203 U.S.

Opinion of the Court.

violation of the Constitution or laws of the United States. It is true, as contended by the petitioner, that if he was not a fugitive from justice, within the meaning of the Constitution, no warrant for his arrest could have been properly or legally issued by the Governor of Colorado. It is equally true that, even after the issuing of such a warrant, before his deportation from Colorado, it was competent for a court, Federal or state, sitting in that State, to inquire whether he was, in fact, a fugitive from justice, and if found not to be, to discharge him from the custody of the Idaho agent and prevent his deportation from Colorado. Robb v. Connolly, 111 U. S. 624, 639; Ex parte Reggel, supra; Hyatt v. Corkran, 188 U. S. 691, 719; Munsey v. Clough, 196 U. S. 364, 374. But it was not shown by proof before the Governor of Colorado that the petitioner, alleged in the requisition papers to be a fugitive from justice, was not one, nor was the jurisdiction of any court sitting in that State invoked to prevent his being taken out of the State and carried to Idaho. That he had no reasonable opportunity to present these facts before being taken from Colorado 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 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 England, in the case of one arrested for the purpose of deporting him to another country, it is provided that there shall be no surrender of the accused to the demanding country until after the expiration of a specified time from the arrest, during which period the prisoner has an opportunity to institute habeas corpus proceedings. Extradition Act of 1870, 33 and 34 Vict. c. 52, § 11; 2 Butler on the Treaty-Making Power, § 436; 1 Moore on Extradition, 741, 742. There is no similar act of Congress in respect of a person

arrested in one of the States of the Union as a fugitive from the justice of another State. The speediness, therefore, with which the Idaho agent removed the accused from Colorado cannot be urged as a violation of a constitutional right and constitutes no legal reason for discharging him from the custody of the State of Idaho.

We come now to inquire whether the petitioner was entitled to his discharge upon making proof in the Circuit Court of the United States, sitting in Idaho, that he was brought into that State as a fugitive from justice when he was not, in fact, such a fugitive. Of course, it cannot be contended that the Circuit Court, sitting in Idaho, could rightfully discharge the petitioner upon proof simply that he did not commit the crime of murder charged against him. His guilt or innocence of that charge is within the exclusive jurisdiction of the Idaho state court. The constitutional and statutory provisions referred to were based upon the theory that, as between the States, the proper place for the inquiry into the question of the guilt or innocence of an alleged fugitive from justice is in the courts of the State where the offense is charged to have been committed. The question, therefore, in the court below was not whether the accused was guilty or innocent, but whether the Idaho court could properly be prevented from proceeding in the trial of that issue, upon proof being made in the Circuit Court of the United States, sitting in that State, that the petitioner was not a fugitive from justice and not liable, in virtue of the Constitution and laws of the United States, to arrest in Colorado under the warrant of its Governor and carried into Idaho. As the petitioner is within the jurisdiction. of Idaho, and is held by its authorities for trial, are the particular methods by which he was brought within her limits at all material in the proceeding by habeas corpus?

It is contended by the State that this question was determined in its favor by the former decisions of this court. This is controverted by the petitioner, and we must, therefore, and particularly because of the unusual character of this case and

the importance of the questions involved, see what this court has heretofore adjudged.

In Ker v. Illinois, 119 U. S. 436, it appeared that at the trial in an Illinois court of a person charged with having committed a crime against the laws of that State, the accused sought by plea in abatement to defeat the jurisdiction of the court upon the ground that, in violation of law, he had been seized in Peru and forcibly brought against his will into the United States and delivered to the authorities of Illinois; all of which the accused contended was in violation not only of due process of law as guaranteed by the Fourteenth Amendment, but of the treaty between the United States and Peru negotiated in 1870 and proclaimed in 1874. One of the articles of that treaty bound the contracting countries, upon a requisition by either country, to deliver up to justice persons who, being accused or convicted of certain named crimes committed within the jurisdiction of the requiring party, should seek an asylum or should be found within the territories of the other, the fact of the commission being so established "as that the laws of the country in which the fugitive or the person so accused shall be found would justify his or her apprehension and commitment for trial if the crime had been there committed." 18 Stat. 719, 720. The plea stated, among other things, that the defendant protested against his arrest and was refused opportunity, from the time of his being seized in Peru until he was delivered to the authorities of Illinois, of communicating with any person or seeking any advice or assistance in regard to procuring his release by legal process or otherwise.

The court overruled the plea of abatement, and the trial in the state court proceeded, resulting in a verdict of guilty. The judgment was affirmed by the Supreme Court of Illinois, and this court affirmed, upon writ of error, the judgment of the latter court. It was held by the unanimous judgment of this court that, so far as any question of Federal right was involved, no error was committed by the state court; and that, notwithstanding the illegal methods pursued in bringing

the accused within the jurisdiction of Illinois, his trial in the state court did not involve a violation of the due process clause of the Constitution, nor any article in the treaty with Peru, although the case was a clear one "of kidnapping within the dominion of Peru, without any pretense of authority under the treaty or from the Government of the United States." The principle upon which the judgment rested was that, when a criminal is brought or is in fact within the jurisdiction and custody of a State, charged with a crime against its laws, the State may, so far as the Constitution and laws of the United States are concerned, proceed against him for that crime, and need not inquire as to the particular methods employed to bring him into the State. "The case," the court said, "does not stand, when the party is in court, and required to plead to an indictment, as it would have stood upon a writ of habeas corpus in California, or in any States through which he was carried in the progress of the extradition, to test the authority by which he was held." In meeting the contention that the accused, Ker, by virtue of the treaty with Peru, acquired by his residence a right of asylum, this court said: "There is no language in this treaty, or in any other treaty made by this country on the subject of extradition, of which we are aware, which says in terms that a party fleeing from the United States to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled; indeed, the absurdity of such a proposition would at once prevent the making of a treaty of that kind.. It is idle, therefore, to claim that, either by express terms or by implication, there is given to a fugitive from justice in one of these countries any right to remain and reside in the other; and if the right of asylum means anything, it must mean this. The right of the government of Peru voluntarily to give a party in Ker's condition an asylum in that country, is quite a different thing from the right in him to demand and insist upon security in such an asylum. The treaty, so far as it regulates the right of asylum at all, is intended to limit this right in the case of one who is proved to

be a criminal fleeing from justice, so that, on proper demand and proceedings had therein, the government of the country of the asylum shall deliver him up to the country where the crime was committed. And to this extent, and to this alone, the treaty does regulate or impose a restriction upon the right of the government of the country of the asylum to protect the criminal from removal therefrom. We think

it very clear, therefore, that, in invoking the jurisdiction of this court upon the ground that the prisoner was denied a right conferred upon him by a treaty of the United States, he has failed to establish the existence of any such right."

If Ker, by virtue of the treaty with Peru, and because of his forcible and illegal abduction from that country, did not acquire an exemption from the criminal process of the courts of Illinois, whose laws he had violated, it is difficult to see how Pettibone acquired, by virtue of the Constitution and laws of the United States, an exemption from prosecution by the State of Idaho, which has custody of his person.

An instructive case on this subject is Mahon v. Justice, 127 U. S. 700. The Governor of Kentucky made a requisition upon the Governor of West Virginia for Mahon, who was charged with the crime of murder in Kentucky, and was alleged to have fled from its jurisdiction and taken refuge in West Virginia. While the two Governors were in correspondence on the subject a body of armed men, without warrant or other legal process, arrested Mahon in West Virginia, and by force and against his will conveyed him out of West Virginia, and delivered him to the jailor of Pike County, Kentucky, in the courts of which he stood indicted for murder. Thereupon the Governor of West Virginia, on behalf of that State, applied to the District Court of the United States for the Kentucky District for a writ of habeas corpus and his return to the jurisdiction of West Virginia. This court, after observing that the States of the Union were not absolutely sovereign and could not declare war or authorize reprisals on other States, and that their ability to prevent the forcible abduction of persons from

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