must in the absence of controlling proof be taken to be true. 1 It was held by Judge Choate, in Leary's case,2 in 1879, that the court could only examine the question of identity, and perhaps the question of constructive flight. As to the latter, however, he intimated a serious doubt. 8 § 635. Warrant of Surrender held not to be conclusive. The first reported case in which a court discharged a prisoner on habeas corpus on the ground of the insufficiency of the evidence on which the rendition warrant was based, is that of Ex parte Smith, in 1842. There the relator was discharged on the ground that the affidavit accompanying the requisition, which was before the court, did not allege or show that he was a fugitive from justice. Following the example set in Ex parte Smith, some of the courts have not hesitated, the papers being before them, to review the action of the governor. Thus the supreme court of California, in 1855, in the Matter of Manchester, said that "while the courts of the State possess no power to control the executive discretion, and compel a surrender, yet, having once acted, that discretion may be examined into, in every case where the liberty of the subject is involved." The court then examined the affidavit accompanying the requisition on which the rendition warrant was based. The affidavit, however, was held to be sufficient, and the relator was remanded. And the court refused to consider evidence that the affidavit was a forgery, on the ground that the certificate of the demanding executive was conclusive as to the question of authenticity.5 The ruling of the court 1 Com. v. Hall, 9 Gray, 262; Kingsbury's case, 106 Mass. 223; Brown's case, 112 Id. 409; Davis' case, 122 Id. 324. See also Taylor v. Taintor, 16 Wall 336, 374; In re Jackson, 2 Flippin, 183. 2 10 Ben. 197. 8 3 McLean. 121. See Ex parte Donaghey, 2 Pitts. L. J. 166. 45 Cal. 237. 5 In Ex parte Lewis, 79 Cal. 95, April 30, 1889, it was contended that the detention of the prisoner was illegal because the warrant did not contain a copy of an indictment, or of an affidavit, duly authenticated by the demanding governor. The warrant recited that the demand was accompanied with "a complaint and information, affidavits, and warrant of arrest," &c. The court held that the recitals in the warrant were sufficient, and should be taken as true, since they were not in fact disputed. in the Matter of Manchester has been followed in all its parts and with like results by the supreme court of Florida, in Kurtz v. State.1 In the Matter of Romaine, 2 the supreme court of California supplied a defect in the warrant by resort to a certified copy of the affidavit accompanying the requisition. 3 In the case of Roberts v. Reilly, it was held by the Supreme Court of the United States that, under the act of Congress of 1793 (section 5178 of the Revised Statutes), it must appear to the governor of the State to whom the demand is presented, before he can lawfully comply with it, "that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand." This prerequisite, the court said, "is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus." At the same time the court held that the question whether a corporation was a person capable of owning property could not be raised to test the legality of the detention of a person held on a rendition warrant based on a charge of larceny of the property of such corporation, as averred in an indictment accompanying the requisition. It was held by the Supreme Court, in a case decided in the preceding year, that questions of technical pleading could not be raised in respect to an indictment accompanying a requisition. It has already been observed that the courts have paid less regard to affidavits than to indictments in determining whether a charge is substantially made.5 1 22 Florida, 36; 1883. See also Ex parte Powell, 20 Id. 806, to the effect that the judgment of the executive issuing the rendition warrant is conclusive as to whether the statutory conditions have been complied with. 2 23 Cal. 585. 116 U. S. 80; 1885. See also State v. O'Connor, 38 Minn. 243; 1888; Davis' case, 122 Mass. 324; In re Voorhees, 3 Vroom, 141; In re Greenough, 31 Vt. 279; In re Clark, 9 Wend. 212. Supra, §§ 634, 550, 549. Infra, § 640. Ex parte Reggel, 114 U. S. 642; 1884. • Davis' case, 122 Mass. 324. Supra, §§ 549, 550. It was broadly held by Judge Handley of the court of common pleas of Luzerne county, Pennsylvania, in 1878, that so much of the Pennsylvanian statute of that year as limited the VOL. II. 14 § 636. Decisions in New York. It has been seen that in Roberts v. Reilly,1 the Supreme Court of the United States said that the question whether the fugitive was substantially charged with a crime in accordance with the act of Congress was always open to inquiry on habeas corpus "upon the face of the papers." The force of this expression is illustrated by the course of judicial decision in the State of New York. In the case of Clark,2 the court held, in accordance with the general rule, that the warrant of rendition must show upon its face that the essential requirements of the law had been met; and the warrant before the court was held to be sufficient and the petitioner remanded. In Soloman's case, in 1866, Judge Russell, city judge of New York City, citing Clark's case, discharged the prisoner from detention on a rendition warrant, because the affidavit was not authenticated in accordance with the act of Congress. This view of the powers of the court on habeas corpus was followed by the court of appeals of New York in People, ex rel. Lawrence, v. Brady, in 1874. The relator was arrested on a warrant issued by the governor of New York on December 8, 1873, directing his arrest and delivery to the agent of the State of Michigan, pursuant to a requisition of the governor of that State. In two applications for discharge on writs of habeas corpus, one to the court of oyer and terminer for the county of New York, on a writ issued by the supreme court of the State, and the other to the United States circuit court for the Southern District of New York, the writs were dismissed and the prisoner remanded, on a return by his custodian of the warrant of rendition. On January 16, 1874, upon a petition alleging the insufficiency of the requisition papers on which the warrant of the governor was issued, another writ of habeas corpus was allowed by Mr. Justice Lawrence of the supreme court. The sheriff made return thereto before Mr. Justice Brady, of the same court, that he held relator under inquiry on habeas corpus in a rendition case to the question of identity was unconstitutional. Ex parte Butler, 18 Alb. L. J. 369. 1 Supra, § 635. 8 1 Abb. Pr. (N. s.) 347. 2 9 Wend. 219. Supra, § 620. 4 56 N. Y. 182. and by virtue of the warrant of the governor of New York; and with this return he set forth all the proceedings before the court of oyer and terminer, and before the circuit court of the United States. The relator traversed this return, setting forth in his answer the affidavits which accompanied the requisition; and alleging, among other things, that the affidavits were defective in not showing the nature, facts, and circumstances of the transaction therein set forth, and in not disclosing the grounds upon which were based the assertions of illegality. To this traverse the sheriff demurred. Mr. Justice Brady sustained the demurrer, dismissed the writ, and remanded the relator to the custody of the sheriff; and his proceedings were affirmed on certiorari by the supreme court in general term. A writ of error, to review the judgment of the latter, was issued by the court of appeals, and the judgment was reversed, the court looking into the affidavits and holding the offence not to be sufficiently charged. Grover, J., dissented. The court cited Ex parte Smith,1 which was on the question of constructive flight, and In re Clark,2 which related to the sufficiency of the rendition warrant on its face; neither of which, consequently, was an authority in point. 3 The effi § 637. Withholdment of Papers by Executive in New York. As an antidote to the decision of the court of appeals in People v. Brady, the governor of New York adopted the expedient of retaining the requisition and accompanying papers on which the rendition warrant was issued. cacy of this measure has since been amply demonstrated. In the Matter of Nathan Ulman, a fugitive from the justice of Pennsylvania, held on a rendition warrant of the governor of New York, Mr. Justice Westbrook, of the supreme court of the latter State, inadvertently signed a writ of certiorari, which was presented to him by counsel for Ulman, directed to the governor, supposing that the certiorari, which was isused at the same time as a writ of habeas corpus, was like the 1 3 McLean, 121. * Supra, § 636. • Matter of Briscoe, 51 How. Pr. 422. 29 Wend. 219. latter directed to the officer having Ulman in custody.1 The writ of certiorari was, however, duly served upon the governor, and the papers asked for sent by his Excellency to the court, but with the following declaration: "I deny, with great respect, the right of the court to issue said writ of certiorari to me, or to review, directly, my action in discharging the duty imposed upon me by the Constitution of the United States with respect to the surrender of fugitives from justice." Judge Westbrook, when the facts came to his knowledge, acquiesced in the position of the governor in respect to the lack of power to compel him by writ of certiorari to produce the papers on which he acted; but he subsequently asserted the power to review the action of the executive, as held in People v. Brady, the papers being before the court, though the fugitive was not discharged.2 The question was next brought up in People, ex rel. Connors, v. Reilley,3 in 1877, before the supreme court of New York, First Department, on a certiorari to the court of oyer and terminer of the city and county of New York. Connors, who was in custody on a rendition warrant issued by the governor of New York, obtained from the latter court a writ of habeas corpus. The only return made was that of the warrant, the affidavits accompanying the requisition being withheld by the governor, who refused either to produce the originals or to allow copies to be taken. On the hearing of the writ, the court of oyer and terminer held that the only question into which it could inquire was that of the fugitive's identity with the person named in the warrant. The supreme court, on the certiorari, held that the court of oyer and terminer had no jurisdiction at all, for the reason that a person in custody on a rendition warrant was not a "person detained in the common jail of any such county, upon any criminal charge," within the meaning of section 27, chapter 460, act of 1847, authorizing a court of oyer and terminer to issue a writ of habeas corpus; and on this ground the certiorari and habeas corpus were 1 14 Alb. L. J. 67; July 29, 1876. 2 Matter of Briscoe, 51 How. Pr. 422; 14 Alb. L. J. 189. |