different classes of crimes; and in requiring, in accordance with the Constitution, proof of the existence of a charge, instead of proof of criminality, excluded in every case an inquiry into the subject of guilt. Still another objection is that any classification of crimes depending upon the views of particular executives would be shifting and arbitrary, so that the Constitutional provision would be differently executed in different States, and at different times in the same State. The fourth and last objection we shall mention is that the Constitutional .provision has been held to apply to any and every act made criminal by the laws of the demanding State. Each State has thus an equal right with all others to compliance with its demands, without being called upon to justify its laws or to show that they are such as generally exist. It is not material that the act charged is not a crime in the State upon which the demand is made, or in any other State than that from which the demand proceeds. Much less, therefore, is it to be taken into account that the act is not generally criminal.

§ 578. What is a "Fugitive from Justice" in the Extraditionary Sense?. -If to "flee from justice" in the sense of the Constitution means an intentional departure to escape prosccution anticipated or begun, of which proof may be exacted, it is obvious that this becomes the crucial point in interstate rendition, and that hereafter this will be the question to be met in limine wherever the person whose delivery up is demanded chooses to assert his rights. If this theory should be adopted and faithfully carried out, it is not extravagant to say that its effects must be far-reaching, and might in the end create a condition for which the abandonment of the theory would be the only remedy. But, is this the true interpretation of the Constitution? We venture to suggest that there is another view of the subject, founded upon principle, compatible with common sense, and justifiable in law, which is worthy of consideration. This view is that, proof of criminality having been dispensed with, it was intended that the Constitutional provision should in general apply to persons who, being charged in one State with having committed a criminal act within its territorial jurisdiction, should, when

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it was sought to subject them to prosecution, be found in another State? This by no means renders the words "flee from justice" surplusage. It excludes the large class of cases in which the presence of the accused in the State in which. the crime is charged to have been committed was only constructive, of which we shall have more to say hereafter. It was to this class of cases that the Supreme Court referred in Roberts v. Reilly,2 when it said that the question whether the person demanded was a fugitive from the justice of the State the executive authority of which made the demand, was "a question of fact." For, subsequently referring to that question, the court said:

"On the question of fact, whether the appellant was a fugitive from the justice of the State of New York, there was direct and positive proof before the governor of Georgia, forming part of the record in this proceeding. There is no other evidence in the record which contradicts it. The appellant in his affidavit does not deny that he was in the State of New York about the date of the day laid in the indictment when the offence is said to have been committed, and states, by way of inference only, that he was not in that State on that very day; and the fact that he has not been within the State since the finding of the indictment is irrelevant and immaterial. To be a fugitive from justice, in the sense of the act of Congress regulating the subject under consideration, it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but

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1 Where an affidavit as to flight accompanies a requisition, it generally alleges that the accused was in the State in which the crime is charged to have been committed, at the time of its commission, and states that affiant is informed and believes that such person is a fugitive from justice. So far as the affidavit proves anything, it merely tends to show the two facts of presence in the State at the commission of the crime and departure therefrom afterwards. The statement on information and belief relates to the latter fact, and not to the condition of mind of the accused. It is true that, in regard to such condition, an averment on information and belief is all that could be made, but it would at the same time be worthless as evidence of the real fact.

2 116 U. S. 80, 95, 97.

8 The italics are our own. If, as contended in Vinal's behalf, it is necessary to prove as a fact that the person charged went away for the purpose of evading punishment, and that he is a fugitive from justice in that sense, what would be

simply that having within a State committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offence, he has left its jurisdiction and is found within the territory of another."

It may be observed that the Supreme Court defines a fugitive from justice "in the sense of the act of Congress" of 1793, and not expressly in the sense of the Constitution. The court, however, in another part of its opinion, refers to that act as a "contemporary construction" of the constitutional provision, and so treats it. And the act of Congress says that whenever the executive authority of any State "shall demand any person as a fugitive from justice, and shall moreover produce the copy of an indictment found, or an affidavit . . . charging the person so demanded, it shall be the duty of the executive authority of the State or Territory to which such person shall have fled, to cause such person to be arrested to the end that he may be delivered up.1 The employment of the phrase "flee from justice" merely to indicate a change of place, by going from one State into another, is very forcibly illustrated by the language of this act, which describes the official who is to cause the arrest and delivery, as the executive authority of the State or Territory to which the person charged "shall have fled." The Constitution says that a person shall be delivered up who, being charged in any State, shall "flee from justice" and "be found" in another State. This clearly excludes the notion that the accused must have sought asylum in the latter State; and it is not to be supposed that Congress in

the rule with regard to a person who, while on a railway train from Portland to New York, killed a fellow-passenger in Massachusetts, and then continued on his way unmolested to his destination? His ticket was from Portland to New York ; perhaps his home was in the latter city; and, when he arrived there, his presence in New York and his absence from Massachusetts were in no wise related to the crime committed while in transitu in the latter State. If the question be one simply of fact, to be determined upon the proofs, it would be a most violent, arbitrary, and unwarrantable assumption to say that he fled from Massachusetts to escape prosecution.

1 See 4 Kent's Comm. *32, and notes (12th or 13th ed.) as to absoluteness of duty to comply with a demand preferred in accordance with the act of Congress.

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tended to superadd such a condition, or that it used the term "fled" in any other than that locational sense in which it appears to have understood the phrase "flee from justice," when, in providing that the person should be demanded as "a fugitive from justice," it only required evidence that he was charged with the commission of a crime in the State from which the demand emanated. These two facts- the charge of crime in one State and the being found in another prised the elements which, to minds trained in the common law, with its strict theory of the local jurisdiction of crimes, constituted the flight from justice; and the provision as to fleeing from justice at once recognized and conserved that theory. In this relation it should be recollected that the constitutional provision is to be construed in the light of its manifest purpose and effect, and not as a penal statute, involving a penalty upon conviction of crime.2 If it were read in the latter sense, it might be argued that the charge of crime must precede the departure; for the provision is that "a person charged in any State . . . who shall flee from justice and be found in another State," shall be delivered up.

1 That this principle was in the minds of the framers of the Constitution, and was deemed by our statesmen, both then and afterwards, to be of great importance, is shown by the Constitution and its amendments. By section 2, art. 3, it is provided, in respect to the judicial power of the United States, that "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed . . .” In the 6th amendment it is provided that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . . .”

2 The difference between holding a person to be a fugitive from justice in the sense of a penal statute, and holding him to be a fugitive from justice in the extraditionary sense, may be illustrated by the case of a statute of limitations, in which it is provided that the bar to prosecution arising from lapse of time shall not apply to fugitives from justice. In this case the inquiry directly involves the question of liability to prosecution and punishment, and is a matter of defence to be determined by the jury upon the facts. United States v. O'Brian, 3 Dillon, 381. In extradition or rendition proceedings the object is merely to bring the person charged before the court having jurisdiction of the offence, in order that his liability to punishment may be determined. His delivery up as a fugitive from justice in such proceedings would not preclude his assertion before that court of the bar of the statute as a matter of defence. Supra, § 445.

Such a construction has, indeed, been suggested, but it is not known ever to have found acceptance. For the obvious purpose of the clause was to secure each State against the frustration of its criminal procedure by the departure of a person from its jurisdiction, either before or after the formulation of a charge against him. It was intended to require persons, who had been in a State, to answer for what they were legally charged to have done there against its laws. The question of guilt or innocence, or of the imposition of a penalty, was no more involved than by the arrest of a person in the State in which the alleged criminal act was committed. It was merely intended to render the administration of justice efficient by making it certain. And the great design was that certainty and efficiency should prevail throughout the United States, unobstructed by the international doctrine of the right of asylum.

Not only, therefore, is it not unreasonable to argue that the charge of commission of crime in one State and the being found in another State constitute a fleeing from justice in the sense of the Constitution, and render the person charged a fugitive from justice in the sense of the act of Congress, but it may also be maintained upon the clearest and most conclusive authority that those two facts are uniformly held to make a man a "fugitive from justice" or a "fugitive criminal" in the sense in which those terms are employed in extraditionary relations generally. On this subject it is permissible to refer to the British Extradition Act, 1870, in section 26 of which there is the following clause: "The term 'fugitive criminal' means any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state who is in or is suspected of being in some part of Her Majesty's dominions; and the term 'fugitive criminal of a foreign state' means a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that state." In Regina v. Nillins, a demand was made by Germany for the extradition of one Nillins who, being in England, was charged with having obtained goods

1 53 L. J. M. C. 157.