considering the case solely from the point of view of the prisoner, of what right can it be said that he is deprived by his delivery up to a third State? It is not his right to have the question of his surrender determined by the governor of any particular State. That question is, under the Constitution, to be determined in any State in which he may be "found. This does not mean that, having once been found in a certain State, he is entitled thereafter to have the question of his rendition for all prior offences determined by the governor of that State, until he shall have left its jurisdiction voluntarily. Yet this is precisely what is signified by the right of return to the jurisdiction of the surrendering state, as held to exist in extradition cases; the reason being that the fugitive, when recovered, was under the protection of the surrendering nation. This principle possesses no relevancy to the States of the United States.1

1 We quote from the New York Evening Post, of December 4, 1889, a discussion of the case of Hope by Richard C. McMurtrie, Esquire, of Philadelphia, as follows: "There are two very distinct things that have here been confused, or, at least, in the reasoning that reaches this conclusion, mixed up, extradition by treaty and extradition under the Constitution. Granting they are one and the same in one aspect, that is, that the Constitution stands for a treaty as to the States, there is this clear distinction: In the case of the States, all criminals must be surrendered. The law of the State surrendering or its notion as to what is criminal is quite immaterial. The offence for which the man must be surrendered may be the most praiseworthy of acts by the law of the surrendering State. The demanding State may at any time at its mere pleasure make any act it pleases criminal, and it is as much within the duty to surrender as if the charge had been reckoned the most heinous when the duty was agreed to be accepted. The state that surrenders by treaty, on the other hand, reserves the right to decide whether the case and the person are within its construction of the treaty. It defines a priori what crimes are to warrant the demand. The State under the Constitution has reserved no right or power in the matter. By implication there is reserved the right to determine the identity of the accused, but the constable who has the warrant has this power. There is also room for dispute as to what is meant by 'charged with felony, &c.,' and what evidence is demandable of the truth of that allegation. So with the constable. But here the right to refuse delivery ends.

"It is not a treaty or contract, it is the law, that binds the State, or rather the governor, for the State exercises no function of a State in the matter. It is the duty of the governor imposed by law; he has no choice or discretion in the matter (24 Howard, 109). The principle that led Governor Hill to his conclusion was that the State which had surrendered a citizen on the demand of a foreign power had the right to dictate the effect and consequences of the surrender. But

§ 647. Case of Sennott. -The question of surrender to a third State was before the courts in Illinois in 1879, in the case of the People, ex rel. Suydam, v. Sennott. The decision in United States v. Rauscher had not then been pronounced, but the grounds upon which Sennott's case was determined were quite independent of what might be held to be the law in a case arising under an international convention. The facts in the case of Sennott are that, having committed a crime in Pennsylvania, he went first to West Virginia, where he remained a while, and then to Chicago, in the State of Illinois, where he resided for about two years. He then left Chicago and went to New York, from which State he was brought back to Illinois on a charge of crime there committed. After his return he was discharged on habeas corpus; but he was immediately rearrested on a warrant issued upon a requisition of the governor of Pennsylvania demanding his rendition for the crime committed in that State. application was at once made to Judge McAllister, of the circuit court of Cook county, Illinois, for the discharge of the prisoner on habeas corpus. The ground chiefly relied upon was that he had not fled to Illinois, but was brought there against his will. It was contended that under the act of 1793 he must have fled to Illinois. The court said that the Constitution of the United States provided for the surrender of persons "who shall flee from justice and be found in another State." The act of Congress says: "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 such person has fled.'

in the present case the demand was made under a claim that California could not resist nor dictate terms. Nor did Governor Hill require Hope to return to California and take his chance there; he treated him as a witness or suitor, and the criminal process as a civil writ, as to which there is the privilege of eundo, morando et redeundo, forgetting that the man had no rights of that kind, for it is not the right of the criminal, but of the State which surrenders, to consider these things. "We work out the right of the surrendering foreign state through the medium of the criminal, it being assumed that the surrender was conditional; the real object of the principle being political liberty, and the preservation of the right of asylum."

1 11 Chicago Leg. News, 404; 20 Alb. L. J. 230.

The court said a point was made of the difference in language, but if the Constitution and the act differed the former must prevail.

"It seems to me," said Judge McAllister, "to be a fair interpretation of the constitutional provisions, that the other requisites being supplied, it is only necessary, to justify the arrest under the executive warrant, that the person should be a fugitive from the justice of the demanding State, and be found in the State where the warrant issued. I, therefore, do not concur in the position that the relator cannot be amenable to such warrant, unless he had fled to this State, and remained here as such fugitive at the time of his arrest. Having committed the crime in Pennsylvania, and then departed the State, he is to be regarded as a 'fugitive from justice,' so long as he keeps out of the State, and subject to the extradition laws, unless that State has lost its right to demand him by her own laches. The executive warrant in these cases is a criminal process, and when he was discharged from imprisonment under the proceedings by which he was brought here, by what rule of law, if he was here as a fugitive from justice, he could be exempt from such process, I confess myself unable to understand. The governor was under no duty to return him to New York, or guarantee a safe return. He might be privileged from arrest on civil process by a well-settled rule of law, but not from a criminal one. No such privilege is known to the law. The only requisites of a case, under the Constitution and laws, are: 1. The person demanded must be charged in some State with treason, felony, or other crime. 2. He must be a fugitive from justice, because he is expressly described as one who shall flee from justice, and who is to be delivered upon demand of the executive authority of the State from which he fled. 3. He must be found in another State than the one in which the crime is charged to have been committed."

The court accordingly dismissed the writ, and remanded the prisoner into custody. He then obtained another writ of habeas corpus from Judge Drummond, of the United States. circuit court for the Northern District of Illinois. Judge Drummond took the same view of the matter as Judge McAllister, and Sennott was taken back to Pennsylvania. 1

1 12 Chicago Leg. News, 115.

§ 648. Decision in Indiana. The same question was considered by the supreme court of Indiana in 1886, in the following case: A person committed a crime in Michigan and fled to Indiana, where he was arrested and held in custody from December 12, 1884, till September 12, 1885, on an indictment for a crime committed in the latter State. On December 29, 1884, the governor of Indiana, upon the requisition of the governor of Michigan, issued a warrant for the prisoner's arrest and rendition. This warrant was not then executed owing to the fugitive's being held for trial in Indiana for a crime there committed. On September 12, 1885, he escaped from jail and fled to Ohio, from which State he was brought back to Indiana by regular rendition proceedings. He was then held in custody until April, 1886, when a nolle prosequi was entered. He was then arrested on the warrant of rendition, and claimed that, having been brought into Indiana from Ohio by "extradition" proceedings, he could not be delivered up to the State of Michigan without an opportunity to return to Ohio. The court held otherwise. In so doing it laid much stress on the fact that the fugitive originally came voluntarily into Indiana, and should not by reason of his flight from the State be placed in a better position than if he had not fled. This, the court said, distinguished it from most of the other cases. The force of this reasoning may be doubted. If it be held that a fugitive cannot be permitted to derive any advantage from his flight, the rule that he cannot be tried for an offence other than that for which he was surrendered must be rejected. This rule applies only to offences committed previously to extradition, and, practically, previously to flight. It is not doubted that a fugitive may be tried for an offence committed subsequently to his extradition. The fact that he is within the jurisdiction as an extradited person does not exempt him from obedience to the laws. But the distinction noted by the court may be thought to be open to another objection. It assumes that in order to be a fugitive from justice, the criminal must have come voluntarily into the State from which his surrender is

1 Hackney v. Welsh, 107 Ind. 253.

demanded, or have sought asylum there. For, it is to be remembered that when he was brought into Indiana on rendition process it was from Ohio, and he could not therefore allege on that ground that he did not flee from Michigan. As a rule, proof of seeking asylum is not necessary under treaties; and it certainly is not so in rendition under the Constitution, which only requires that he shall be "found." He may be inveigled or deceived into coming into the jurisdiction, or may be there as the result of casualty. It has been held that even the employment of legal processes or of illegal violence invests him with no personal privilege which he can set up as against the demands of justice, unless, where legal processes are employed, the law confers upon him such immunity. Such immunity the court did not hold to exist in interstate rendition. On the contrary it referred with disapproval to the case cited from Binns' Justice to the effect that a person delivered up by one State to another cannot be given up to a third State without having had an opportunity to return to that which surrendered him. The court observed that that case was decided by the court of quarter sessions of Philadelphia, and was therefore of little authority, and cited against it the opinion of Chief Justice Gibson in Dows' case. The decision of the supreme court of Indiana may, therefore, be held to have involved the rejection of the theory that, where one of the United States obtains possession of a criminal by rendition proceedings, it holds him for the sole purpose of trying him on the charge upon which he was given up.

3. Civil Suits.

§ 649. Where Rendition is not abused. The decision of the question whether a person brought within the jurisdiction of the State by rendition proceedings can be held to answer in a civil action has often depended upon the question whether the circumstances indicated that such proceedings were being employed for the purpose of subjecting the prisoner to civil processes. A leading case on this subject is that of Wil