when considered in connection with the facts before the court and the qualification actually laid down, does not affect the general rule that the duty to surrender is absolute. The refusal to surrender a person who is under a criminal charge in the State upon which the demand is made is not an exercise of discretion in the usual sense, but merely the assertion of a universal principle wholly consistent with the imperative provisions of the Constitution. Those provisions, being intended to promote justice, but not to prefer the justice of one State to that of another, should be construed in accordance with that principle. The case of a person held on criminal process in the State in which he is found, and from which his surrender is demanded, should be regarded as casus omissus. It could not have been intended, for example, that a person held in one State on a charge of murder should be delivered over on demand to the authorities of another State on a charge of larceny. It should rather be said that the "discretion" of the governor in such a case consists in the exercise of the power, if he possesses it, to surrender the person demanded, notwithstanding that he is in custody on criminal process. By the Massachusetts statute of 1834 it was provided that if the person demanded was in custody in that State, the governor should issue his warrant at such time as he deemed conducive to justice. This provision was based upon the sound principle that compliance with the demand was not to be refused, but only suspended, so long as the interests of justice, growing out of the detention of the person in Massachusetts, required.

1

A person held on a rendition warrant cannot object that he has also committed an offence against the laws of the State from which he is ordered to be delivered up, since that State may choose to waive the exercise of its jurisdiction. This rule applies where the acts for which the surrender of the fugitive is granted are alleged to involve an offence against the laws of both States. If a person is surrendered while under

1 It has been suggested that the proper course in such a case is for the governor to issue his warrant and let the courts detain the prisoner. 13 Am. L. Rev. 238-239.

2 Supra, § 612.

3 Roberts v. Reilly, 116 U. S. 80.

recognizance to answer for an offence in the State in which he is found, it releases his bail.1

Some of the State

§ 619. Question as to Civil Actions. laws authorize a refusal to surrender when the person demanded is in custody or on bail to answer in a civil action. This is not in accordance with the rule that publicists generally lay down in extradition,2 or with that applied within a State in case of conflict between criminal and civil actions. The general opinion of writers on the subject is that expressed by the supreme court of California in Ex parte Rosenblat. Rosenblat was arrested on a warrant charging him with being a fugitive from the justice of the State of New York. While held on this warrant, an order was issued for his arrest in a civil suit. The sheriff attempted to serve this order, but the chief of police of San Francisco, who held the prisoner in custody, refused to surrender him. Subsequently the governor of California issued a warrant for his surrender, and the prisoner applied for discharge on habeas corpus on several grounds, one of which was that he could not be delivered. up to answer for an offence in New York while an order for his arrest in a civil action was pending in California. The court held that the same principle applied in rendition proceedings between States as in proceedings within the State, and that the interest of the private suitor must yield to the paramount interest of the people of the State. A different rule, however, was laid down by the supreme court of New Jersey in the Matter of Troutman, in 1854. Troutman was in the custody of the sheriff of Monmouth county, New Jersey, on a capias ad respondendum, when a warrant for his rendition was issued by the governor of that State, in compliance with a demand of the governor of Pennsylvania. Troutman was then brought before Potts, J., at chambers, on habeas corpus, in order that he might be discharged from detention on the civil process and delivered up as a fugitive. When, however, he was brought up on the writ of habeas corpus, it was discovered that the agent of Pennsylvania, learn

1 State v. Allen, 2 Humph. 258.

8 51 Cal. 285.

2 Supra, § 370.

44 Zabr. 634.

ing that he was in custody, had declined to demand him, and had withdrawn with the requisition and warrant. There was then really no case before the court; but in view of the fact that counsel at the bar, acting under the authority of the attorney-general of New Jersey, had intimated their dissatisfaction with the conduct of the agent, and an intention to press the requisition and demand for the delivery of the prisoner, Judge Potts stated his views at length, to the effect that "the act of Congress did not contemplate the case of a prisoner in confinement for debt or crime in the State to which he had fled, or one held in the custody of the law in a civil suit or under a criminal charge." He further declared that the general proposition that where criminal and civil proceedings come in conflict the criminal process takes preference, and that the rights of individual suitors are subordinated to the rights of the public, was applicable only within the State or sovereignty itself, and did not reach the question of interstate or national obligations and duties. He observed, however, that if the warrant on the requisition had been served first, the civil process would have been too late.1 The views expressed by Judge Potts on the subject of refusal to surrender where the fugitive is under arrest or in the custody of the law on civil process have been accepted in New York.2 § 620. Revocation of Warrant. The power of a governor

1 Judge Potts said that Governor Fort once issued a warrant to surrender one Smith, on a requisition from the governor of Maryland; but, ascertaining afterwards that Smith was confined in jail in Sussex county, charged with a crime committed in that county, he withdrew the warrant, and informed the executive of Maryland of the circumstances under which it was withdrawn, claiming that the fugitive must first answer to the laws of the jurisdiction which had him in custody, before he should be delivered up to the State from which he fled.

2 Matter of Briscoe, 51 How. Pr. 422. In the case of Ulman, before Mr. Justice Westbrook, it was said "that no law enables a governor of this State to abridge the legal remedies which suitors in its courts are pursuing against a party, and that consequently no duty is imposed upon the court to vacate its own order of arrest, and aid the executive mandate." Commenting on this, the Albany Journal said, editorially: “That the fact of a person being under arrest in a civil action would prevent his return for trial to a State where he was indicted for crime, we doubt. If such should be the case criminals would find an easy shield against the penalty of their acts, and could postpone indefinitely a trial for felony by submitting to the easy confinement of a debtor's prison." 14 Albany L. J. 190.

to revoke a warrant of rendition was first judicially considered in Massachusetts in 1857, and upheld by Mr. Justice Bigelow of the supreme court. The question was subsequently brought before the full court in the same case, but for technical reasons was not decided.1 The subject was next considered by the supreme court of Ohio, in a case in which Governor Young, on March 10, 1877, revoked a warrant which had been issued by his predecessor, Governor Hayes. The action of Governor Young was sustained, although when taken the fugitive had been delivered into the custody of the agent of North Carolina, the demanding State. The court cited a great number of instances of the revocation of warrants under various circumstances. 2 In the case of one Levine, a fugitive from New York, the governor of Ohio, under the authority of the resolution of the legislature of that State of March 25, 1870,3 revoked his warrant on the ex parte application of the fugitive, on the ground that the rendition was sought for the purpose of collecting a debt. This was done upon the advice of the attorney-general. But, upon a further showing, which established that the allegations of an ulterior purpose were not well founded, the attorney-general advised the governor to issue another warrant, which was done. In July, 1889, Governor Taylor of Tennessee revoked a warrant which he had issued for the rendition of a fugitive from Georgia, and informed Governor Gordon, of the latter State, of the fact. Governor Gordon replied that the fugitive had been arrested and carried to Morgantown, Georgia, where before the superior court of the county he had pleaded guilty and was sentenced, before Governor Taylor's letter was written. The case appears to have been dropped.5

3. Warrant of Surrender.

§ 621. Need not set out or be accompanied with Indictment An opinion was intimated by the supreme

or Affidavit.

1 Wyeth v. Richardson, 10 Gray, 240.

2 Work, agent, &c. v. Corrington, 34 Ohio St. 64.

8 67 Ohio L. 171. Supra, § 614.

6 Washington Evening Star, July 11, 1889.

47 Am. L. Record, 627.

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court of Texas in Ex parte Thornton,1 in 1853, that it might be necessary for the warrant of rendition to fully set forth the indictment or affidavit which accompanied the requisition. The case, however, went off on another point. In 1888 the court of appeals of Texas, having the question before it, disapproved the dictum in Ex parte Thornton, and held that the warrant need neither set out in full nor be accompanied with the indictment or affidavit, and that it was sufficient if it disclosed that the essential conditions of the law had been complied with.2 Such is now the general rule. But it has been held that if the warrant recites that the fugitive stands charged "by complaint" in the demanding State, the complaint should be produced, since a complaint is not convertible with an affidavit.1

3

§ 622. Must show that Law has been complied with. The warrant of rendition must show that the requirements of the law have been fulfilled. These in general are: (1) That the person charged has been demanded as a fugitive from justice. by the executive of the State from which he fled; (2) that the requisition was accompanied with a copy of an indictment, or an affidavit made before a magistrate; (3) that the copy of the indictment or the affidavit was duly certified as authentic. 5

19 Tex. 635.

2 Ex parte Stanley, 25 Tex. App. 372.

3 Com. v. Hall, 9 Gray, 262; State v. Richardson, 34 Minn. 115; Nichols v. Cornelius, 7 Ind. 611; Robinson v. Flanders, 29 Id. 10; People, ex rel., v. Donohue, 84 N. Y. 438; People, ex rel., v. Pinkerton, 17 Hun, 199; Leary's case, 10 Ben. 197; Ex parte Lewis, 79 Cal. 95.

State v. Richardson, 34 Minn. 115. The court said that a recital merely that the fugitive stood charged "by complaint in the county of Minnehaha, in the Territory of Dakota, with the crime" specified, was not sufficient. An affidavit is understood to be a sworn statement of facts or a deposition in writing, and to include a jurat, which means the certificate of a magistrate, showing that it was sworn to before him, including the date, and sometimes also the place. A complaint is not a convertible paper; for, though a complaint may be reduced to writing and subscribed, it need not necessarily be certified by a magistrate. 5 Matter of Clark, 9 Wend. 212. The recitative part of the warrant, which was held to be good in this case, was as follows:

"Whereas, it has been represented to me by the governor of the State of Rhode Island, that John L. Clark, late of Providence, in the said State, has been guilty of frauds in abstracting from the Burrilville Bank, in that State, money, notes,