§ 529. Term "person." The term "person" includes all persons, whether citizens of the demanding or of any other State. This construction is believed to have uniformly been given to the term and to have been acted upon, and is so clear and necessary as not to require citation of authority.

§ 530. Term "charged." The term "charged" applies to persons convicted as well as to persons merely sought for the purpose of trial. Where a person is convicted of crime, his sentence of imprisonment can be satisfied only by actual service of his term in prison. Hence, if he escapes, the term ceases to run, and he may, after its nominal expiration, be brought back to serve the unexpired balance of his term.2 On July 10, 1885, Governor Hill of New York rendered a decision in the case of one Carter, for whose rendition a requisition had been made by the governor of Delaware. Carter was convicted of felony in Delaware in 1873, and sentenced to imprisonment for ten years from December 10, 1873, to December 9, 1883. On September 3, 1877, he escaped from prison and fled the State. The question was, whether an escaped convict could be returned to prison and compelled to serve out the remainder of his sentence after the expiration of the period for which he was sentenced. Governor Hill held that he could, and ordered the surrender.3 This decision was affirmed by Governor Hill in the case of James Hope, another Delaware convict, on November 23, 1889, though the fugitive was discharged on other grounds.

1 Opinion of Governor Fairfield, of Maine, 24 Am. Jur. 252.

2 Dolan's Case, 101 Mass. 219; Hallan v. Hopkins, 21 Kan. 638.

3 Governor Hill cited 1 Hale's Pleas of the Crown, 602; 1 Bish. Crim. Proc. 3d ed., §§ 1382-1385; Ex parte Edwards, 3 Crim. Law Mag. ; Clerk v. Com., 31 Gratt. 777; State v. Cockerham, 2 Iredell L. 204; Ex parte Clifford, 29 Ind. 106; Dolan's Case, 101 Mass. 219; Hallan v. Hopkins, 21 Kan. 638.

CHAPTER II.

LEGISLATION.

1. Acts of Congress.

The

§ 531. Constitutional Provision not Self-executing. constitutional provision is not self-executing. It specifies neither the authority upon whom the demand is to be made nor the form of the demand, nor the methods to be pursued in recovering the fugitive. These defects were very soon disclosed in a case that arose between Pennsylvania and Virginia. On June 4, 1791, Governor Mifflin of the former State made an application to the governor of Virginia for the surrender of three men. Accompanying the application were a memorial addressed to Governor Mifflin by the Pennsylvania Society for Promoting the Abolition of Slavery, asking that a demand for the surrender of the fugitives be made, and certificates of the prothonotary of Washington County, Pennsylvania, that the alleged fugitives had been indicted there in November, 1788, for forcibly abducting a free negro, named John, in order to sell him as a slave, in violation of the act of the General Assembly of that State. The reply of the governor of Virginia is dated at Richmond, July 8, 1791, and was from Beverly Randolph, then governor of that State, though by some neglect he omitted to sign it. It inclosed an opinion of James Innis, attorney-general of Virginia, dated June 20, 1791, which the governor approved. The grounds taken in the opinion were that the offence charged did not fall within the constitutional provision. It was not treason or felony, because the indictments stated the taking away of the negro to have been violently, not feloniously. It did not come under the head of " other crimes," which must be such as the State making the demand had exclusive jurisdiction of. There must be a defect in the jurisdiction of which the demand

was made, and an exclusive jurisdiction in the State making the demand. In the present case, the offence by the laws of Virginia would amount, as between the parties, only to a trespass; as between the offenders and the commonwealth, only to a breach of the peace. In the former case, the remedy followed the persons, and there was no defect in the jurisdiction of the courts of Virginia. In the latter case, the offenders might appear by attorney to the indictment. If acquitted, there would be no need to demand them. If convicted, it would then be time to make the demand. It was presumed that in these respects the laws of Pennsylvania were assimilated to those of Virginia. If they were, the offences stated did not appear to come within the Constitution. It was also necessary that there should be proof that the offender had fled to and was within the State on which the demand was made. The letter of Governor Mifflin contained no such proof. But, said the attorney-general, assuming that all these requirements had been satisfied, no method of arrest and surrender had been provided for. Neither the constitution of the State nor of the United States, nor any law made under them, directed the mode, or delegated an authority, by which the magistracy of the State could acquire control of the offender's person. It could, therefore, only be acquired by force, which would be unjustifiable. On July 18, 1791, Governor Mifflin transmitted the correspondence to President Washington, in order that he might invoke the interposition of Congress. In his letter Governor Mifflin said:

"The opinion which the attorney-general of Virginia has given upon this subject, as far as it respects the nature of the offence, is, I conceive, inaccurate, and could not have been given with a previous knowledge of the law of Pennsylvania on the subject."

He then refers to the law, making the offence subject to fine and imprisonment at hard labor, and continues:

"The fact charged, therefore, is a crime, made such by the laws of Pennsylvania; partaking of the nature of a felony, it is certainly included in the constitutional description of treason, felony, or other crime; and, although an action of trespass might be main

tained in Virginia by the injured individual to recover damages for his personal wrongs, yet it is obvious that no indictment, no trial, no conviction, no punishment in the public name, could take place, according to the provisions of our legislature, but under the authority of Pennsylvania, within her jurisdiction, and in the county where the offence was committed. It is equally certain that the laws of the State in which the act is committed must furnish the rule to determine its criminality, and not the laws of the State in which the fugitive from justice happens to be discovered."

§ 532. Opinion of Edmund Randolph - President Washington referred the matter to Edmund Randolph, AttorneyGeneral of the United States, who, on July 20, 1791, made an elaborate report, which is summarized here because of its importance as a contemporaneous construction of the constitutional provision by an eminent legal authority, who, as we have before seen, as attorney-general of Virginia was also called upon to interpret the provision in the Articles of Confederation. Mr. Randolph said that the first requisite was that the person should be charged. This term he said was "sufficiently technical to exclude any wanton or unauthorized accusation from becoming the basis of the demand." It would be applicable to the finding of a bill by a grand jury, and, at least, required some sanction to be given to the suspicion of guilt by a previous investigation. In the case in question a grand jury convened before two justices of the supreme court of Pennsylvania had made it, and should such a procedure as that be declared incompetent as a charge, the object of the article must either be defeated or be truly oppressive. The person, said Mr. Randolph, must also be charged with a crime. He thought the words "or other crime" were not synonymous with felony, and did not necessarily mean offences having the quality of felony. He observed that "crimes, going deep into the public peace, may bear a milder name and consequence; and yet it would be singular to shelter those who were guilty of them, because they were not called and punished as felonies." The next requisite, he said, was that the person charged with a crime 1 Supra, § 519.

must also flee from justice. Some species of proof on this point was indispensable, otherwise the most innocent citizen might be carried in chains from his own State to another. The communication of the governor of Pennsylvania should have been accompanied by the return of a public officer on some process, or an affidavit. It appeared in fact from a recent communication that one of the alleged fugitives had really been taken and committed, and that the other two were not found.

The next requisite, continued Mr. Randolph, was that a person charged with a crime must not only flee from justice, but he must be found in another State. At first it might seem unimportant whether he was so found or not, because, if he were not there, he could sustain no injury from arrest. Yet there might be inconvenience involved, and trouble and expense incurred. Hence it was made a pre-requisite that the culprit shall be found in the State, that is, that some satisfaction be given that the government would not be put upon a frivolous search. In the case under consideration there was no legal exhibit to show that the fugitives had been so found, and from what had been above stated it was presumable that one of them still remained in custody in Pennsylvania. The person charged with crime fleeing from justice and found in another State, was, according to the Constitution, to be delivered up to the State having jurisdiction. And in this relation, said Mr. Randolph, he was compelled to differ from the attorney-general of Virginia on two points. The latter said that "there must be a defect in the jurisdiction of the State from which the demand is made, and an exclusive jurisdiction in the State making the demand; and that the executive of Virginia cannot comply with such a demand, until some additional provisions by law shall enable them to deliver up the offenders." Mr. Randolph said that it was notorious that the crime was cognizable in Pennsylvania only, for crimes were peculiarly of a local nature. Therefore the two conditions were fulfilled; namely, the defect of jurisdiction in Virginia, and an exclusive jurisdiction in Pennsylvania. Mr. Randolph further said: