in ordinary commitments under the law of the forum of jurisdiction with reference to trial before some court in the same forum;' and that such commitments may be made by officers not holding the judicial power of the United States referred to in the Constitution (Art. 3, sec. 1), seems indisputable.

It is, perhaps, on the truth of this parallel that the question depends, whether the act of delivering up a person claimed as a criminal under treaty or under customary international law does or does not involve an exercise of what is properly called judicial power.

In the ordinary arrest of a criminal there is no finality with reference to the forum in which it is made and the law upon which his continued enjoyment of personal liberty ultimately depends. In the case of extradition for the purpose of trial in a foreign jurisdiction, the liberty of the accused is finally determined upon, so far as regards the forum and the protection which its laws had extended to him, as fully as by a judicial sentence of banishment or outlawry. The surrender or extradition is a single and completed judicial act in reference to the jurisdiction in which it is made and to the liberty of the supposed criminal under its laws. It has all the elements of a sentence or judgment under punitive law. It is not ancillary, by any juridical connection, to the prospective judgment in the foreign jurisdiction, but is simply its historical ante

cedent."

$859. The distinction above stated, between the act of judgment in ordinary commitments and that in cases of international extradition, seems never to have been fairly considered. Its force in reference to the questions here presented may perhaps be avoided by an argument like the following:

It is a fundamental principle of public and private law in all civilized countries (universal jurisprudence) that each na

1Catron, J., in re Kaine, 14 How. 110:-" According to the terms of the stat ute, no doubt is entertained by me that the judicial magistrates of the United States, designated by the Act, are required to issue warrants and cause arrests to be made at the instance of the foreign Government, on proof of criminality, as in ordinary cases when crimes are committed within our own jurisdiction and punishable by the laws of the United States." Also, Woodbury, J., in British Prisoners, 1 Woodbury and Minot, 73; Kentucky v. Dennison, ante, p. 431.

tion recognizes every other as a jural society, one which regards justice as the end of government and of law, and that each will regard itself as one in a great community of states existing for the maintenance of justice. Hence, each recognizes as just the rights and obligations which exist in relations created under the private law of other nations; and in this is the foundation of that basal rule of private international law which is generally called comity.'

On the same great principle, it may be said, each nation will recognize the penal procedure of other nations to be calculated to promote the ends of justice; to this degree--that, if it agrees to deliver persons charged with crimes against a foreign law, it will trust in the justice of penal administration in the foreign country, and will not interpose in behalf of the accused those guarantees against the abuse of public power which it maintains against that abuse under its own authority; that, to the extent of the treaty, the nation making extradition will regard the two countries as parts of one great community under one punitory law, so that, in the jurisprudence of the country by which it is allowed, the extradition is like the commitment within one district, as a county, for trial in another district, of a person charged with crime under the law of a single forum of jurisdiction in which the two districts are included."

860. But from this collateral inquiry it is necessary to return to the actual question-of the nature of the power exercised by the Governors of States under the constitutional provision.

If the argument in the last section be sufficient to answer the objection in the case of extradition to a foreign government, it will apply a fortiori between the several States.

If the principle on which it rests is not to be recognized as determining the application of a treaty between distinct nations, yet, such is the similarity of penal administration in the

'Ante, §§ 33, 77, 78.

Some such principle must be assumed to maintain the legality of extradition under a customary international law (as Kent, in 1 Comm. 37), and, in governments founded on written constitutions, to authorize an international compact of extradition, when the constitution has not defined the treaty-making power.

States, that a like principle might be assumed to have legal force between them in applying the constitutional provision,-especially if the fourth construction is to be adopted, by which it acts directly on the alleged criminal, and if it may be regarded as intended to continue, in substance, the quasi-international law of the colonial period.' May it not be asserted that, by the provision, with or without the law of Congress, the two States, in respect to the commitment in the one and the prospective trial in another, are made one jurisdiction-the criminal laws of the two being, for the instance, connected by the national law-so that between the arrest in one and the trial in the other there is the same continuous operation of law which is manifested in the two proceedings when they take place under the law of one and the same State?

§ 861. In the opening of this chapter a second and a third inquiry were proposed on points which might be considered under the law of Congress, the second point or subject being

2. The remedial process by which the demand is to be presented, the proofs on which its validity is to be decided, and the method in which the delivery to the demandant State or Executive is to be carried into effect, and custody of the accused maintained, to the end of his being "removed to the State having jurisdiction of the crime."

The only question under this head which will be here examined' is, whether the law of Congress is in any respect in violation of any guarantee in the Constitution operating as a bill of rights.

§862. Whether the Act of 1793, secs. 1, 2, and the cases in which alleged fugitives from justice have, either with judicial approval or without any appeal to the courts, been delivered

'In the English cases, Rex v. Warner, Lundy's case, Rex v. Kimberly, Mure v. Kay (see ante, p. 396, note), the judges seem only to have considered the question whether, on the assumption that the prisoners had committed the felonies charged in the colony, it was lawful to send them thither for trial. It seems to have been left with the Council or the Secretary of State, and the inferior magis. trates acting under their authority, to determine on the sufficiency of the preliminary proof and to carry out the extradition by giving proper warrants.

Other points under this head are considered very fully in A Treatise on the Right of Personal Liberty and the Writ of Habeas Corpus, and the Practice connected with it, with a View of the Law of Extradition of Fugitives, by Rollin C. Hurd, published 1858, B. III. ch. 1, 2, where the leading decisions on the practice in these cases are given.

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up by the Governors of States, in the manner and under the circumstances contemplated in that Act, are authorities in this inquiry, depends upon the question, whether the Governor of a State, in making such delivery, acts in virtue of authority derived from the national Government, or authority derived from the several State of which he is the executive officer. There seems no sufficient authority for affirming that the power is derived from the national source.'

If, under any statute, the delivery of a fugitive from justice should be made by authority conferred by Congress, it would seem necessary to determine the effect of the clause in the second section of the third Article, directing that "the trial of all crimes, except in cases of impeachment, shall be by jury;" of clauses in the fifth Article of the amendments, "that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except," &c., "nor be deprived of life, liberty, or property, without due process of law;" and of the sixth Article, which prescribes the mode of trial in criminal cases.

Clauses similar to these are probably to be found in all the State Constitutions. The instances in which Governors of States have made the delivery contemplated by the statute, either without appeal or with judicial sanction, may be taken as authority that these clauses in the Constitution of the United States are not infringed by a like exercise of authority conferred by Congress."

Admitting that "due process of law" in bills of rights comprehends trial by jury,' yet this exposition is founded on the history of common-law jurisprudence in England and America, as affording the interpretation of terms of constitutional and statutory declarations. The same historical criterion must be taken to limit the meaning of the terms " deprived of life, liberty, or property," and the whole clause, in the ad

1 See examination of the question, ante, §§ 845–850.

2 In no reported case has the guarantee of trial by jury been urged against the validity of the action of the Executive. In 12 Wend., 324, '5, Nelson, J., avoiding the force of the corresponding objection against the Fugitive-slave law, said— The same argument also might be used, with a greater show of reason, in favor of the power of the state to regulate the surrender of fugitives from justice.”

"

See post in Ch. XXX.

ministration of punitive justice, may fairly be taken to apply only to judicial action which is conclusive in disposing of the life, liberty, or property of the person whose right to their retention is in question, and not to the preliminary means of bringing such person within such action on the part of some tribunal. In these cases of extradition the act of judgment which takes place is indeed conclusive in and for the State juris diction in which it takes place, and, therefore, as has just been argued, may involve an exercise of judicial power. Still, the anterior international or quasi-international practice of the States and colonies may be referred to to determine whether, under this guarantee, a jury is to be held part of that due process of law through which judicial power should be exercised in cases of extradition of persons accused of crime. Referring to such practice, as shown by the English cases herein before cited, it might be well argued that the decision should be on a summary and informal inquiry.

Or, the solution of this difficulty may be found in that blending of two jurisdictions, in cases of extradition, which has already been suggested.'

The first provision in the fifth amendment may, however, be reasonably thought to require that a delivery, under authority conferred by Congress, should be awarded only on the presentment or indictment of a grand jury of the State wherein the crime is alleged to have been committed."

863. The third and remaining inquiry regards

3. The penalties by which rights and obligations created by this provision, or by ancillary legislation of Congress, may be secured and enforced.

A penalty of fine and imprisonment for rescuing a fugitive

1 Ante, §§ 859, 860.

To the

This question may be distinguished from that of the effect of the word charged, in the provision, which was noticed, ante, § 709. It may be urged that with this requirement the offender will escape in the majority of cases. argument ab inconvenienti, which is constantly coming up under these Acts of Congress, it is sufficient to answer, that it proves altogether too much to be admitted in determining power of Congress. The difficulty would be avoided by recog nizing the true limits of that power, and thereby giving room for the concurrent action of the States, in many of which laws have been passed providing for the preliminary arrest of supposed fugitive criminals, and for notice to the Executive of the State from which they escaped. But, if the doctrine of Prigg's case be consistently applied, such laws are void. See ante, p. 129, n. 1.