rence, 13 Blatchf. 295, 6 Ops. Atty. Gen. 691; United States v. Caldwell, 8 Blatchf. 131; Adriance v. Lagrave, 59 N. Y. 110, 17 Am. Rep. 317; Re Miller, 23 Fed. Rep. 33. But one extradited from a foreign country may claim exemption from trial upon any charge other than that mentioned in the extradition proceedings; and this right cannot be waived. Ex parte Coy, 32 Fed. Rep. 911. It may be open to the petitioner, when before the Canadian courts, to show that the extradition proceedings were not prosecuted in good faith. But, having been surrendered, it is not for him to raise that question before the tribunals of his own country. Adriance v. Lagrave, supra; Dow's Case, 18 Pa. 37; Re Miller,

supra.

Where a person has been brought within the jurisdiction of a court upon a requisition as a fugitive from justice, and has been tried for, or discharged as to, the offense charged against him, he ought not to be subject to arrest on a civil process until a reasonable time and opportunity has been given him to return to the state from which he was taken. In the courts of the United States the weight of judicial opinion is in favor of the proposition that where a party in good faith is brought within the jurisdiction of a state, or detained therein, being a nonresident, either as a party to a suit or as a witness in another suit, he is not subject to service. Small v. Montgomery, 23 Fed. Rep. 707; Juneau Bank v. McSpedan, 5 Biss. 64; United States v. Bridgman, 9 Biss. 221; Blair v. Turtle, 1 McCrary, 372; Atchison v. Morris, 11 Fed. Rep. 582. Many of the state courts hold the same rule. Comp ton v. Wilder, 40 Ohio St. 130; People v. Detroit Sup. Ct. Judge, 40 Mich. 730; Re Cannon, 47 Mich. 482; Baldwin v. Branch Circuit Judge, 48 Mich. 525; Jacobson v. Hosmer, 76 Mich. 234; Sherman v. Gundlach, 37 Minn. 118; Chubbuck v. Cleveland, 37 Minn. 466; Palmer v. Rowan, 21 Neb. 452, 59 Am. Rep. 844; Wanzer v. Bright, 52 Ill. 35; Williams v. Reed, 29 N. J. L. 385; Hill v. Goodrich, 32 Conn. 588. The last three cases go upon the same ground as Townsend v. Smith, 47 Wis. 623, 32 Am. Rep. 793.

§ 604. Conduct of Proceedings.-The rules prescribed for the conduct of proceedings under extradition treaties are: (1) demand for surrender and mandate of the president; (2) previous designation of the commissioner before whom the warrant of arrest is returnable; (3) certificates to documentary evidence; (4)

record by the commissioner of the proceedings before him; (5) verified translations of documents in foreign languages; (6) contents of complaint. Re Henrich, 5 Blatchf. 414. Whether a party making complaint is duly authorized to appear in behalf of the foreign government is a matter to be inquired into before the commissioner. Re Kelly, 26 Fed. Rep. 852. On motion of a sovereignty making the demand, a commissioner may in his discretion adjourn the hearing of the extradition proceedings. Re Ludwig, 32 Fed. Rep. 774; State v. Jackson (Tenn.) 1 L. R. A. 373, note.

§ 605. Evidence by Deposition.-Copies of depositions taken by a magistrate in a foreign country must be certified by the United States Consul there to be authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country. Re McPhun, 24 Blatchf. 254, 30 Fed. Rep. 57. Upon hearing a case arising under treaty, not only copies of depositions, but also copies of warrants and other papers, certified under the hand of the person issuing the same, and attested on oath of the party producing them to be true copies, are admissible as evidence of criminality of the accused. Ex parte Ross, 2 Bond, 252. The Act of Congress of 1860, relating to proof of authenticity of papers produced in the proceedings, does not repeal prior acts, but merely provides another mode of authentication. Ex parte Ross, supra. The judicial proceeding in a Prussian court being valid evidence in that country, a certificate of the United States Minister, that the documents are legally authenticated, entitles them to be received here as evidence where the certificates are in sufficient form. Re Behrendt, 23 Blatchf. 40; Re Farez, 7 Blatchf. 345; Re Wadge, 15 Fed. Rep. 864, 21 Blatchf. 300. Under the Act of 1882, regarding evidence in extradition cases, the certificate of the resident minister to copies of documentary evidence from abroad may be supplemented by oral proof of competency of the originals. Re Wadge, supra; Re Henrich, 5 Blatchf. 414. Under the Revised Statutes, depositions may be authenticated by a Vice Consul of the United States. Re Herres, 32 Fed. Rep. 165.

The Act of Congress declares in substance "that in extradition cases copies of depositions relating to the allegations in the complaint shall be received and admitted as evidence on the hearing, for all the purposes of the 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 consulate officer shall be proof that any deposition, warrant, or other paper, or copies thereof so offered, are authenticated in the manner required by this Act." See 22 Stat. at L. p. 216, § 5.

The certificate of the consul to the depositions fully meets the requirements of this Act to entitle depositions to be received by the commissioner as evidence of criminality. It has been held by all tribunals which have passed upon this Act of 1882 that "similar purposes" refer to the words "for all the purposes of such hearing," that is, to proof of criminality. See Re McPhun, 30 Fed. Rep. 57; Re Herris, 32 Fed. Rep. 583; Re Henrich, 5 Blatchf. 414.

§ 606. Hearing on Application for.-Where there is an application for extradition, sustained by complaint on oath, it is not for the judge to consider whether or not a foreign government has authorized the application; he has only to examine the evidence of criminality, and if not sufficient to sustain the charge, to certify the same to the secretary of state. Re Dugau, 2 Low. Dec. 367. The first question is one of law, open upon the face of the papers to judicial inquiry; the second is one of fact, upon which the governor's decision is sufficient to justify removal until the presumption in its favor is overthrown. Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544. In a proceeding under the Treaty with Great Britain evidence of criminality must be such as would justify the arrest and commitment of the accused according to law in the place where he is found. Re McPhun, 24 Blatchf. 254, 30 Fed. Rep. 57; Ex parte Kaine, 3 Blatchf. 1; United States v. Warr, 3 N. Y. Legal Obs. 346; Re Heilbronn, 12 N. Y. Legal Obs. 65; 4 Ops. Atty. Gen. 201, 330; Re Kelley, 2 Low. Dec. 339; Re Macdonnell, 11 Blatchf. 170; Re Farez, 2 Abb. U. S. 346.

In People v. Pinkerton, 17 Hun, 199, it was held, that “Where a warrant is issued by the governor for the rendition of a fugitive from justice, the court cannot go behind the warrant and inquire into the truth of the facts recited in it. The governor in determining that the Act of Congress has been complied with, has no jurisdiction to inquire into the truth of the charges made,

or to look outside of the papers presented to determine whether or not the person demanded is a fugitive from justice. The fact that the person has committed a crime in another state and that he has been found in this state, established conclusively that he is a fugitive from justice." It was also said in that case that where "the rendition warrant is accompanied by the papers on which it issued, the question as to the sufficiency of those papers, as a compliance with the Act of Congress, is before the court." That case was approved by the court of appeals in People v. Pinkerton, 77 N. Y. 245, and it was held that the "recitals in the warrant of a governor of this state for the arrest of a fugitive from the justice of another state are to be taken, at least prima facie, as true." In People v. Donohue, 84 N. Y. 438, it was held, viz: "Where the papers upon which a warrant of extradition is issued are withheld by the executive, the warrant itself can only be looked to for the evidence that the essential conditions of its issue have been complied with, and it is sufficient if it recites what the law requires." In the opinion delivered in that case it was said: "Where, however, the papers upon which the warrant is founded are not produced, but are withheld by the executive in the exercise of official discretion and authority, we can look only to the warrant itself, and its recitals, for the evidence that the essential conditions of its issue have been fulfilled."

§ 607. Accused must be Tried for the Offense for which he was Extradited.-Evidence is always relevant which tends to show that the accused is on trial for an offense other than the one specified in the papers upon which he was extradited. The elaborate and exhaustive opinion of Valentine, Justice, in the recent case of State v. Hall, 40 Kan. 338, commends itself to our judgment, as a correct exposition of the law; and it would be difficult to add anything to the force of his reasoning. Can a person be extradited for one offense and immediately tried for a wholly different offense? We would think not. We would think not. It is a general maxim of law that judicial process shall not be abused. But to try a person for an offense other than the one for which he was extradited would be an abuse of judicial process. Within this broad and general maxim is included the following more definite rule of law, to wit: Where the presence of a person has been changed from a place outside of the territorial jurisdiction of a court of justice to a place within such jurisdiction, and this change

has been procured through the instrumentality of another person and upon a pretext of thereby accomplishing some particular purpose, such first mentioned person cannot, after his presence has been thus obtained within the territorial jurisdiction of the court, and before he has had an opportunity to return, be prosecuted in such court by the person who has thus been instrumental in procuring his presence, for the purpose of accomplishing some wholly different purpose. This rule of law has often been applied by the courts in civil cases: Van Horn v. Great Western Mfg. Co. 37 Kan. 523, 526, and cases there cited; Spear, Extradition, 526, and cases there cited; Compton v. Wilder, 40 Ohio St. 130. A fugitive from justice can be obtained from another state or country only with the consent of the executive authorities of such other state or country; and for a state to procure a fugitive from justice from some other state or country to be tried for some particular offense, by the consent of such other state or country, and then to try him for another and a different offense before he has had an opportunity to return, would be such an unwarranted abuse of judicial process, such a fraud upon justice, such an act of perfidy, that no court in any country should for a moment tolerate the same.

The foregoing rule applies in criminal cases where the fugitive from justice has been extradited from a foreign country. United States v. Rauscher, 119 U. S. 407, 30 L. ed. 425; United States v. Watts, 8 Sawy. 370; Ex parte Hibbs, 26 Fed. Rep. 421; Ex parte Coy, 32 Fed. Rep. 911, and note; State v. Vanderpool, 39 Ohio St. 273, 48 Am. Rep. 431.

a. Distinction in Cases of Interstate Rendition.-It is our endeavor in this subdivision to specifically note a distinction of great importance pertaining to this subject. For eighty years the claim has been steadily advanced in behalf of fugitive criminals and maintained with great ingenuity and vigor, that under no circumstances can he be tried for any other offense than that specifically stated in the demanding papers served upon the executive of the asylum state. This theory expands its many plausibilities upon the cardinal principles that underlie treaty stipulations with foreign states, and the extreme speciousness that supports the argument sustaining it have led many courts of high repute into erroneous rulings regarding it. The fallacy of the entire assumption lies in a misapprehension of the nature and