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7 Vt. 118; Dows' Case, 18 Pa. St. 37; Ker v. Illinois, 119 U. S. 436, Sup. Ct. Rep. 225. It is, however, more than doubtful whether in those countries where the common law prevails, and where personal liberty is the chief concern of the state, and is protected by constitutional safeguards, there exists any power, in the absence of treaty,-which is a law of the land, (U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234,) -to make surrender of a fugitive. It is true that such surrender was made by this government in 1864, in the case of Arguelles. In that case no opportunity was permitted by writ of habeas corpus to test the legality of the seizure. The action of the executive was severely criticised, and was sought to be justified upon the ground that "a nation is never bound to furnish asylum to dangerous criminals who are offenders against the human race." Possibly the nature of the offense-selling human beings into slavery-may have induced the action of the executive, and may extenuate an act which is opposed to the holding of the state department from an early date to the present time, and to the declared opinions of such eminent statesmen as Albert Gallatin, John Quincy Adams, Mr. Livingston, Mr. Forsyth, Mr. Calhoun, Mr. Cass, Mr. Marcy, Mr. Hamilton Fish, Mr. Evarts, Mr. Frelinghuysen, and Mr. Bayard, and would seem a violation of the fundamental law that no man "shall be deprived of life, liberty, or property without due process of law." In most civilized countries the imperfect moral obligation to surrender fugitives from justice has, by force of treaties, ripened into absolute duty. It cannot now be doubted that in those countries dominated by the common law extradition can only be had as provided by treaty, and for those offenses only denominated in the treaty.

The question of interstate rendition rests, however, upon different ground. The states are not, in respect to the surrender of fugitives, independent sovereignties. They cannot contract with each other for such surrender. By the compact of union they have yielded their sovereignty in that regard to the federal government. Such rendition of fugitives can only be rightfully effected under the provisions of the federal constitution, and the laws passed in pursuance thereof. That constitution provides (subsection 2, § 2, art. 4) that "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." Whether, since the constitution, a fugitive forcibly abducted from one state and delivered into the jurisdiction of another can be held for trial in the latter, may perhaps be an open question. In Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. Rep. 1204, such a case was presented to the supreme court. It was held by the court, Justice BRADLEY and Justice HARLAN dissenting, that no right secured under the constitution of the United States had been violated by such abduction, and the federal court could not interfere, "whatever effect may be given by the state court to the illegal mode in which the defendant was brought from another state." Notwithstanding some expressions in the opinion of the court which would

seem to assert the lawful jurisdiction of the state courts under such circumstances, the point ruled is that no federal question was involved. Upon the main question the authorities are not in accord. It is happily not necessary for us to consider that question here. This constitutional provision was adopted, as one author has expressed the thought, that "the law might everywhere and in all cases be vindicated." The duty imposed is imperative, taking away all discretion, in case of an executive demand, "and makes that a matter of duty which else had been a matter of grace." Chief Justice GIBSON, Dows' Case, 18 Pa. St. 37. See, also, In re Voorhees, 32 N. J. Law, 145. The constitutional provision not being self-executing, congress provided for its enforcement by act of 12th February, 1793, preserved as section 5278 of the present Revision. It was thereby enacted that—

"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 said 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 person 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 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. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand shall be paid by such state or territory."

i It is apparent that the act provides no means to compel the performance of the obligation enjoined, and that the duty of the executive upon whom demand is made is imperative. Whenever the executive of a state shall demand any person as a fugitive from justice of the executive of the state to which such person has fled, and shall produce a copy of the charge, certified by the executive of the state from whence the person so charged has fled, it shall be the duty of the executive of the state to which such person shall have fled to cause his arrest and surrender to the demanding state. The certificate of the executive authority of the demanding state is conclusive as to the charge of crime. The executive of the state where the fugitive is found has no right to look behind it, or to question it, or to inquire into the character of the crime charged., Com. v. Dennison, 24 How. 66. Whether the person demanded be a fugitive from justice is a question of fact to be determined in the first instance by the executive of the state upon whom demand is made, upon such evidence as he may deem satisfactory. erts v. Reilly, 116 U. S. 80, 95, 6 Sup. Ct. Rep. 291. But this investigation is purely ex parte, the demanded person having no right of opportunity to be heard. Here there was no finding by the executive in terms that Cook was a fugitive from justice. The recital in the writ is:

Rob

"The executive authority of the state of Wisconsin demands of me the apprehension and delivery of Charles E. Cook, represented to be a fugitive from justice." It is, however, ruled that the issuance of the warrant of rendition is of itself prima facie finding of the fact of flight, and sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof. Roberts v. Reilly, supra. That decision by its very terms implies that the action of the governor is only presumptively regular, and can be reviewed by the courts. Surely it cannot be claimed that such action is conclusive upon personal right, and may not be inquired of by judicial tribunals. Surely it cannot be that the right to personal liberty hangs upon so slender a thread as the arbitrary will of the authorities of the demanding and surrendering states. "No person shall be deprived of life, liberty, or property without due process of law." That is the fundamental law of the land, coming to us from Magna Charta. It is not due process of law which condemns without hearing, which convicts without trial. The phrase "due process of law," or its synonym, "law of the land," cannot have better definition than that given by Mr. Webster in the Dartmouth College Case:

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By law of the land' is most clearly intended the general law, -a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society." Dartmouth College v. Woodward, 4 Wheat. 518.

It is essential to compliance with such executive demand that the person whose surrender is demanded should be adjudged a fugitive from the justice of the demanding state. The decision of the executive is not conclusive of that fact. And so we are of opinion that the action of the executive is reviewable by federal tribunals, and that it is competent for the courts to determine whether in fact the demanded person is a fugitive from justice. In re Manchuster, 5 Cal. 237; Ex parte Joseph Smith, 3 McLean, 121; Jones v. Leonard, 50 Iowa, 106; In re Mohr, 73 Ala. 503; Hartman v. Aveline, 63 Ind. 353; Wilcox v. Nolze, 34 Ohio St. 520, 521.

But it is said that here the petitioner has been rendered to the demanding state, and is now held, not under the constitutional provision, but by virtue of state process. In other words, that the act of rendition has been consummated; that the federal process has spent its force, and is junctus officio; that the writs of the state control the custody of the petitioner, and no federal question is here involved. In respect of this question we are without the decisive guidance of the ultimate judicial authority. We are referred to but two cases in the subordinate courts, and in these cases the judges seem to have arrived at opposite conclusions. In the Case of Noyes, 17 Alb. Law J. 407, before Judge NIXON, of the district of New Jersey, it was held that a fugitive from justice, extradited from one state in the Union to another, may be detained for prosecution, notwithstanding it may appear that the arrest under the rendition proceedings was without legal authority. In Tennessee v. Jackson, 36 Fed.

Rep. 258, Judge KEY reached an opposite conclusion, and held that, as the petitioner had never been in the demanding state, he could not be a fugitive from the justice of that state, and that the jurisdictional question could be asserted after his rendition had been accomplished, and he was held under process of the demanding state. The proceedings here were instituted by the state now claiming jurisdiction of the petitioner. The custody of him has been obtained solely by virtue of that demand. He is subjected to the custody of the state of Wisconsin by the power of the United States, acting through the executive of Illinois at the instance and upon the demand of the state of Wisconsin. It is insisted for the petitioner that, if he was not in fact a fugitive from justice, the executive of Illinois was without jurisdiction to yield him to the state of Wisconsin; that the latter state cannot claim any benefit of its unauthorized act, and hold him under its process, because such custody was obtained by the wrongful act of the state, in violation of the supreme law of the land. It is said that in such case, when the original proceeding by which one is brought within the jurisdiction is unauthorized by law, the detention is improper, although sought to be justified under process valid within the jurisdiction to which the party has been unlawfully brought; that, wanting the jurisdictional fact of flight, the proceeding was coram non judice; that the question of flight, being jurisdictional, is open to inquiry as well after as before the surrender; that the petitioner is physically within the state because compelled by the supreme law unlawfully put in operation, but that he is not here for the purpose of jurisdiction by the state so unlawfully, under guise of the law, obtaining the possession of his body. Upon the other hand, it is urged that the executive had the right, in the first instance, to determine the question of flight upon such evidence as to him was persuasive of the fact; that his warrant, unassailed, is sufficient to justify the removal and surrender of one charged with crime, and is a perfect justification for the arrest and custody of the alleged offender; that the surrender of his body to the demanding state by virtue of such warrant was lawful; that upon surrender the warrant had spent its force, and thereafter the prisoner is in custody rightfully, not by virtue of the warrant, but under process of the state; and that, therefore, no federal question is involved.

We are of opinion that the contention in behalf of the petitioner cannot be sustained. The vice of this position is in the assumption that the fact of flight is jurisdictional in the sense that executive action is void if, in point of fact, the demanded person be not a fugitive from justice. The power to act upon a given state of facts, and to decide whether that state of facts exists, constitutes jurisdiction. The decision therein is conclusive until properly set aside. The constitution and the act of congress have lodged with the executive of the state upon whom proper demand is made for one alleged to be a fugitive from justice the jurisdiction to determine whether the person so charged be such fugitive, and his determination is sufficient to justify the surrender. He has by virtue of the law and of the action of the executive of the demanding state,

jurisdiction of the subject-matter. He has jurisdiction of the person of the petitioner by virtue of his presence within the state. His determination partakes of the nature of a judicial proceeding. It is true, his action is ex parte. Therefore it is that the courts will review his determination. But that fact is not availing to destroy jurisdiction. He may err, but to use the expression of Chief Justice RYAN-he had "jurisdiction to commit the error." His determination of the fact of flight, evidenced by the issuing of his warrant, suffices to justify the removal until the presumption in its favor is overthrown by contrary proof in a proper proceeding. Roberts v. Reilly, 116 U. S. 80-95, 6 Sup. Ct. Rep. 291. His warrant, unassailed by competent authority, is complete justification for the arrest and surrender of the alleged fugitive. When so delivered by virtue of such warrant, his surrender is lawful, and the demanding state obtains rightful possession of his person, and may lawfully subject him to its criminal process for the offense charged. The executive warrant has then spent its force. It is no longer operative. The alleged offender is no longer subjected to deprivation of liberty by virtue thereof, but is rightfully held under the process of the state. When that has happened, no federal question remains. If the fact of flight be jurisdictional in the sense that it must exist as essential to the validity of any action by the executive, then it must always remain open to inquiry, as well after surrender as before; as well after trial and conviction as before; as well after sentence as before; as well during impris onment upon conviction and sentence as before surrender or trial,-for the reason that upon such postulate the executive would not have jurisdiction because he so determined; and any inquiry by habeas corpusthe only means of review of his decision-would not bar another writ. In such case, also, the officer executing the warrant of the executive would not be justified by the writ, but by the jurisdictional fact of flight upon which the writ is predicated, and which, if the jurisdictional fact did not exist, would be mere waste paper. Such confusion, necessarily resulting from such holding, is not to be lightly entertained. It cannot be assumed that any such meaning of the constitutional provision or the act of congress was possible to the minds of the framers. The fact of flight may be in a sense jurisdictional to removal, as one says a criminal court has jurisdiction only of crime. But such court has jurisdiction to determine whether a certain act charged to have been committed is or is not a crime. Its decision therein, although erroneous, is not void. So here, the jurisdiction to determine the fact of flight is lodged with the executive. He has jurisdiction of the subject-matter. His warrant is valid until his determination of the fact of flight is properly reversed. When, therefore, such valid warrant has been executed, the surrender thereunder is lawful, and the party lawfully subjected to the state jurisdiction.

It was urged in argument that under such ruling there will exist opportunity for oppression; that the executive may be imposed upon by ex parte and false evidence, and the warrant be improvidently issued; and that so it may happen, as was the case in Tennessee v. Jackson, supra,