by false pretences from persons in Germany, by letters written and mailed at Southampton, in England. The court held that the crime was committed in Germany, and that the prisoner was within the definition of section 26 of the act. This case goes even beyond our rule, for Nillins was not shown to have been in Germany either at or after the commission of the crime. But we are not compelled to resort to the treaties or legislation of any other country than the United States for proof of our position. The government of the United States has treaties of extradition with most of the leading nations of the world, and in those mutual arrangements there is, in regard to the question now under consideration, but one rule, and that is the rule for which we now contend. The oldest of the extradition treaties of the United States now in force is found in the tenth article of the treaty with Great Britain of the 9th of August, 1842, commonly known as the WebsterAshburton treaty, an instrument of which every line bears the marks of careful thought and expression, and in which the English language, of which Mr. Webster was a master, was not employed in a loose and inartificial manner. The caption of this treaty, as it stands in the original instrument signed by the negotiators, is as follows: "A Treaty to Settle and Define the Boundaries between the Territories of the United States and the Possessions of Her Britannic Majesty, in North America; For the Final Suppression of the African Slave Trade; and for the Giving up of Criminals Fugitive from Justice, in certain cases." Among the causes recited. in the preamble as leading to the conclusion of the treaty, it is declared that "it is found expedient, for the better administration of justice and the prevention of crime within the territories and jurisdiction of the two parties respectively, that persons committing the crimes hereinafter enumerated, and being fugitives from justice, should, under certain circumstances, be reciprocally delivered up." What, we may ask, was the interpretation given to this language by the negotiators? Turning to the 10th article, we find it stipulated that "all persons" shall be delivered up to justice "who, being charged with" the crimes enumerated, "committed

within the jurisdiction" of either of the contracting parties, "shall seek an asylum or shall be found within the territories of the other." The treaty was duly ratified with the advice and consent of the Senate, and is to-day the law of the land. The rest of the extradition treaties of the United States are of the same purport and contain the same definition. They describe the persons to be delivered up as "fugitives," as "fugitives from justice," or as "fugitive criminals," and then without exception provide that "persons," or "all persons," shall be delivered up who, being charged with the commission of crime within the jurisdiction of one of the contracting parties, "shall seek an asylum or shall be found," or merely "shall be found," within the territories of the other. And the only proof required in such cases, either by the treaties or by the statutes passed to give them effect, is a prima facie showing of criminality. We may find the same conception and definition of flight from justice in the Constitution and the act of Congress of 1793. But, in view of the previous history of the subject, of the long-existing practice of recovering criminals merely upon the indorsation of a warrant of arrest, of the great design of rendering closer and more intimate the relations of the States, and of preserving law and order throughout the Union, proof of criminality was not required. The Constitution provides that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." And in consonance with this principle and, indeed, in execution of it, nothing in the nature of evidence was exacted beyond proof that the person whose recovery should be sought was "charged in any State with treason, felony, or other crime."

§ 579. Matter of Mitchell. Reference was made in the case of Vinal1 to the decision of Governor Hill in the case of Mitchell. The question involved in this case was, it is true, whether the person charged was a fugitive from justice, and in that relation Governor Hill made certain pertinent observations upon the importance of the process of interstate rendition as affecting personal liberty. But the real question 1 Supra, §§ 575, 576.

at issue was whether Mitchell had actually been present in the State from which he was said to be a fugitive. He was charged by affidavit in New Jersey with manslaughter, the allegation being that he was the owner of a building there, which, by reason of being permitted to stand, after a fire, in an unsafe condition, fell and occasioned the death of four persons. The charge was criminal negligence, constituting manslaughter. Mitchell had for many years been a resident of the city of New York. He was not in New Jersey when the accident occurred, and had not been there for some weeks previously; and on these grounds he made an affidavit denying that he had fled from New Jersey, and that he was a fugitive from justice. Governor Hill held that Mitchell could not be a fugitive except by construction, and hence did not come within the Constitutional provision.1

On January,

§ 580. Case of "Electric Sugar" Swindlers. 28, 1889, three indictments were found in the county of New York, State of New York, charging William E. Howard and certain other persons, known as the electric sugar swindlers, with grand larceny in the first degree, under the New York code, for obtaining money by false pretences as to a supposed electric sugar-refining process, falsely alleged to have been invented by the husband of one of the accused persons. On the same day an application was made to Governor Hill by the district attorney of the county of New York for a requisition upon the governor of Michigan, in which State the of fenders lived and to which they returned after committing their depredations, which netted them upwards of two hundred thousand dollars. A requisition, accompanied with the usual documents, was duly granted, and, upon its reception, Governor Luce, of Michigan, granted a warrant for the fugitives' surrender. On a petition presented in behalf of the fugitives, a rehearing was granted, and the question was argued before Governor Luce, whether the affidavit as to flight, annexed to the requisition, was sufficient to show that they were fugitives from justice. This affidavit was in the usual form, alleging

1 Matter of Mitchell, 4 N. Y. Crim. Rep, 596; decision of Governor Hill, December, 1885.

that the defendants were in New York at the time of the commission of the crime charged, and stating that the affiant had reason to believe they were fugitives from justice and were in Michigan. It was also argued for the defendants that the indictment did not charge a crime, and that the application was for private ends. Touching the last point there was an affidavit of the district attorney of the county of New York, to the effect that he had made the application in good faith, and proposed to try the defendants without delay upon their surrender. Governor Luce rendered no formal opinion, but held that the warrant already issued should stand. In a letter written from recollection of the case, there being no papers but the petition filed with the governor, Mr. Charles R. Whitman, of Ann Arbor, Michigan, who represented the State of New York in the hearing, says:

"In effect he [the governor] held that he could not inquire behind the papers presented; that the indictment charging in form a crime under the laws of the State of New York, and the affidavit sufficiently showing that the parties were fugitives from New York, he had no occasion to go further; but he intimated, in the argument, that the affidavit of Col. Fellows [the district attorney of the county of New York] was conclusive as to the purport of the application." 1

The prisoners were accordingly delivered up. One of them, William E. Howard, was tried and convicted before Recorder Smyth, of the city of New York, in May, 1889, and was sentenced to imprisonment in the State prison for nine years and ten months. The other defendants were, after some detention, discharged on their own recognizance.

2. Fugitives by Construction.

§ 581. Person charged must have been in Demanding State. A wholly distinct class of cases are those in which the person charged was not in the demanding State or Territory at the time of the commission of the offence.2 It was said by

1 For reference to this case and for the letter of Mr. Whitman, I am indebted to Mr. Lindsay, assistant district attorney of the county of New York. 2 Leary's case, 10 Ben. 197.

the Supreme Court of the United States in Ex parte Reggel,1 that a fugitive is entitled under the act of Congress "to insist upon proof that he was within the demanding State at the time he is alleged to have committed the crime charged, and subsequently withdrew from her jurisdiction, so that he could not be reached by her criminal process."

§ 582. Case of Joseph Smith, the Mormon Prophet. This point appears first to have been judicially decided in the case of Joseph Smith, the Mormon Prophet, whose surrender was demanded by the governor of Missouri of the governor of Illinois in 1842, as an accessory before the fact to an assault with intent to commit murder in the former State. Having been arrested on a warrant of the governor of Illinois, Smith obtained from the United States Court for the district of Illinois a writ of habeas corpus. On the hearing of the writ before Judge Pope, evidence was offered to prove that the relator was not in Missouri at the date of the alleged offence. The court declined to decide whether such evidence was admissible, but discharged the prisoner on the ground that the affidavit on which the requisition was based was defective for the reason, among others, that it did not allege that Smith actually committed the crime in Missouri.2 Judge Pope said that Smith could not be a fugitive from the justice of Missouri, if the crime was not committed by him there.

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§ 583. Other Cases. In 1876, the governor of Wisconsin demanded the rendition from Illinois of Mr. Storey, editor of the Chicago Times," for libel. The governor of Illinois referred the matter to the attorney-general of the State, who advised that while the offence was renditionable, and Wisconsin might punish it if she had the offender within her jurisdiction, yet it not being shown that he was in Wisconsin when he committed the offence, it was not a proper case for surrender. The attorney-general also observed that so far as appeared from the papers, Mr. Storey might have been in Illinois when the offence was committed, and, if so, he was answerable in that State, whose laws make provision for the

1 114 U. S. 642. See infra, § 590.

2 Ex parte Joseph Smith, 3 Mc Lean, 121. See supra, § 555.