COMMONWEALTH OF KENTUCKY v. DENNISON.

(24 Howard, 66-110. 1860.)

STATEMENT OF FACTS.- This application was made to the supreme court to compel the governor of Ohio to deliver an alleged fugitive from justice from the state of Kentucky.

Opinion by TANEY, C. J.

The court is sensible of the importance of this case, and of the great interest and gravity of the questions involved in it, and which have been raised and fully argued at the bar. Some of them, however, are not now for the first time brought to the attention of this court; and the objections made to the jurisdiction, and the form and nature of the process to be issued, and upon whom it is to be served, have all been heretofore considered and decided, and cannot now be regarded as open to further dispute.

As early as 1792, in the case of Georgia v. Brailsford, the court exercised the original jurisdiction conferred by the constitution without any further legisla tion by congress to regulate it than the act of 1789. And no question was then made, nor any doubt then expressed, as to the authority of the court. The same power was again exercised without objection in the case of Oswald e. The State of Georgia, in which the court regulated the form and nature of the process against the state, and directed it to be served on the governor and attorney-general. But in the case of Chisholm v. State of Georgia, at February term, 1793, reported in 2 Dal., 419, the authority of the court in this respect was questioned, and brought to its attention in the argument of counsel; and the report shows how carefully and thoroughly the subject was considered. Each of the judges delivered a separate opinion, in which these questions, as to the jurisdiction of the court, and the mode of exercising it, are elaborately examined.

§ 3615. Where this court has original jurisdiction it can exercise it without any further act of congress.

Mr. Chief Justice Jay, Mr. Justice Cushing, Mr. Justice Wilson and Mr. Justice Blair decided in favor of the jurisdiction, and held that process served on the governor and attorney-general was sufficient. Mr. Justice Iredell differed, and thought that further legislation by congress was necessary to give the jurisdiction and regulate the manner in which it should be exercised. But the opinion of the majority of the court upon these points has always been since followed. And in the case of New Jersey v. New York, in 1831, 5 Pet., 284, Chief Justice Marshall, in delivering the opinion of the court, refers to the case of Chisholm v. State of Georgia, and to the opinions then delivered, and the judgment pronounced, in terms of high respect, and after enumerating the various cases in which that decision has been acted on, reaffirms it in the following words:

"It has been settled by our predecessors, on great deliberation, that this court may exercise its original jurisdiction in suits against a state, under the authority conferred by the constitution and existing acts of congress. The rule respecting the process, the persons on whom it is to be served, and the time of service, are fixed. The course of the court, on the failure of the state to appear after due service of process, has been also prescribed." And in the same case, page 289, he states in full the process which had been established by the court as a rule of practice in the case of Grayson v. State of Virginia, 3 Dal, 320, and ever since followed. This rule directs "that when process at

common law, or in equity, shall issue against a state, the same shall be served upon the governor or chief executive magistrate, and the attorney-general of such state."

§ 3616. A mandamus is a process to which every one is entitled where it is the appropriate remedy.

It is equally well settled that a mandamus in modern practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubtedly came into use by virtue of the prerogative power of the English crown, and was subject to regulations and rules which have long since been disused. But the right to the writ, and the power to issue it, has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable. It was so held by this court in the cases of Kendall v. United States, 12 Pet., 615; Kendall v. Stokes, 3 How., 100. So, also, as to the process in the name of the governor, in his official capacity, in behalf of the state.

$3617. A state may sue or be sued by or through its governor.

In the case of Madraso v. The Governor of Georgia, 1 Pet., 110, it was decided that in a case where the chief magistrate of a state is sued, not by his name as an individual, but by his style of office, and the claim made upon him is entirely in his official character, the state itself may be considered a party on the record. This was a case where the state was the defendant; the practice, where it is plaintiff, has been frequently adopted of suing in the name of the governor in behalf of the state, and was indeed the form originally used, and always recognized as the suit of the state.

Thus, in the first case to be found in our reports in which a suit was brought by a state, it was entitled and set forth in the bill as the suit of "The State of Georgia, by Edward Tellfair, governor of the said state, complainant, against Samuel Brailsford and others;" and the second case, which was as early as 1793, was entitled and set forth in the pleadings as the suit of "His excellency Edward Tellfair, esquire, governor and commander-in-chief in and over the state of Georgia, in behalf of the said state, complainant, against Samuel Brailsford and others, defendants."

§ 3618. In all cases in which the supreme court has original jurisdiction, it may exercise it without any further act of congress.

The cases referred to leave no question open to controversy as to the jurisdiction of the court. They show that it has been the established doctrine upon this subject ever since the act of 1789, that in all cases where original jurisdiction is given by the constitution this court has authority to exercise it without any further act of congress to regulate its process or confer jurisdiction, and that the court may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice. And that it has also been settled that where the state is a party, plaintiff or defendant, the governor represents the state, and the suit may be, in form, a suit by him as governor in behalf of the state where the state is plaintiff, and he must be summoned or notified as the officer representing the state where the state is defendant. And, further, that the writ of mandamus does not issue from or by any prerogative power, and is nothing more than the ordinary process of a court of justice to which every one is entitled where it is the appropriate process for asserting the right he claims. We may, therefore, dismiss the question of jurisdiction without further comment, as it is very clear that if the right claimed by Kentucky

can be enforced by judicial process, the proceeding by mandamus is the only mode in which the object can be accomplished.

33619. Meaning of the constitutional provision; what crimes included.

This brings us to the examination of the clause of the constitution which has given rise to this controversy. It is in the following words: "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 state having jurisdiction of the crime."

Looking to the language of the clause, it is difficult to comprehend how any doubt could have arisen as to its meaning and construction. The words, "treason, felony or other crime," in their plain and obvious import, as well as in their legal and technical sense, embrace every act forbidden and made punishable by a law of the state. The word "crime" of itself includes every offense from the highest to the lowest in the grade of offenses, and includes what are called "misdemeanors" as well as treason and felony. 4 Bl. Com., 5, 6, and note 3, Wendell's edition. But as the word crime would have included treason and felony without specially mentioning those offenses, it seems to be supposed that the natural and legal import of the word, by associating it with those offenses, must be restricted and confined to offenses already known to the common law and to the usage of nations, and regarded as offenses in every civilized community, and that they do not extend to acts made offenses by local statutes growing out of local circumstances, nor to offenses against ordinary police regulations. This is one of the grounds upon which the gov ernor of Ohio refused to deliver Lago, under the advice of the attorney-general of that state.

But this inference is founded upon an obvious mistake as to the purposes for which the words "treason and felony" were introduced. They were introduced for the purpose of guarding against any restriction of the word "crime," and to prevent this provision from being construed by the rules and usages of independent nations in compacts for delivering up fugitives from justice. According to these usages, even where they admitted the obligation to deliver the fugitive, persons who fled on account of political offenses were almost always excepted, and the nation upon which the demand is made also uniformly claims and exercises a discretion in weighing the evidence of the crime, and the character of the offense. The policy of different nations, in this respect, with the opinions of eminent writers upon public law, are collected in Wheaton on the Law of Nations, 171; Felix, 312; and Martin, Vergé's edition, 182. And the English government, from which we have borrowed our general system of law and jurisprudence, has always refused to deliver up political offenders who had sought an asylum within its domains. And as the states of this Union, although united as one nation for certain specified purposes, are yet, so far as concerns their internal government, separate sovereignties, independent of each other, it was obviously deemed necessary to show, by the terms used, that this compact was not to be regarded or construed as an ordinary treaty for extradition between nations altogether independent of each other, but was intended to embrace political offenses against the sovereignty of the state, as well as all other crimes. And as treason was also a "felony " (4 Bl. Com., 94), it was neces‐ sary to insert those words, to show, in language that could not be mistaken, that political offenders were included in it. For this was not a compact of peace

and comity between separate nations who had no claim on each other for mutual support, but a compact binding them to give aid and assistance to each other in executing their laws, and to support each other in preserving order and law within its confines, whenever such aid was needed and required; for it is manifest that the statesmen who framed the constitution were fully sensible that, from the complex character of the government, it must fail unless the states mutually supported each other and the general government; and that nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a state, by passing over a mathemathical line which divides it from another, to defy its process, and stand ready, under the protection of the state, to repeat the offense as soon as another opportunity offered.

§ 3620. Practice of the colonies on the subject of the mutual extradition of criminals.

Indeed, the necessity of this policy of mutual support, in bringing offenders to justice, without any exception as to the character and nature of the crime, seems to have been first recognized and acted on by the American colonies; for we find by Winthrop's History of Massachusetts, vol. 2, pages 121 and 126, that as early as 1643, by "articles of confederation between the plantations under the government of Massachusetts, the plantation under the government of New Plymouth, the plantations under the government of Connecticut and the government of New Haven, with the plantations in combination therewith," these plantations pledged themselves to each other, that, upon the escape of any prisoner or fugitive for any criminal cause, whether by breaking prison, or getting from the officer, or otherwise escaping, upon the certificate of two magistrates of the jurisdiction out of which the escape was made that he was a prisoner or such an offender at the time of the escape, "the magistrate, or some of them, of the jurisdiction where, for the present, the said prisoner or fugitive abideth, shall forthwith grant such a warrant as the case will bear, for the apprehending of any such person, and the delivery of him into the hands of the officer or other person who pursueth him; and if there be help required for the safe returning of any such offender, then it shall be granted unto him that craves the same, he paying the charges thereof." It will be seen that this agreement gave no discretion to the magistrate of the government where the offender was found; but he was bound to arrest and deliver upon the production of the certificate under which he was demanded.

§ 3621. The provisions for mutual surrender of criminals by the confedera

tion.

When the thirteen colonies formed a confederation for mutual support, a similar provision was introduced, most probably suggested by the advantages which the plantations had derived from their compact with one another. But, as these colonies had then, by the declaration of independence, become septrate and independent sovereignties, against which treason might be committed, their compact is carefully worded, so as to include treason and felony - that is, political offenses as well as crimes of an inferior grade. It is in the following words: "If any person, guilty of or charged with treason, felony, or other high misdemeanor, in any state, shall flee from justice, and be found in any other of the United States, he shall, upon demand of the governor or executive power of the state from which he fled, be delivered up and removed to the state having jurisdiction of his offense."

$ 3622. The provisions for demand and surrender of criminals between the states by the constitution of the United States.

And when these colonies were about to form a still closer union by the present constitution, but yet preserving their sovereignty, they had learned from experience the necessity of this provision for the internal safety of each of them, and to promote concord and harmony among their members; and it is introduced in the constitution substantially in the same words, but substituting the word "crime" for the words "high misdemeanor," and thereby showing the deliberate purpose to include every offense known to the law of the state from which the party charged had fled. The argument on behalf of the governor of Ohio, which insists upon excluding from this clause new offenses created by a statute of the state, and growing out of its local institutions, and which are not admitted to be offenses in the state where the fugitive is found, nor so regarded by the general usage of civilized nations, would render the clause useless for any practical purpose. For where can the line of division be drawn with anything like certainty? Who is to mark it? The governor of the demanding state would probably draw one line, and the governor of the other state another. And if they differed, who is to decide between them? Under such a vague and indefinite construction, the article would not be a bond of peace and union, but a constant source of controversy and irritating discussion. It would have been far better to omit it altogether, and to have left it to the comity of the states, and their own sense of their respective interests, than to have inserted it as conferring a right, and yet defining that right so loosely as to make it a never-failing subject of dispute and ill-will.

The clause in question, like the clause in the confederation, authorizes the demand to be made by the executive authority of the state where the crime was committed, but does not in so many words specify the officer of the state upon whom the demand is to be made, and whose duty it is to have the fugtive delivered and removed to the state having jurisdiction of the crime. But under the confederation, it is plain that the demand was to be made on the governor or executive authority of the state, and could be made on no other department or officer; for the confederation was only a league of separate sorereignties, in which each state, within its own limits, held and exercised all the powers of sovereignty; and the confederation had no officer, either executive, judicial or ministerial, through whom it could exercise an authority within the limits of a state. In the present constitution, however, these powers, to a limited extent, have been conferred on the general government within the territories of the several states. But the part of the clause in relation to the mode of demanding and surrendering the fugitive is (with the exception of an unimportant word or two) a literal copy of the article of the confederation, and it is plain that the mode of the demand and the official authority by and to whom it was addressed, under the confederation, must have been in the minds of the members of the convention when this article was introduced, and that, in adopting the same words, they manifestly intended to sanction the mode of proceeding practiced under the confederation—that is, of demanding the fugitive from the executive authority, and making it his duty to cause him to be delivered up.

Looking, therefore, to the words of the constitution to the obvious policy and necessity of this provision to preserve harmony between states, and order and law within their respective borders, and to its early adoption by the col