Section 3 of the Act of August 3, 1882 (22 Stat. at L. 215) provides: "That all hearings in cases of extradition under treaty stipulation or convention shall be held on land, publicly, and in a room or office easily accessible to the public. That on the

hearing of any case under a claim of extradition by any foreign government, upon affidavit being filed by the person charged setting forth that there are witnesses whose evidence is material for his defense, that he cannot safely go to trial without them, what he expects to prove by each of them, and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the judge or commissioner before whom such claim for extradition is heard may order that such witnesses be subpoenaed; and in such case the costs incurred by the process, and the fees of witnesses, shall be paid in the same manner that similar fees are paid in the case of witnesses subpoenaed in behalf of the United States."

"If, on such examination, it is made to appear that the person so arrested is a citizen of the United States, he shall be forthwith discharged from arrest, and shall be left to the ordinary course of law. But if this is not made to appear, and such court, judge, or commissioner finds, upon the papers herein before referred to, a sufficient prima facie case that the matter concerns only the internal order and discipline of such foreign vessel, or, whether in its nature civil or criminal, does not affect directly the execution of the laws of the United States, or the rights and duties of any citizen of the United States, he shall forthwith, by his warrant, commit such person to prison, where prisoners under sentence of a court of the United States may be lawfully committed, or in his discretion, to the master or chief officer of such foreign vessel, to be subject to the lawful orders, control and discipline of such master or chief officer, and to the jurisdiction of the consular or commercial authority of the nation to which such vessel belongs, to the exclusion of any authority or jurisdiction in the premises of the United States or any state thereof. No person shall be detained more than two months after his arrest, but at the end of that time shall be set at liberty and The expenses of

shall not again be arrested for the same cause. the arrest and the detention of the person so arrested, shall be paid by the consular officers making the application." U. S. Rev. Stat. § 4081.

Section 5 of the Act of Congress of August 3, 1882 (22 Stat. at

L. 215), provides: "That in all cases where any depositions, warrants or other papers, or copies thereof, shall be offered in evidence, upon the hearing of any extradition case under title 66 of the Revised Statutes of the United States, such depositions, warrants and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing, if they shall be properly and legally authenticated, so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped; and the certificate of the principal diplomatic or consular officer of the United States, resident in such foreign country, shall be proof that any deposition, warrant or other paper, or copies thereof, so offered, are authenticated in the manner required by this Act." The certificate provided for by the Act is conclusive evidence on the question of authentication; but it is not the only evidence that may be offered upon that point. Authentication in regard to original papers may be made by oral proof. Re Fowler, 18 Blatchf. 437, 4 Fed. Rep. 303; Re McPhun, 30 Fed. Rep. 57; Re Wadge, 15 Fed. Rep. 865, 16 Fed. Rep. 333, 21 Blatchf. 300.

By the Act of 1793, three things are rendered necessary to precede and justify the warrant of extradition. There must be a demand from the governor of the state within which the crime has been committed for the surrender of the fugitive who has fled from his jurisdiction. Such requisition must be accompanied by an indictment, or an affidavit charging the commission of the offense. And such indictment or affidavit must be authenticated by the certificate of the executive making the requisition. These preliminary conditions are essential. To say they are not would be to disregard the law, and make the executive an autocrat. If they are essential, their presence or absence in a given case must, of necessity, become the subject of judicial investigation when the judgment of the law is invoked. The New York Court of Appeals have held that where the preliminary papers upon which a warrant of extradition has been granted are produced, and are before the court, it is both right and proper to examine them, and judge and determine, when legal process is invoked, whether they are sufficient, under the law, to justify the warrant of extradition. People v. Brady, 56 N. Y. 182.

"The words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification and import;

and if technical words are used, they are to be taken in a technical sense, unless it clearly appears from the context, or other parts of the instrument, that the words were intended to be applied differently from their ordinary or their legal acceptation. The current of authority at the present day, is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. A saving clause in a statute is to be rejected, when it is directly repugnant to the purview or body of the act, and could not stand without rendering the act inconsistent and destructive of itself." 1 Kent, Com. 1, pt. 111, p. 462.

§ 601. Comments upon the Constitutional Provisions.The language of the constitution is, as regards the nature of the duty to deliver the fugitives, imperative and unequivocal: "A person charged with treason, felony, or other crime, who shall flee from justice and be found in another state, shall on demand," etc., be delivered up. And the great weight of authority, as well as the obvious import of the language used, is that the constitution established an absolute right to the surrender, when the case was one coming within the terms of the constitution,— that is, the case of a person charged with crime, who had fled from justice, and whose surrender was demanded by the proper authority. It is true, that the duty has been by the governors of some of the states, treated as discretionary, but the authorities are clearly against this view. Kentucky v. Dennison, 65 U. S. 24 How. 66, 68, 16 L. ed. 717. It has been well remarked, in reference to the case last cited, that although the court finally came to the conclusion that they had no jurisdiction to grant the mandamus prayed for, yet the views expressed in that decision as to the construction of this clause of the constitution possess but little less than the force of absolute authority. Re Voorhees, 32 N. J. L. 149.

§ 602. What Justifies the Issuance of the Warrant.-To justify the issuance of a warrant of rendition of a fugitive from justice, it must appear, First, that a demand of him as a fugitive from justice has been made by the executive authority of the state where the crime charged was committed. Second, such demand must be accompanied by the copy of an indictment found, or an affidavit made before a magistrate of said state, charging

the person so demanded with having committed treason, felony or other crime; and, Third, such copy must be certified as authen tic by such executive authority. U. S. Const. art. 4, § 2; U. S. Rev. Stat. § 5278; People v. Pinkerton, 17 Hun, 199.

"Upon the question whether the warrant of the governor is con. clusive evidence in this proceeding that the party named in the warrant stands charged with crime in the state demanding his surrender, I am of opinion both on reason and authority that the warrant is conclusive. The statute itself expressly provides that the governor shall cause the party to be arrested and delivered up. It makes no provision for any other proceedings whatever subsequent to the issue of the mandate of the governor except the delivery of the party and his removal by the agent of the demanding state.

"Not only is there nothing in the act to show that any proceedings subsequent to the issue of the warrant were contemplated to give full authority for the arrest and removal of the party, but there is nothing in the act requiring the governor issuing the warrant to attach thereto the evidence or copies of the evidence on which he acted, nor since the passage of the act has the practice obtained, so far as appears, of attaching such copies." Choate, J., in Leary's Case, 6 Abb. N. C. 43.

Jurisdiction cannot be acquired by the forcible bringing of a party into the state. Neither can it be obtained by acts which could constitute a crime in both countries. The prisoner could not be said to have "fled" into this state if he had been forcibly brought here.

So long as the prisoner comes voluntarily into the state, it would seem that the people are not bound to inquire further as to the means or inducements which some witness or third person may have used to induce his coming, before they are permitted to arrest him. The case is to be considered the same as though the prisoner had fled from this state into Canada and had then returned here. It makes no difference that he fled from a sister state rather than from this state. It is sufficient that he is a "fugitive from justice" and is found in our own state. Re Brown, 4 N. Y. Crim. Rep. 576.

The courts of a state will not generally investigate, either on habeas corpus proceedings or on final trial, the mode of the prisoner's capture, whether it was legal or illegal, whether it was

under lawful process or without any process at all, where he has fled to another state or country and been brought again into its jurisdiction. The question is the legality of the prisoner's detention, not the legality of his arrest, unless on the complaint of the governor of the state whose laws were violated by such unlawful

arrest.

This is the accepted doctrine of the state and Federal courts, and is founded on an ancient and well settled principle of the common law. Spear, Extradition, 181, 492, 554; 7 Am. & Eng. Enc. Law, 643, 653, note; Re Fetter, 23 N. J. L. 311, 57 Am. Dec. 400, note, and cases cited; Com. v. Shaw (Pa.) 6 Crim. L. Mag. 245; Ex parte Barker (Ala.) 11 Crim. L. Mag. 632.

In State v. Brewster, 7 Vt. 118, where the prisoner had been kidnapped in Canada and forcibly brought into the state of Vermont, his discharge was refused, and he was held liable to answer an indictment for crime in the latter state. A like ruling was made in Ker v. People, 110 Ill. 627, 51 Am. Rep. 706, in the case of one who had been seized by private persons in Peru, without warrant of law, and was brought to California, and from thence to the state of Illinois by process of extradition. The authorities on the subject are ably reviewed in this case by Scott, J., and the United States Supreme Court, on appeal to that tribunal, declined to disturb the judgment of the supreme court of Illinois. Ker v. Illinois, 119 U. S. 436, 30 L. ed. 421. See also Spear, Extradition, 181-186; Ex parte Ker, 18 Fed. Rep. 167.

603. Rights of Party Proceeded Against.-On the examination of a party before a United States commissioner in the state of Minnesota, in extradition proceedings under the Treaty of 1842 with Great Britain, he has the right to examine witnesses in his own behalf. Re Kelley, 25 Fed. Rep. 268. The testimony of the accused is not admissible, although the judge be sitting in a state where such evidence is admissible. Re Dugau, 2 Low. Dec. 367. The Treaty of Extradition with Great Britain does not give the accused the right to be confronted by witnesses against him; the evidence may be in the form authorized in the country whence it comes, and in substance sufficient to warrant action in the country whose action is invoked. Re Dugau, supra. Extradition proceedings do not involve in their nature the right of accused not to be prosecuted upon any other charge than that upon which his extradition is asked. United States v. Law