the manner in which the accused was brought | trict of Wisconsin, discharging a writ of habeas before it. 2. The forcible abduction of a person from another State, and conveyance within the jurisdiction of the court holding him, is no objection to his detention and trial for an offense charged. 8. This court will not interfere to relieve persons who have been arrested and taken by violence from the territory of one State to that of another, where they are held under process legally issued from the courts of the latter State. The question of the applicability of this doctrine to a particular case is as much within the province of a state court, as a question of common law or of the law of nations, as it is of the courts of the United States. 4. While the power to issue writs of habeas corpus to state courts which are proceeding in disregard of rights secured by the Constitution and laws of the United States may exist, the practice of exercising such power before the question has been raised or determined in the state court is one which ought not to be encouraged. 5. Where, with ample opportunity to do so, the accused did not apply for the writ of habeas corpus until after the jury had been sworn and his trial begun in the state court, the Federal court should not under the circumstances of this case interpose. [No. 1067.] corpus, and remanding the petitioner, Charles See same case below, 49 Fed. Rep. 833. Statement by Mr. Justice Brown: Circuit Court for the Eastern District of On March 9, 1891, the governor of Wiscon manager, or any person or agent of any bank, or of any person, company, or corporation, engaged in whole or in part in banking, brokerage, engaged in such business in whole or in part, who shall accept or receive on deposit, or for safe keeping, or to loan, from any person, [185] any money for safe keeping or for Argued Oct. 31 and Nov. 1, 1892. Decided collection, when he knows or has good reason to know, that such bank, company or corporation, or that such person is unsafe or Nov. 21, 1892. APPEAL from an order of the Circuit Court insolvent, shall be punished," etc. The affl of the United States for the Eastern Dis-davits annexed to the requisition tended to babeas corpus, where he shows that he not only did not, but could not, commit the crime, and has not been in the State where it is charged to have been committed. United States v. Fowkes, 49 Fed. Rep. 50. a criminal is tried and that on which he was extra- 542). It is essential to the granting of a requisition An agent appointed by the State in which a that an offense be charged which is indictable and fugitive stands charged with crime, to receive such punishable under the laws of the State from which fugitive, is not a United States officer such that it issues. Re Extradition Case, 9 Pa. Co. Ct. 27. the fugitive cannot be taken from his custody by The governor's warrant for an arrest as a fugi-state process. Robb v. Connolly, 111 U. S. 624 (28: tive from justice, on a requisition, can be issued only on an affidavit accompanying the requisition, which positively and directly charges the commission of a specific offense by the fugitive, and not on an affidavit that the affiant has reason to and does believe that he has committed a certain offense. Ex parte Spears, 88 Cal. 640. In the absence of the papers upon which a warrant of extradition was issued, recitals in the warrant that the demand was accompanied by the papers required by the statute of the United States to justify the surrender, which showed that the defendant had been "duly charged with crime and had fled from said State and taken refuge in the State of New York," and that the papers were duly authenticated, are sufficient to prevent the discharge of the prisoner upon habeas corpus. Re Scrafford, 59 Hun, 320. A mistake of one letter in the spelling of the name of the defendant in extradition proceedings will not warrant his discharge, where he is evidently the person intended and the sound of the names may be the same. Re Scrafford, supra. The removal of a person from a State, as a fugltive from justice, is a matter of the highest importance, and cannot be made upon less evidence of the party's guilt and fight than would authorize a warrant and arrest in an ordinary case. Re Doo Woon, 18 Fed. Rep. 899. One who goes into a State and commits a crime and returns home, is as much a fugitive from justice as though he had committed a crime in the State in which he resided and then fled to some other State. Re Roberts, 24 Fed. Rep. 132. To be a fugitive from justice in the sense of the Offenses made punishable by the laws of the Dennison, 65 U. S. 24 How. 66 (16; 717). A person brought from another State on requisi-State on which the demand is made. Kentucky v. The provisions of the constitution are not m tended for the benefit of private persons; they may not be resorted to for the purpose of bringing a debtor within the jurisdiction. Benninghoff v. Oswell, 37 How. Pr. 235; Wiswall v. Hail, 3 Paige, 314 (3: 168); Fay v. Oatley, 6 Wis. 42; Carpenter v. A slight difference between the charge on which Spooner, 2 Sandf. 717. show that the petitioner Cook and one Frank ary, 1890, and from that time onward, Cook Leake, in May, 1889, opened a banking of- knew and had good reason to know that both fice at Juneau, in the county of Dodge, he and Leake and the bank were each and all styled the "Bank of Juneau," and entered up- of them unsafe and insolvent; that on June on and engaged in a general banking busi- 20, 1890, at about four o'clock in the afterness, with a pretended capital of $10,000, and noon, the said Cook and Leake accepted and continued in such business, soliciting and received a deposit in said bank from one receiving deposits up to and including June Herman Becker, to the amount of $175 in 20, 1890, when the bank closed its doors; money; and that said deposit was received that during all this time Cook had the gen- by direction and order of the said Cook, he eral supervision of the business, and was the knowing that said bank was unsafe and inprincipal owner of the bank, and all business solvent. There was also annexed a complaint was transacted by him personally, or by his setting forth substantially the same facts, and direction by one Richardson, acting as his a warrant issued by a justice of the peace [186] agent; that Cook frequently visited the banks for Dodge county for the apprehension of and well knew its condition; that from Janu- Cook. Upon the production of this requisiary 6 to June 20, 1890, Cook, by the induce-tion, with the documents so attached, the ments and pretenses held out by the bank, governor of Illinois issued his warrant for received deposits from the citizens of that the arrest and delivery of Cook to the decounty to the amount of $25,000; that this fendant, as agent of the executive authority was done by the express order and direction of the State of Wisconsin. Cook was arrested of Cook, and such amount appeared upon the by the sheriff of Cook county, Illinois, and books of the bank at the time it failed, as on the same day, and while still in the cusdue to its depositors; that Cook, while re-tody of the sheriff, procured a writ of habeas ceiving these deposits, drew out of the bank all of its pretended capital stock, if any were ever put in, and also all the deposits, except the sum of $5,048 in money and securities, which was in the bank at the time it closed; that on June 23, 1890, Cook and Leake assigned their property for the benefit of their creditors; that on the 6th of Janu-ined before the magistrate issuing the war The governor of a State issuing the requisition | for the fugitive is the only proper judge of the authenticity of the affidavit. Re Manchester, 5 Cal. 237. The process of extradition is only authorized apon demand of the executive of another State, and where a criminal charge is actually pending against an alleged fugitive in the State making the demand. Ex parte White, 49 Cal. 434; People v. Brady, 56 N. Y. 182; Com. v. Deacon, 10 Serg. & R. 125. To justify the arrest and delivery of the fugitive, it is necessary that the charge of criminality shall have been made in the State demanding him, in form of an indictment, information, affidavit, or other accusation known to the laws of the State. Re Clark, 9 Wend. 219; Re Heyward, 1 Sandf. 702; People v. Brady, supra; State v. Hufford, 28 Iowa, 391. It is not necessary that a copy of the indictment should accompany the demand; it is sufficient if it is referred to in the writ. Nichols v. Cornelius, 7 Ind. 611; Robinson v. Flanders, 29 Ind. 10. It is not necessary that the affidavit upon which the requisition issued set forth the crime charged with all legal exactness; nor that the prisoner is "a fugitive from justice;" that he committed the crime, and then secretly fled, is sufficient. Re Manchester, 5 Cal. 237. corpus from the circuit court of Cook county Louis County, 2 Mo. 26; Re Greenough, 31 Vt. 279. The term "magistrate," used in U. S. Rev. Stat. The chief executive of a State cannot issue a warrant of extradition for the arrest of a fugitive from justice on the ground of public policy. His only power to extradite a person from his State must be found in the Constitution and laws of the United States. Ex parte Morgan, 20 Fed. Rep. 298. No State is bound to harbor criminals within its bosom, but may at its option surrender them to the government against whose laws they have offended. Rex v. Ball, 1 Am. Jur. 297; 1 Kent. Com. 37; Re Fetter, 23 N. J. L. 313. 315, 57 Am. Dec. 384. The provision of the Constitution of the United States rendered absolute the duty to surrender criminals by one State to another, which, before that, was entirely a matter of comity, and in the discretion of the state authorities. Prigg v. Pennsylvania, 41 U. S. 16 Pet. 539 (10: 1060); Kentucky v. Dennison, 65 U. S. 24 How. 66 (16: 717); Dos Santos' Case, 2 Brock. 493; Taylor v. Taintor, 83 U. S. 16 Wall. 366 (21: 287; Foster v. Essex Bank, 17 Mass. 514, 9 Am. Dec. 168; Saurez v. Sun Mut. Ins. Co. 2 As to whether the question of the party demanded But the executive may decline to surrender the If the governor refuses to discharge his duty, there is no power delegated to the general gov. ernment to use any coercive means to compel him. Kentucky v. Dennison, 65 U. S. 24 How. 66 (16: 717), See also an extended note on this subject to State v. Jackson (Tenn.) 1 L. R. A. 370, and a note to Ez parte McKnight (Ohio St.) 14 L. R. A. 128. Unless a fugitive from justice, such arrest and detention was without jurisdiction, and contrary to the rights guaranteed under the United States Constitution, and he should be released on habeas corpus. This is a personal right. Ex parte Reggel, 114 U. S. 651 (29: 253); United States v. Rauscher, 119 U. S. 407 (30: 425); Holmes v. Vermont, 39 U. S. 14 Pet. 540 (10: 579); People v. Curtis, 50 N. Y. 321, 10 Am. Rep. 483. Ex parte Morgan, 20 Fed. Rep. 298; Re Cannon, 47 Mich. 481. Presence in the State and flight from it are jurisdictional. rant, and held to answer the charge. During the September term of the circuit court of that county an information was filed against him, charging him with the offense set out in the original complaint. Upon his application the trial was continued to the term of said court beginning in February, 1892. He appeared and was arraigned at that term, pleaded not guilty, and the trial was begun, when and during the pendency of such trial, Cook sued out a writ of habeas corpus from the circuit court of the United States, claim- The right to be released is as available after ing that his extradition from Illinois to Wis-removal to the demanding State as before. consin was in violation of the Constitution and laws of the United States. It was established upon the hearing, to the satisfaction of the court below, that Cook for some years prior to the 20th day of June, 1890, and for some years prior to his arrest upon the warrant of the executive of Illinois, had been and still was a resident of the city of Chicago; that he made occasional visits to Wisconsin in connection with his banking business at Juneau and elsewhere; that he left Chicago on June 17, 1890, and went to Hartford, in the county of Washington, state of Wisconsin, where he spent the whole of the 18th day of June, proceeding_thence to Beaver Dam, in the county of Dodge, where he was engaged during the whole of It is not competent for the authorities of a the 19th day of June with business not con- State to procure the surrender of a person upnected with the Bank of Juneau; that early on one charge of crime and while holding him in the morning of June 20 he left Beaver on this charge procure his indictment and put 187] Dam and made a continuous journey to Chi-him upon trial upon other charges. cago, arriving there at 2 o'clock in the afternoon; and that he did not, on the occasion of that visit to Wisconsin, visit or pass through the village of Juneau, and had not been there for some three weeks prior to the closing of the bank on June 20. It was also conceded at the hearing that the particular deposit by Herman Becker, charged in the complaint upon which the requisition proceedings were had, was actually made at 4 o'clock in the afternoon of June 20, and after the petitioner's arrival in Chicago. Upon the hearing of the writ of habeas corpus, the petitioner was remanded to the custody of the defendant (Re Cook, 49 Fed. Rep. 833), and thereupon he appealed to this court. Mr. Charles H. Aldrich, for appellant: The petitioner was not a fugitive from justice. Hawley, Interstate Extradition, 119; Century Dictionary, sub. Fugitive; Webster, sub.| Fugitive; Roberts v. Reilly, 116 U. S. 97 (29: 549). Actual personal presence in the demanding State at or after commission of the crime is essential to make one a "fugitive from justice." Ex parte Smith, 3 McLean, 121; Storey's Case, 3 Cent. L. J. 633; Jones v. Leonard, 50 Iowa, 106, 32 Am. Rep. 116; Wilcox v. Nolze, 34 Ohio St. 520; Re Mohr, 73 Ala. 503, 49 Am. Rep. 63; Tennessee v. Jackson, 36 Fed. Rep. 258; Hartman v. Areline, 63 Ind. 344, 30 Am. Rep. 217; Hawley, Interstate Extradition, 36, 108; Spear, Extradition, 395, 400, 499, 500; 2 Moore, Extradition & Rendition, 937; U. S. Const. art. 4, § 2; U. S. Rev. Stat. § 5278. Ex parte Reggel, 114 U. S. 642 (29: 250); Roberts v. Reilly, 116 U. S. 80 (29: 544); Jones v. Leonard, 50 Iowa, 106, 32 Am. Rep. 116; Ex parte Smith, 3 McLean, 121; Tennessee v. Jackson, 36 Fed. Rep. 258; Hartman v. Aveline, 63 Ind. 344, 30 Am. Rep. 217: Wilcox v. Nolze, 34 Ohio St. 520; Re Mohr, 73 Ala. 503, 49 Am. Rep. 63; Spear, Extradition, 395–400; 2 Moore, Extradition & Rendition, 937; Whart. Crim. Pl. & Pr. (8th ed.) § 35; Re Baruch, 41 Fed. Rep. 472-474; Re Fitton, 45 Fed. Rep. 471. Taylor v. Taintor, 83 U. S. 16 Wall. 371 (21: 290); Ex parte Morgan, 20 Fed. Rep. 298; Ex parte Smith, 3 McLean, 126. Messrs. W. C. Williams and P. G. Lewis, for appellee: The Wisconsin statute under which said complaint was made and information files is section numbered 4541. Upon the subject of the scope and interpretation to be given to this statute, see Baker v. State, 54 Wis. 368; State v. Cadwell, 79 Iowa, 473. No case is presented that can be properly said to come within the exception to the prohibition contained in section 753 of the Revised Statutes of the United States, or which will authorize the issuance of the writ by a United States court. Ex parte Royall, 117 U. S. 241, 247, 253 (29: 868, 870, 872); Church, Habeas Corpus, $ 69, 70; Ex parte Skiles, 50 Fed. Rep. 524; Er parte Dorr, 44 U. S. 3 How. 103 (11: 514); Ex parte Ulrich, 43 Fed. Rep. 661. A man cannot set up as a defense in a criminal cause the manner by which he is brought within the jurisdiction of the court. Ker v. Illinois, 119 U. S. 436, 442, 444 (30: 421, 424); State v. Brewster, 7 Vt. 118; Doo's Case, 18 Pa. 37; Re Miles, 52 Vt. 609; Mahon v. Justice, 127 U. S. 707-712 (32: 285–287); Re Mahon, 34 Fed. Rep. 525, 528, 531. The full scope of the constitutional provision and of the words "other crime" is discussed in Kentucky v. Dennison, 65 U. S. 24 How. 66, 104-109 (16: 717, 728, 729). Again affirmed in Er parte Reggel, 114 U. S. 642, 650-653 (29: 250, 253); Brown's Case, 112 Mass. 409, 17 Am. Rep. 114; Taylor v. Taintor, 83 U. S. 16 Wall. 370 (21: 290); Re If the accusation on which requisition is Tullis v. Fleming, 69 Ind. 15; State v. O Voorlees, 32 N. J. L. 145; Re Fetter, 23 N. J. | essential features by those of Ker v. Illinois, The governor's certificate provided for in U. Re Leary, 10 Ben. 197; Re Manchester, 5 Cal. There is no limitation or restriction upon the crime for which a man may be extradited in interstate rendition; that duty is equally im-sponded to by the other." The court further perative as to all crimes; and no right of return is provided for or necessarily implied. 2 Moore, Extradition, § 643, 644; Re Noyes, 17 Alb. L. J. 407; Ham v. State, 4 Tex. App. 645; Harland v. Washington, 3 Wash. Ter. 153; Don's Case, 18 Pa. 39; State v. Stewart, 60 Wis. 587, 50 Am. Rep. 388; Ex parte Barker, 87 Ala. 4, 11 Crim. L. Mag. 623; Williams v. Weber, 1 Colo. App. 191; State v. Brewster, 7 Vt. 120; Adriance v. La Grave, 59 N. Y. 110, 17 Am. Rep. 317; United States v. Cadwell, 8 Blatchf. 133; United States v. Lawrence, 13 Blatchf. 299, 307; People v. Rowe, 4 Park. Crim. Rep. 253; Re Miles, 52 Vt. 609; Mahon V. Justice, 127 U. S. 700, 707 (32: 283, 285); Ker v. Illinois, 119 U. S. 436 (30: 421). Mr. Justice Brown delivered the opinion of the court: held that the petitioner had not acquired by his residence in Peru a right of asylum there, a right to be free from molestation for the crime committed in Illinois, or a right that he should only be removed thereto in accordance with the provisions of the treaty of extradition; and winds up the opinion by observing that "the question of how far his forcible seizure in another country, and transfer by violence, force, or fraud to this country, could be made available to resist trial in the state court, for the offense now charged upon him, is one which we do not feel called upon to decide, for in that transaction we do not see that the Constitution, or laws, or treaties of the United States guarantee him any protection. There are authorities of the highest respectability which hold that such forcible abduction is no sufficient Petitioner claims his discharge upon the reason why the party should not answer when ground that he is accused of having illegally brought within the jurisdiction of the court received a deposit in his bank at Juneau, which has the right to try him for such an [191] when in fact he had not been in Juneau offense. However this may be, the within three weeks before the deposit was decision of that question is as much within received, and that, at the time it was re- the province of the state court as a question ceived, which was about 4 o'clock in the of common law, or of the law of nations, afternoon of June 20, 1890, he was in Illi- of which that court is bound to take notice, nois, and had been in that State for more as it is of the courts of the United States." than two hours before the deposit was re- The case of Mahon v. Justice, 127 U. S. ceived. He had in fact left Beaver Dam, 700, [32: 283], arose upon an application Wisconsin, at an early hour that day, and of the governor of West Virginia to the distraveled continuously to Chicago, not stop-trict court of the United States for the disping at Juneau, and having no actual knowl-trict of Kentucky, for the release of Mahon edge of the illegal deposit charged. Upon this state of facts petitioner insists that his journey from Wisconsin to Illinois was not a "fleeing from justice" within the meaning of article 4, section 2, of the Constitution: that it is essential to the jurisdiction of the trial court that he should have been a fugitive from justice; and hence that the circuit court of Dodge county was without author[190] ity to try him for the offense charged, and he should therefore be relieved from its custody upon this writ of habeas corpus. We regard this case as controlled in all its upon a writ of habeas corpus, upon the ground that he had been, while residing in West Virginia, and in violation of her laws, without warrant or other legal process, arrested by a body of armed men from Kentucky, and, by force and against his will, carried out of the State to answer to a charge of murder in the State of Kentucky. As stated in the opinion of the court, the gov. ernor "proceeded upon the theory that it was the duty of the United States to secure the inviolability of the territory of the State from a lawless invasion of persons from other states and when parties had been forcibly An attempt is made to distinguish the taken from her territory and jurisdiction to case under consideration from the two afford the means of compelling their return." above cited, in the fact that those were cases This court held that, while the accused had of kidnapping by third parties, by means of the right while in West Virginia of insist- which the accused were brought within the ing that he should not be surrendered to the jurisdiction of the trial State, and the State, [193] governor of Kentucky, except in pursuance had not acted, as here, under legal process, of the acts of Congress, and was entitled to or been in any way a party to the proceedrelease from any arrest in that State not made ings; that they were cases of tort for which in accordance with them, yet that as he had the injured parties could sue the tort-feasors, been subsequently arrested in Kentucky while in the case under consideration the under the writs issued under the indictments action is under and by virtue of an Act of against him, the question was not as to the Congress, and hence the party can ask this validity of the arrest in West Virginia, but court to inquire whether the power thus inas to the legality of his detention in Ken- voked was properly exercised. The distinc tucky. "The only question, therefore," said |tion between cases of kidnapping by the vithe court, "presented for our determination olence of unauthorized persons without the is whether a person indicted for a felony in semblance of legal action, and those wherein one State, forcibly abducted from another the extradition is conducted under the forms State and brought to the State where he was of law, but the governor of the surrendering indicted by parties acting without warrant or State has mistaken his duty, and delivered authority of law, is entitled under the Con- up one who was not in fact a fugitive from stitution or laws of the United States to re- justice, is one which we do not deem it neclease from detention under the indictment by essary to consider at this time. We have reason of such forcible and unlawful abduc- no doubt that the governor upon whom the tion." After a full review of all the prior au-demand is made must determine for himself, thorities upon the point, the court came to in the first instance, at least, whether the the conclusion that the jurisdiction of the party charged is in fact a fugitive from jus[192] court of the State in which the indictment tice (Ex parte Reggel, 114 U. S. 642 [29: was found was not impaired by the manner 250], Roberts v. Reilly, 116 U. S. 80 [29 : in which the accused was brought before it. 5441), but whether his decision thereon be "There is, indeed," said the court, "an entire final is a question proper to be determined by concurrence of opinion as to the ground upon the courts of that State. A proceeding of which a release of the appellant in the pres- that kind was undertaken in this case when ent case is asked, namely, that his forcible Cook applied to the state circuit court of abduction from another State, and conveyance Chicago to obtain a writ of habeas corpus within the jurisdiction of the court holding to test the legality of his arrest. Upon the him, is no objection to his detention and trial hearing of this writ the court decided the for the offense charged. They all proceed arrest to be legal, and remanded Cook to the upon the obvious ground that the offender custody of the sheriff, by whom he was deagainst the law of the State is not relieved livered to the defendant as executive agent from liability because of personal injuries of the State of Wisconsin. Cook acquiesced received from private parties, or because of in this disposition of the case, and made no indignities committed against another State." attempt to obtain a review of the judgment There was a vacancy in the office of Chief in a superior court. Long after his arrival Justice at the time, and two members of the in Wisconsin, however, and after the trial court (Mr. Justice Bradley and Mr. Justice of his case had begun, he made this appliHarlan) dissented upon the ground that the cation to the circuit court of the United States Constitution had provided a peaceful remedy for that district upon the ground he had for the surrender of persons charged with originally urged, namely, that he was not a crime; that this clearly implied that there fugitive from justice within the meaning of should be no resort to force for this purpose; the Constitution and laws of the United that the cases upon which the court relied States. That court decided against him, had arisen where a criminal had been seized holding that he had been properly surrend in one country and forcibly taken to another ered. for trial, in the absence of any international It is proper to observe in this connection treaty of extradition; and that as the appli- that, assuming the question of flight to be cation in that case was made by the governor jurisdictional, if that question be raised beof the State whose territory had been law-fore the executive or the courts of the surlessly invaded, he was entitled to a redelivery of the person charged. rendering State, it is presented in a somewhat different aspect after the accused has These cases my be considered as establish- been delivered over to the agent of the deing two propositions: 1. That this court manding State, and has actually entered the will not interfere to relieve persons who have territory of that State, and is held under the [194] been arrested and taken by violence from the process of its courts. The authorities above territory of one State to that of another, cited, if applicable to cases of interstate exwhere they are held under process legally is- tradition, where the forms of law have been sued from the courts of the latter State. 2. observed, doubtless tend to support the theThat the question of the applicability of this ory that the executive warrant has spent its doctrine to a particular case is as much with-force when the accused has been delivered to in the province of a state court, as a question the demanding State; that it is too late for of common law or of the law of nations, as him to object even to jurisdictional defects it is of the courts of the United States. in his surrender, and that he is rightfully |