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PART II.

INTERSTATE RENDITION.

CHAPTER I.

CONSTITUTIONAL PROVISION.

1. Origin of Provision.

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§ 516. Rendition, not Extradition. The use of the term "extradition" to describe the rendition of fugitives from justice from one State of the Union to another is convenient and firmly established, but it is nevertheless inaccurate and misleading. On the theory that they were dealing with a matter of extradition in the international sense, public officers and law writers have been led to consult the principles of international law and to apply them to a subject which they do not govern. The transfer of an accused person from one part of a country to another having a common supreme government does not bring into operation the principles of international law. Long before extradition became general enough to be treated as a system, it was the practice in various countries and between states more or less closely confederated to deliver up fugitive criminals from one part or state to another for trial. It was so as between the German states and among the Swiss cantons. The same rule prevailed in Sweden and Norway. And it was held in England that a person could be arrested in that country and transferred to Scotland, or Ireland, or the colonies, for trial for an offence committed within their respective jurisdictions. In such cases the ques

1 W. B. Lawrence, 14 Alb. L. J. 88.

2 Revue de droit int. (1870), p. 179, note.

3 Clarke on Extradition, p. 24; W. B. Lawrence, 14 Alb. L. J. 88.

tion was not international, but domestic. Nothing could more clearly show the inapplicability of the principles of public law to the rendition of fugitive criminals as between the United States, than the provision of the Constitution by which such rendition is required. Subsection 2, section 2, article 4, of the Constitution reads as follows: "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." Both the scope and character of this provision show that it is not in the nature of an engagement between foreign and independent nations. The general principles of public law exclude the surrender of political fugitives; the provision in question, framed by men who had just been engaged in a revolution, expressly requires surrender for treason. Moreover, there is no restriction as to the offences for which delivery may be demanded; international conventions either enumerate and define the extraditable crimes, or else by a general clause confine the operation of the treaty to offences of a certain gravity. The reasons for the sweeping provision of the Constitution are obvious. Among the purposes for which the Constitution was declared to be ordained were "to form a more perfect union, establish justice," and "insure domestic tranquillity." Each State was guaranteed a republican form of government; due process of law was secured; and the States were forbidden to pass any bill of attainder, or ex post facto law. Thus mutual confidence and mutual aid were worked into the fabric of the Union; and the duty of rendering up fugitives from justice was imposed without limitation in order that the law might everywhere and in all cases be vindicated. The right to grant asylum, generally denominated "the right of asylum," upon which so many of the fundamental rules of extradition depend, was excluded as between the component parts of the United States. § 517. Confirmation of Ancient Practice; New England Plantations. The provision in the Constitution for the rendition of fugitives from justice involved no new principle. It merely

prescribed the method of doing what up to and even after the adoption of the Articles of Confederation of 1778 was usually accomplished through the courts, without the intervention of the executive.1 The evidences of this fact are abundant and conclusive. On May 19, 1643, articles of confederation were entered into between the plantations under the government of Massachusetts, the plantations 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. There were twelve articles in all, and in the eighth there were, among other things, the following stipulations:

"It is also agreed, that if any servant run away from his master into any of these confederate jurisdictions, that in such case, upon certificate of one magistrate in the jurisdiction out of which the said servant fled, or upon other due proof, the said servant shall be delivered either to his master or any other that pursues and brings such certificate or proof. And that upon the escape of any prisoner or fugitive for any criminal cause, whether breaking prison or getting from the officer, or otherwise escaping, upon the certificate of two magistrates of the jurisdiction out of which the escape is made, that he was a prisoner or such an offender at the time of the escape, the magistrates, 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 hand 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." 2

1 Opinion of Mr. Justice Catron, Holmes v. Jenison, 14 Pet. 540, 597; In re Fetter, 3 Zabr. 311; 3 Crim. L. Mag. 787; 5 Id. 258. Letter of Judge Bell to the governor of Pennsylvania, 2 Pa. L. J. 150. Leary's case, 10 Ben. 197, 206. 2 Winthrop's Hist. of New England, vol. ii. p. 126. In the minutes of a meeting of the council of the United Colonies on Aug. 27, 1673, there is the following entry: "The Commissioners of Connecticut made a relation of a murder lately committed by an Indian called Mowim, upon a Pequot Indian girl, in the bounds of Stonington within their jurisdiction; which murderer was apprehended and imprisoned in order to his trial; but breaking prison he fled to Ninicraft, who refuseth to deliver him up to justice amongst the English, pretending his

§ 518. Connecticut Laws. - In the Acts and Laws of Connecticut we find an act passed in October, 1720, which is as follows:

An Act to prevent such Persons abiding, and hiding in this Colony, as make their Escape from Justice; or are Convicted of certain Crimes in other Colonies.

Whereas it has sometimes happened that some Persons Convicted in the neighboring Colonies of Crimes, which by the Laws of this Colony are punishable with corporal Punishment, make their Escape from the Administration of Justice in those Colonies; or do Escape, and flee from the Prosecution of such Crimes there, and come into this Colony with design to hide from Justice; or to take up their Abode here.

And whereas such evil Practices may often happen: And if such Persons are protected or indulged therein, it may prove of bad Consequence.

Which to Prevent :

Be it enacted by the Governour, Council and Representatives, in General Court assembled, and by the Authority of the same,

own right to be the proper judge himself. Upon consideration hereof, and being requested to give our advice, the Commissioners think it most just and necessary that the authority of Connecticut do forthwith make further demand of the said murderer and bring him to his trial; and in case of neglect or refusal, to prosecute their demand to effect; and that Ninicroft [sic] be called to account and compelled to make reparation for the injury and affront hereby done to the English and their Government." Colonial Records of Connecticut, 1678-1689, pp. 488-489.

On Dec. 11, 1696, William Penn appeared before the Lords of Trade as a Proprietor of East Jersey, to make representations regarding the state of the colonies. He promised to present a scheme for their better regulation. On the 8th of February, 169, he submitted a plan, entitled "A Briefe and Plaine Scheam how the English Colonies in the North parts of America, viz.: Boston, Connecticut, Road Island, New York, New Jersey, Pensilvania, Maryland, Virginia and Carolina may be made more usefull to the crowne, and one another's peace and safety with an universall concurrance."

He proposed that there should be a common assembly, composed of deputies from each colony, whose business it should be "to hear and adjust all matters of complaint or differences between Province and Province, As 1st, where persons quit their own Province and goe to another, that they may avoid their just debts tho they be able to pay them; 2d, where offenders fly Justice, or Justice cannot well be had upon such offenders in the Provinces that entertain them; 3dly, to prevent or cure injuries in point of commerce; 4th, to consider ways and means to support the union and safety of these Provinces against the publick enemies." 100th Anniversary of the Constitution of the United States, vol. ii. pp. 450, 451.

That whatsoever Persons Convicted, as aforesaid; or that shall hereafter be Convicted, as aforesaid; or that are, or shall be pursued for such Crimes, if they make their Escape, as aforesaid, and come into this Colony, and continue here for the space of Two Months, without first having obtained Leave therefor of the General Assembly, and shall not depart out of this Colony within One Month after they shall be Warned so to do, by any Assistant or Justice of the Peace; or by the Select-men of that Town where they shall reside at that Time, and be thereof Convict before the County Court of that County wherein the Town or Place of Warning shall lye, shall suffer a fine of Five Pounds to the Treasurer of the Colony: To be Recovered as other Fines. In which Cases no Appeal shall be granted.

And if the person so Convicted, or suffering such Fine, shall not within One Month next after such Suffering, and Discharge thereon, depart out of this Colony, he shall be liable to the like Fine: To be Recovered as aforesaid; and so Toties Quoties. And that all Prosecutions upon this Act shall be within Three Years next after such Persons escaping, as aforesaid, come into this Colony, and not after.

And be it further Enacted by the Authority aforesaid, That if any such Person or Persons flying, or making Escape, as aforesaid, be pursued by Order of proper Authority, from any other Government, in order to bring him or them to Justice, he or they may be Apprehended by Order of the Authority of this Government.

And if on Examination and Enquiry into the Matter, it shall appear such Person or Persons have been Convicted, as aforesaid, and are escaping, or are flying from Prosecution, as aforesaid, he or they may be remanded back, and delivered to the Authority, or Officers from whom such Escape is made, in order that due and condign Punishment may be inflicted on such Transgressors.

This act is found in a somewhat modified form in the Acts and Laws of Connecticut, Revision of 1784, under the title of "An Act for remanding Persons who have committed crimes in other States, and to escape from Justice flee into this State;" and yet again, with further unimportant modifications, in the Revision of 1795, p. 218. There is also evidence in the colonial records of Pennsylvania of the existence of a custom of delivering up fugitive criminals as between Pennsylvania,

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