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A. S. Sullivan (Peter Mitchell, attorney), for the petitioner.

W. Britton (A. W. Bookstaver, attorney), for the sheriff.

CHOATE, J.-[After stating the facts.]-The prisoner has shown that he has applied to the governor of New York for these papers or copies of them, and that the governor has declined to furnish them. He has also used due diligence to obtain copies of them from the governor of Massachusetts, but he has declined to furnish them. And the counsel for the prisoner has applied to the court for its aid by some compulsory process to obtain this evidence, and upon the case as it stands if these papers would when produced be competent evidence in his behalf and if the court has the power to compel their production, a case has been made out for a postponement of the cause for the issue and return of process for this purpose.

On the other hand it is contended by the respondent that the mandate of the governor is not only prima facie but conclusive evidence in these proceedings of the fact that the prisoner is "charged with crime" within the meaning of the constitution and the act of Congress, that the papers on which the governor acted would not be if produced competent evidence, and that there is no power in the court to compel their production.

This question depends upon the construction of the clause of the constitution relating to fugitives from justice, and the act of Congress which was passed to carry it into effect. The clause of the constitution is as follows: "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

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State having Jurisdiction of the Crime."*

And the

act of Congress, passed in 1793,† to carry this constitutional provision into effect, and to provide a mode of procedure under it, is as follows: "Section 1. Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the prisoner so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him or her to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear." Section 2 authorizes such agent to transport the person so delivered to him, to the State from which he shall have fled.

is

For the proper understanding of these provisions, it necessary to consider the nature of the subject matter thus regulated, and the existing state of affairs at the time of the adoption of the constitution and the passage of this statute. The duty of delivering up fugitives from justice as between States and nations, unless affected by treaty,-that is, by express contract between them,―rests wholly on principles of comity,—that is, upon the national inclination of States on terms of amity with each other, to concede to each other such reasonable favors on request as shall not be incon

* U. S. R. S., 2nd Ed. p. 26.

† See U. 8. R. 8., § 5278, 2nd Ed. p. 1022.

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sistent with their own interests, or the rights and interests of their own subjects or citizens, and to secure for themselves a reciprocity of benefits by the exchange of such friendly offices. And while some continental jurists have claimed that the surrender of fugitives from justice in case of atrocious crime may be demanded as a right by one State of another, this right has in England and in this country been denied to have any existence (Story on Conflict of Laws, § 628, authorities cited; Opinions of Jefferson, Monroe, and Clay, cited in Hurd on Hab. Corp. 2nd Ed. 578, 579. And see Holmes v. Jennison, 14 Pet. 540).

It has been said that "prior to the American revolution a criminal flying from one English colony into another found no protection, but was arrested by the authorities of the territory into which he fled, and delivered up for trial within the jurisdiction where the offense was committed; and this because the several colonies formed but parts of the same empire under a common sovereign, and therefore presented no opportunities for the conflict of the rights and duties of independent sovereigns" (Letter of Judge Bell to the Governor of Pennsylvania, 2 Penn. Law J. 150).

It appears, however, that the practice of returning such fugitives, as between the American colonies, rested, partly at least, on treaties between the several colonies (Treaty between the Colonies of Massachusetts, New Plymouth and Connecticut referred to, Chief Justice TANEY in Kentucky v. Dennison, 24 How. U. S. 66, 101). But whatever may have been the practice in this respect, between the colonies, on whatever basis of law or treaty it rested, there is no doubt that when the colonies achieved their independence they stood towards each other, as regards the matter, in the position of independent States; and the surrender of fugitives from justice became as with other sovereign States, purely a matter of comity except so far as it was or should be regulated

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by treaty or compact between them. And yet the manner in which the country had been settled, and the artificial character of the State boundaries,-the dividing lines between them having been fixed with little or no regard to natural barriers or lines of defense, running in some cases in the close vicinity of cities or large towns, being in fact such boundaries as could only have been produced or continued during a long period of peace between the colonies, -the escape of fugitives from one of the States to another was peculiarly easy, and the mischiefs thus resulting threatened not only the domestic peace of the States, but also their friendly relations with each other, unless some reasonable regulation thereof was effected. And when the Articles of Confederation were adopted, a provision was made for the surrender of fugitives from justice, almost identical with that afterwards incorporated into the constitution of the United States.

The language of the constitution is, as regards the nature of the duty to deliver the fugitives, imperative and unequivocal: "A person charged with Treason, Felony, or other Crime, who shall flee from Justice and be found in another State, SHALL on demand," &c., be delivered up. And the great weight of authority, as well as the obvious import of the language used, is that the constitution established an absolute right to the surrender, when the case was one coming within the terms of the constitution, that is, the case of a person charged with crime, who had fled from justice, and whose surrender was demanded by the proper authority. It is true, that the duty has been by the governors of some of the States, treated as discretionary, but the authorities are clearly against this view (Kentucky v. Dennison, 24 How. U. S. 66, 68). It has been well remarked, in reference to the case last cited, that although the court finally came to the conclusion that they had no jurisdiction to grant the manda

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mus prayed for, yet the views expressed in that decision as to the construction of this clause of the constitution possess but little less than the force of absolute authority (Matter of Voorhees, 32 N. J. L. 149). And it is now settled by a great preponderance of authority,— State as well as Federal, --that the word crime, in this 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 were not a crime by the common law or the laws of other States, and even though for the first time made a crime by a law passed subsequently to the adoption of the constitution and the passage of this act of Congress. Therefore, it appears that the right to demand the surrender of a fugitive from justice, as between these States, is no longer an imperfect right, to be conceded as matter of favor or comity, or refused if the State in which he has taken refuge may so determine upon consideration of its interest or policy, or its view of international law, nor a right resting in the obligation of a contract alone, as by treaty, but a constitutional and legal right, having fixed and well-ascertained conditions, and the same instrument and frame of government, which for national purposes welded the several States into a single country, brought this matter and this obligation within the purview and jurisdiction of the Federal authority. As the constitution is more than a compact between the States, so this right, and this obligation, as secured by the constitution, became something more than an obligation and a right resting in contract or treaty.

But the constitution did not provide means for carrying into effect this provision. And soon a case arose between Virginia and Pennsylvania, in which the return of a fugitive was denied, because Congress had passed no law pointing out the means for enforcing this provision-determining how, and on what