requisition of the governor of Illinois, in which the governor of the latter State certified that "the annexed papers, duly authenticated in accordance with the laws of Illinois, show that by affidavit in the county of Montgomery in said State, C. F. stands charged with larceny," &c. No affidavit or copy of an affidavit purporting to have been made in Montgomery county was attached to the requisition. There was a warrant issued by a justice of the peace of that county, in which it was recited that a complaint on oath had been made before him, charging the prisoner as recited in the requisition. There was also a paper in the form of an affidavit, purporting to have been made in the county of Sangamon, charging the offence as having been committed in the county of Montgomery, and that the person in question had fled to Indiana. The relator applied for a writ of habeas corpus to the criminal circuit court of Marion county, Indiana, which refused to discharge him. From this decision an appeal was taken to the supreme court of Indiana, which reversed the judgment of the court below on the ground that no copy of the affidavit in Montgomery county was produced to the executive of Indiana. "It was," said the supreme court, " to answer to that prosecution that the rendition was required by the governor of Illinois, and without an authentic copy of that document any warrant issued here was unauthorized." The cause was remanded to the circuit court with directions to give leave to amend the return and proceed according to the opinion of the supreme court.1

§ 560. Certificate is of Authenticity. The governor of the demanding State is not required to certify that the indictment or other papers accompanying the requisition are genuine, but only that they are duly authenticated.2 Where objec

tion was made that an affidavit was not certified to be

1 Ex parte Pfitzer, 28 Ind. 450. Two of the members of the supreme court had serious doubts whether the paper from Sangamon county purported upon its face to have been made before a magistrate, as required by the act of Congress. The Chief Justice said he did not share those doubts. But, in view of the turn the case took, the question became iminaterial.

2 Hackney v. Welsh, 107 Ind. 253.

genuine, or an original, Murray, Chief Justice of California, said: "The requisition certifies that the affidavit is duly authenticated according to the laws of said State, by which I understand the governor of Ohio to certify that the paper has received the forms which prove its genuineness." In a case before the supreme court of Ohio it was contended that the indictment accompanying the requisition of the governor of Missouri was not by him duly certified as authentic. The court held that all the act of Congress required in this regard was, "that the language employed by the demanding governor in the requisition, understood in its ordinary meaning, shows that the copy of the indictment upon which the requisition is made is authentic." The indictment in the case in question purported to have been found by a grand jury in the criminal court of Jackson county, Missouri, and to be authenticated by the attestation of the clerk of that court under its seal. The requisition said: "Whereas, it appears by the annexed papers, duly authenticated according to law, that Stephen Sheldon stands charged," &c. "This language," said the court, "fairly interpreted, is a compliance with the act of Congress which requires the copy to be certified as authentic. It negatives the idea that the copy annexed is spurious or fictitious, and shows that it is genuine." The court in substance held that where the language employed by the demanding governor in the requisition shows the copy of an indictment annexed thereto to be authentic, it is sufficient, whatever be the form of words employed.2

§ 561. Authority of Magistrate implied from Certificate. It will be implied from the certification of the demanding executive that the officer who took the affidavit is a magistrate. In Kingsbury's case, before the supreme court of Massachusetts, the requisition of the governor of Maine stated that Drusilla P. Kingsbury, "charged with the crime of larceny (as will more fully appear by the papers hereunto

1 Matter of Manchester, 5 Cal. 237. 2 Ex parte Sheldon, 34 Ohio St. 319. 8 State v. Richardson, 34 Minn. 115.

4 106 Mass. 223.

annexed, which I certify to be authentic), is a fugitive from the justice of this State," &c. Among the papers annexed was a complaint on oath before a trial justice for the county of Penobscot, Maine, charging Mrs. Kingsbury with larceny, in the usual form, sworn to October 27, 1870. It was objected that there was no formal allegation that the justice before whom the complaint was sworn was a magistrate. The court said, "The certificate of the governor sufficiently authenticates these papers as being sworn to before a magistrate."

CHAPTER IV.

FUGITIVES FROM JUSTICE.

1. What constitutes a Fugitive.

§ 562. Person demanded as a Fugitive from Justice. The Constitution provides for the delivery up of persons charged in any State with treason, felony, or other crime, "who shall flee from justice, and be found in another State." The act of Congress provides for the delivery of any such person, when he is demanded by the governor of any State or Territory “as a fugitive from justice," of the executive authority of the State or Territory" to which such person shall have fled." Thus both by the Constitution and the act of Congress the person to be delivered up is described as having fled from justice. It is generally and loosely said that whether the person charged is a fugitive from justice is a question of fact, to be determined like other facts upon proof. The fact that a person leaves a State while out on bail, does not prevent his being brought back as a fugitive from justice.1

§ 563. Georgia-Maine Controversy. What constitutes a person a fugitive from justice in the sense of the Constitution and the act of Congress has been the subject of much controversy. The earliest case in which we find the question discussed is that between Pennsylvania and Virginia, which gave rise to the passage of the act of 1793.2 Later, in 1837, we find a heated controversy on the point between the governors of Georgia and Maine. It appears that on June 21, 1837, Governor Schley, of Georgia, addressed a requisition to the governor of Maine, charging Daniel Philbrook, master of the schooner (or brig) "Susan," and Edward Kelleran, mate

1 Matter of Hughes, Phill. (N. C.) L. 57; In re Greenough, 31 Vt. 279; Com. v. Otis, 16 Mass. 197.

2 Supra, § 532.

of said vessel, fugitives from the justice of Georgia, with the offence of maliciously inveigling, stealing, and conveying away a negro man-slave, named Atticus, the property of James Sagurs and Henry Sagurs, and requesting that the said alleged fugitives be delivered up to Mordecai Sheftall, Junior, the duly authorized agent of the State under the act of Congress of February 12, 1793. The requisition was based upon the following affidavit of James Sagurs :

"That one Daniel Philbrook, late master of the schooner 'Susan,' of Boston, and one Edward Kelleran, late mate of said vessel, as deponent also believes, did, on or about the fourth day of May last, feloniously inveigle, steal, take, and carry away, without the limits of the State of Georgia, a negro man-slave, named Atticus, the property of this deponent, and his brother, Henry Sagurs; and, further, he saith that the said Daniel Philbrook and Edward Kelleran have been guilty, as deponent is informed and believes, of a felony under the laws of this State: and, therefore, prays a warrant may issue against the said Daniel Philbrook and Edward Kelleran, that they may be dealt with according to law. And this deponent further saith, that, since the commission of said felony, the said Daniel Philbrook and Edward Kelleran have fled from this State, and are, as he believes, at this time within the limits of the State of Maine, in the United States."

The requisition was answered by Governor Dunlap, of Maine, August 16, 1837. He said:

"Whatever may have been urged relative to this or any kindred subject, by individuals or self-constituted societies, the offence indicated in the affidavit, being made penal by the laws of Georgia, would, in my view, require executive interference as really and as readily as offences of any other character. I am, however, dissuaded from complying with your Excellency's request, not from any sympathies with those who would wantonly violate the laws of a sister State, but from considerations I beg leave now to present."

These considerations were (1) that the persons charged visited Georgia "in the course of their ordinary business as mariners," returned homeward " in the usual time" and " by the usual route;""had stated homes to which they openly