power in question," he declared, "from its nature, cannot be a concurrent one, to be exercised both by the States and the General Government. It must belong, exclusively, to the one or the other." With Taney agreed Story, McLean, and Wayne. Thompson, Barber and Catron, however, in their opinions, took the view, that the action of the governor of Vermont was not subject to examination upon the part of the federal court, because there then existed no treaty between the United States and the country to which the prisoner was to be extradited, which the governor's action could be said to violate. Baldwin in a separate opinion. sustained the power of the State upon the ground that it was a legitimate exercise of its police power to obtain riddance of an undesirable inhabitant.

It would seem that the law upon this point remained in this unsettled state until 1886 when, in the case of United States v. Rauscher the Supreme Court declared, without dissent, that "there can be little doubt of the soundness of the opinion of Chief Justice Taney, that the power exercised by the governor of Vermont is a part of the foreign intercourse of this country which has undoubtedly been conferred upon the Federal Government; and that it is clearly included in the treaty-making power and the corresponding power of appointing and receiving ambassadors and other public ministers. There is no necessity for the States to enter upon the relations with foreign nations which are necessarily implied in the extradition of fugitives from justice found within the limits of the State, as there is none why they should in their own name make demand upon foreign nations for the surrender of such fugitives. At this time of day, and after the repeated examinations which have been made by this court into the powers of the Federal Government to deal with all such international questions exclusively, it can hardly be admitted that, even in the absence of treaties or acts of Congress on the subject, the extradition of a fugitive from justice can become the subject of negotiations between a State of this Union and a foreign government."

4 119 U. S. 407; 7 Sup. Ct. Rep. 234; 30 L. ed. 425.

This question may probably be now considered definitely settled, but it is interesting to observe that the declaration settling it was, after all, a pure dictum, the point not being involved in the case in which it was made.

A number of decisions have held that the asylum State may satisfy the demands of its own laws before surrendering a fugitive to the State from which he has fled. "When a demand is properly made by the governor of one State upon the governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter case have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied." 5

§ 106. Auxiliary Legislation by the States.

The power of Congress by legislation to render effective the extradition clause is not exclusive, and does not, therefore, exclude the power of the State to enact measures auxiliary thereto. Indeed, such additional legislation is, in general, necessary, as, for example, laws for inquiry into the fact whether the person demanded was actually, and not constructively, within the State claiming him, when the offense charged was committed.

§ 107. Judicial Examination of Extradition Proceedings.

"Upon the executive of the State rests the responsibility of determining, in some legal mode, whether [the one claimed] is a fugitive of the demanding State. He does not fail in duty if he makes it a condition precedent to the surrender of the accused that it be shown to him, by competent proof, that the accused is, in fact, a fugitive from the justice of the demanding State."

5 Taylor v. Taintor, 16 Wall. 366; 21 L. ed. 287.

6 Ex parte McKean, 3 Hughes (U. S.), 23; Ex parte Ammons, 34 Ohio St. 518. See 3 Fed Statutes Annotated, 79, note.

7 Ex parte Reggel, 114 U. S. 642; 5 Sup. Ct. Rep. 1148; 29 L. ed. 250. Independent proof apart from its requisition papers that the accused is a fugitive from justice need not, however, be demanded by the governor of the surrendering State. Pettibone v. Nichols, 203 U. S. 192.

say:

The governor cannot be compelled by judicial process, state or federal, to take action, but where he has acted, his action may be inquired into by the courts. Thus in Roberts v. Reillys the court "The Act of Congress (§ 5278, R. S.) makes it the duty of the executive authority of the State to which such person has fled, to cause the arrest of the alleged fugitive from justice, whenever the executive authority of any State demands such person as a fugitive from justice, and produces a copy of an indictment found or affidavit made before a magistrate of any State, charging the person demanded with having committed the crime therein, certified as authentic by the governor or chief Magistrate of the State from whence the person so charged has fled. It must appear, therefore, to the governor of the State to whom such a demand is presented, before he can lawfully comply with it; first, that the person demanded is substantially charged with a crime against the laws of a State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand; and second, that the person demanded is a fugitive from the justice of the State the executive authority of which makes the demand. The first of these prerequisites is a question of law and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus. The second is a question of fact, which the governor of the State upon whom the demand is made must decide, upon such evidence as he may deem satisfactory. How far his decision may be viewed judicially in proceedings in habeas corpus, or whether it is not conclusive, are questions not settled by harmonious judicial decisions, nor by any authoritative judgment of this court. It is conceded that the determination of the fact by the executive of the State in issuing his warrant of arrest, upon a demand made on that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof." "

116 U. S. 80; 6 Sup. Ct. Rep. 291; 29 L. ed. 544.

See also Hyatt v. New York, 188 U. S. 691; 23 Sup. Ct. Rep 456; 47 L. ed. 657.

§ 108. Abduction and Forcible Return of Fugitives from Justice. It has been decided1o that where a fugitive has been forcibly abducted, without being extradited, from a State to which he had fled to the State from which he had fled, neither the Federal Government, nor the State whose peace has thus been violated, nor the abducted one, has legal redress, unless, indeed, the governor of the State to which he has been taken is willing to return him, and to extradite the persons participating in the abduction. The case of Mahon grew out of the following facts. Mahon, charged with murder in the State of Kentucky, fled to West Virginia. During a correspondence between the governors of the two States regarding extradition, he was forcibly abducted from the latter State and taken to the former State, and there confined in jail pending his trial for murder. Thereupon the governor of West Virginia, on behalf of that State, presented in a District Court of the United States a petition stating these facts, and adding that he had made a requisition upon the governor of Kentucky that Mahon be released and returned to West Virginia, but that such requisition had been refused. Therefore, a writ of habeas corpus was prayed directed to the keeper of the jail where Mahon was confined. A similar petition was filed by Mahon himself. Upon return of the writ the motion for discharge was denied by the court; appeal was taken to the Circuit Court, where the order of the lower court was affirmed; and from this order an appeal was taken to the Supreme Court. In its opinion, affirming the action of the lower tribunals, the Supreme Court say: "If the States of the Union were possessed of an absolute sovereignty, instead of a limited one, they could demand of each other reparation for an unlawful invasion of their territory and the surrender of parties abducted, and of parties committing the offense, and in case of refusal to comply with the demand, could resort to reprisals, or take any other measures that they might deem necessary as redress for the past and security for the future. But the States of the Union are not absolutely sovereign. Their sovereignty is qualified and limited by the conditions of the federal Justice, 127 U. S. 700; 8 Sup. Ct. Rep. 1204; 32 L. ed. 283.

10 Mahon v.

Constitution. They cannot declare war or authorize reprisals on other States. Their ability to prevent the forcible abduction of persons from their territory consists solely in their power to punish all violations of their criminal laws committed within it, whether by their own citizens or by the citizens of other States.

If such violators have escaped from the jurisdiction of the State invaded, their surrender can be secured upon proper demand on the executive of the State to which they have fled. The surrender of the fugitives in such cases, to the State whose laws have been violated, is the only aid provided by the laws of the United States for the punishment of depredations and violence committed in one State by intruders and lawless bands from another State. The offenses committed by such parties are against the State; and the laws of the United States merely provide the means by which their presence can be secured in case they have fled from its justice. No mode is provided by which a person unlawfully abducted from one State to another can be restored to the State from which he was taken, if held upon any process of law for offenses against the State to which he has been carried. If not thus held he can, like any other person deprived of his liberty, obtain his release on habeas corpus. Whether Congress might not provide for the compulsory restoration to the State of parties wrongfully abducted from its territory upon application of the parties, or of the State, and whether such provision would not greatly tend to the public peace along the borders of the several States, are not matters for present consideration. It is sufficient now that no means for such redress through the courts of the United States have as yet been provided.'

" 11

11 Justice Bradley was not convinced by this argument. He said: "I dissent from the judgment of the court in this case. In my opinion, the writ of habeas corpus was properly issued, and the prisoner, Mahon, should have been discharged and permitted to return to West Virginia. He was kidnapped and carried into Kentucky in plain violation of the Constitution of the United States, and is detained there in continued violation thereof. It is true, he is charged with having committed a crime in Kentucky. But the Constitution provides a peaceable remedy for procuring the surrender of persons charged with crime and fleeing into another State. This provision of the Constitution has two objects; the procuring possession of the offender, and the prevention