charged with crime in the State or Territory from which he has fled, is in aid of the Constitution and the act of Congress. In Ex parte Ammons,1 the supreme court of Ohio held that the statute of that State of March 23, 1875, was valid so far as it provided for the arrest of a fugitive on the warrant of the governor, and his commitment by a judge to await delivery to the agent of the demanding State.

1 34 Ohio St. 518.

CHAPTER III.

REQUISITION.

1. Requirements of Act of Congress.

§ 544. Form of Requisition. The Constitution provides that the person charged shall be delivered up "on demand of the executive authority of the State from which he fled." This is all that is said on the subject of the demand; but by the act of 1793 the demand must meet the following requirements: 1. It must be addressed to the executive of the State or Territory to which the person accused has fled; 2. Such person must be demanded "as a fugitive from justice;" 3. He must be charged with the commission of "treason, felony, or other crime" in the demanding State or Territory; 4. The charge may be made either by "the copy of an indictment found, or an affidavit made before a magistrate" of such State or Territory; 5. The indictment or affidavit must be "certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged fled." These are express statutory requirements. It does not appear to be necessary that the requisition, in order to justify the issuance of a warrant of arrest and delivery, should designate some one as agent to receive the fugitive and convey him to the State or Territory having jurisdiction of the crime. On the contrary, the act of Congress says that when the five requirements above mentioned are met, it shall be the duty of the executive authority upon whom the demand is made to cause the fugitive to be arrested and secured, and notice of the arrest to be given to the executive authority making the demand, or to the agent of such authority appointed to receive the fugitive. And if no agent appears within six months from the time of the arrest, the prisoner may be discharged. But it has nevertheless long been the practice, because it is both appropriate and

convenient, to issue with the requisition a power to an agent to receive the prisoner and transport him to the place of trial. Thus, in 1847, the Pennsylvania Law Journal1 says:

"The ordinary form of requisition, in use by the executives of the several States, comprises, first, a demand upon the governor of the State to which the fugitive is alleged to have fled, for his surrender; secondly, a power to an agent, named therein, authorizing him to keep and secure the fugitive when surrendered; thirdly, affidavits, or a bill of indictment, setting forth the offence with which the fugitive is charged; fourthly, an affidavit to the effect that the defendant has fled from the justice of one State to the other; and fifthly, a certificate of authentication by the governor issuing the requisition."

The papers absolutely requisite as accompaniments of the demand are a copy of an indictment found, or an affidavit made before a magistrate in the State or Territory from which the accused fled, charging the fugitive with having committed the crime, and the certificate of the governor authenticating such copy, of the indictment or such affidavit. It was held under the statute of Massachusetts, which requires the papers to accompany" the requisition, that they need not be attached to it.3

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§ 545. An Official Act. The demand is to be treated as the act of the governor and not of the individual who may hold the executive office, and it remains in force after the governor who issued it has been succeeded in office by another person. It has been held that the principal chief of the Cherokee nation is not the executive authority of a State or Territory as those words are used in the act of Congress.5

§ 546. Nature of Charge. — The provision that the fugitive must be charged with the offence by indictment or affidavit in the State or Territory from which he fled, means that, be

1 Vol. vi. p. 413.

2 Kingsbury's case, 106 Mass. 223; Romaine's case, 23 Cal. 585; State v. Schlemm, 4 Harr. (Del.) 579; Clark's case, 9 Wend. 212, 219; Tullis v. Fleming, 69 Ind. 15; Knowlton's case, 5 Crim. L. Mag. 250.

3 Kingsbury's case, 106 Mass. 223.

* Knowlton's case, 5 Crim. L. Mag. 250; Work v. Corrington, 34 Ohio St. 64. 5 Ex parte Morgan, 20 Fed. Rep. 298.

fore he can be surrendered, it must be made to appear that he is charged before a court or magistrate in such State or Territory, competent to entertain criminal proceedings in respect of the crime alleged. It is not necessary that the court or magistrate before whom the charge is made should have jurisdiction to try the offence. It is enough that they possess jurisdiction to institute the proceedings. Nor is it necessary that the charge or accusation against the fugitive should have been made before his flight.2 To hold this to be necessary would confine the interstate process to persons who had escaped while in custody or fled while under bail.

2. Requirements of State Laws.

§ 547. Provisions in various States and Territories. The statutes of Alabama, Arizona, California, Idaho, Nevada, New Jersey, New Mexico, and Texas contain no reference to the form in which the demand upon the governor must be made. The laws of Arkansas, Colorado, Florida, Illinois, Kansas, Mississippi, Missouri, North Carolina, and South Carolina provide substantially that the demand must be in accordance with the act of Congress. The acts of Georgia, Indiana, Kansas, Mississippi, Tennessee, and Virginia provide simply that the demand shall be in accordance with the Constitution and laws of the United States. The enactments of Connecticut, Maine, Minnesota, Oregon, and Washington only require the demand to be "according" or "conformable" to law. The Pennsylvania statute of 1878 makes it the duty of the governor to issue a warrant of arrest on requisition, "provided that the said requisition be accompanied with a certified copy of the indictment or information, from the authorities of such other State or Territory, charging such person with any crime in such State or Territory." This proviso is embodied in the New York act of 1886. The code of Iowa provides that

or

1 Ex parte Morgan, 20 Fed. Rep. 298; Kentucky v. Denison, 24 How. 66. 2 Op. of Gov. Fairfield of Maine, 24 Am. Jur. 228. It is not necessary that a warrant of arrest should have been issued in the demanding State. It is the indictment or the affidavit that constitutes the charge upon which the return of the fugitive is required. Tullis v. Fleming, 69 Ind. 15.

the demand shall be accompanied with sworn evidence that the party charged is a fugitive from justice, and with a duly attested copy of an indictment, or a duly attested copy of a complaint, made before a court or magistrate authorized to receive the same. The statutes of Michigan make substantially the same requirement, but in an amplified form.

- The

§ 548. Statutes of Massachusetts, Ohio, and Delaware. statutes of Massachusetts, Ohio, and Delaware contain peculiar provisions and make requirements in excess of those prescribed by the act of Congress. In the Public Statutes of Massachusetts it is provided that the demand must be accompanied with sworn evidence that the party is a fugitive from justice, and with a duly attested copy of an indictment or of a complaint made before a court or magistrate authorized to receive the same, such complaint to be accompanied with affidavits by persons having actual knowledge of the facts, and such other evidence as the governor may require. These provisions seem to contemplate that the governor shall examine the question of the guilt of the accused, rather than whether he is duly "charged," as required by the Constitution and the act of Congress, with a crime in the demanding State or Territory. But the statutes of Delaware and Ohio go still further, the law of the former State being based upon that of Ohio. They require, first, substantially the same papers to accompany the requisition as are prescribed by the Massachusetts statute, but, in addition to that, they also exact sworn evidence that the demand is made in good faith and not to collect a debt or pecuniary mulct, or to remove the person in order to serve him with civil process. Taken together these provisions appear to contemplate not only the examination of the question of the guilt or innocence of the accused, but also the investigation of the motives of the prosecution. Such requirements are inconsistent with and obstructive of the plain directions of the Constitution and the act of Congress, as will more fully be shown hereafter. They exhibit a more jealous and suspicious spirit than would be countenanced in proceedings between entirely separate and independent nations.