaccompanied by evidence, was insufficient; and the prisoner was not delivered up until a certified copy of the affidavit was furnished. Lewis Cr. Law., 262. The governor's warrant to arrest and surrender where it recites the facts necessary under the constitution and law, to give him jurisdiction ought to be at least prima facie evidence of the existence of these facts. The requisition and accompanying documents which form the basis of his official action, are or should be deposited amongst the public archives of the state, and may there be appealed to if their existence is so denied as to render their production necessary. They cannot reasonably be required to accompany the warrant of arrest and surrender, so as to make their absence a ground of discharge on habeas corpus, where the warrant properly recites them. Matter of Clark, 9 Wend., 212.

The opinion has been entertained in Pennsylvania, that the governor's warrant is not obligatory upon a judicial officer of the state; the judiciary being a coördinate department of the government, deriving its power equally with the executive, under the constitution. In one case a judge of the Court of Common Pleas refused obedience to the warrant. 2 Pa. Law Jour., 150; Lewis Cr. Law., 262.

It has been held that the Constitution and laws of the United States only refer to fugitives at large, and that if a fugitive be in actual confinement on criminal or civil process, he cannot be surrendered. In such cases the requisition should be lodged with the sheriff, whose duty it would be upon the prisoner's discharge from his previous arrest, to detain him thereon until notice could be given to the party presenting the requisition. In the matter of Troutman, 4 Zabr., 634.

SECTION VII.

THE REVISORY POWER OF THE JUDICIARY.

How far the action of the governor commanding the surrender of a fugitive from justice under the act of 1793, is subject to review before the judicial tribunals of the state is not well settled. It has been held in South Carolina (1814) that the demanding, apprehending and conveying away fugitives from justice under these provisions of the constitution and laws are ministerial acts, wholly entrusted to the management and discretion of the executive authority; that the making the demand, the transmission of the documents, the mode of their authentication, their validity and legal operation, are exclusively of executive cognizance, and that the judicial authority of the state from which they are sent has no control or jurisdiction over the subject. Where, therefore, certain persons were brought up before a judge of that state by habeas corpus, who were under arrest

by order of the executive of South Carolina for the purpose of being delivered to an agent of the executive of New York, who had demanded them as fugitives from justice in that state, bills of indictment being found against them in New York for bigamy, and their discharge was moved for on various grounds, the judge decided that he had no power or authority to discharge the prisoners, or in any way whatever to interfere with the mandate of the executive; and that it must be considered as a case excepted out of the state habeas corpus act by the operation of the Constitution and laws of the United States. Sergt. Const. Law, 395.

In the case of The State v. Schlemn, 4 Harr., 577, it appears that after the petitioner, Adams, was discharged by the Chief justice; in the case of The State v. Buzine, a requisition having been obtained from the governor of Pennsylvania and a warrant from the governor of Delaware, he was again arrested; whereupon he sued out another writ of habeas corpus before Ch. J. Booth, who was asked to look behind the warrants which were all regular, but he refused.

"Every person," says the Ch. Justice, "in this state who is restrained of his liberty under any color or pretence whatever, either for a civil or a criminal cause and apprehends or is advised that his imprisonment is illegal, is entitled as a matter of right to the writ of habeas corpus; unless his petition clearly and distinctly shows that he is legally detained for treason or felony plainly and fully set forth in the warrant of commitment; or detained under the judgment or the process thereon of a court of competent

civil or criminal jurisdiction; or that he is legally imprisoned by the authority of the United States or detained for such other legal and sufficient cause as satisfies the court or judge that no relief could be granted to the petitioner upon the return of the writ. It is in the nature of a writ of error to examine into the legality of the commitment; and for that purpose to bring up the body of the prisoner with the cause of his detention.

"Suggestions or exceptions against the return may be filed for the purpose of ascertaining material facts to enable the court or judge to determine whether the party ought to be bailed, remanded or discharged. In cases of imprisonment under warrants from our magistrates for offences committed within this state; or for offences perpetrated in another state, and the accused is committed to await the demand of the executive authority of such state, an inquiry is made into the circumstances of the case to ascertain the material fact, whether there is such proof or reasonable presumption of guilt as would be sufficient to put the party on trial. But if the return alleges that the prisoner was committed and is detained by virtue of the judgment and process thereon, of a court of competent jurisdiction, the existence of such judgment and process is the material fact to be ascertained. When ascertained it is sufficient legal cause for the prisoner's detention, and precludes all further inquiry. The court or judge awarding the habeas corpus cannot examine into the matters on which the judgment was rendered, and must remand the prisoner. So, in like manner, if the return to the habeas corpus sets forth that the party is a fugitive from justice, that he was demanded as such and was arrested and committed for the purpose of being surrendered; the only inquiry is, whether the provisions of the act of Congress of 1793 have been complied with. If that fact is shown by the return and by the warrant of the executive authority under which the fugitive