was concurred in by all the members of the court, said: "We hold the act to be clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority upon State magistrates, to be free from reasonable doubt and difficulty upon the grounds stated." The constitutional provision does not refer to the Territories of the United States, but the act of 1793 includes the Territories as well as the States. Upon this ground its constitutionality has on several occasions been attacked. In the case of the State v. Loper,1 in 1842, a fugitive was arrested in Georgia on a warrant issued by a justice of the peace on a charge of crime committed in the Territory of Florida. His discharge was sought on habeas corpus on the ground that the Constitution made no provision for the surrender of a fugitive from a Territory, and that the act of 1793, so far as it related to the Territories, was unconstitutional and void. The court declined to decide the question, holding that whatever might be the scope of the constitutional provision and the consequent legislative power of Congress, the arrest and detention of the fugitive were lawful both under the law of nations and the common law of the land. In the Matter of Romaine,2 in California, the court refused to decide whether the constitutional provision applied to fugitives from a Territory, and refused to discharge the prisoner on the ground that the statute of California expressly included such fugitives. In Ex parte Morgan, in 1883, Judge Parker, of the United States district court for the Western District of Arkansas, expressed the opinion that the act of 1793 was constitutional,- not, perhaps, under the rendition clause of the Constitution, but under the clause conferring upon Congress power to regulate the Territories. The difficulty with this reasoning is, that it holds good only as to fugitives from the States to the Territories, or from one Territory to another, and not as to fugitives from the Territories to the States. It seems safer and more philosophical to place the validity of the act upon the obvious spirit and intention of the Constitution; and this 1 2 Ga. Dec. 33. 8 20 Fed. Rep. 298. VOL. II. 3 2 23 Cal. 585. seems to have been the view taken by the Supreme Court in Ex parte Reggel,1 in which it was held that the act must be given the same effect in the case of a fugitive from a State to a Territory, as where the demand is made upon the governor of a State. § 536. Indian Tribes. In Ex parte Morgan2 it was held that the act of 1793 did not authorize compliance with a demand of the principal chief of the Cherokee nation. The court held that the power of the governor of a State to deliver up a fugitive criminal was derived exclusively from the Federal Constitution and the act of Congress passed in pursuance thereof, and that the Cherokee nation was neither a State nor a Territory, and consequently not within the purview of the act. As has been seen, a different view was taken in the case of State v. Loper,3 in which it was held that, assuming the constitutional provision to be insufficient and the act of 1793 invalid, the governor of a State could surrender a fugitive on the demand of the executive of a Territory under the law of nations and the common law. This theory is defended in a criticism of Ex parte Morgan, in the American Law Review, in which it is contended that the governor of Arkansas had the right, outside of the Constitution and the act of Congress, either to expel the fugitive or to deliver him up to the Cherokee nation. These, however, are distinct propositions. The right of expulsion does not include the right to deliver up a fugitive criminal on the demand of a foreign authority, and such in many respects is the chief of an Indian tribe. It was held by the Supreme Court of the United States in New York v. Miln,5 Story, J., dissenting, that an act of the State of New York, which inflicted upon the master of a vessel arriving from a foreign port, who neglected to report to the mayor, or recorder, an account of his passengers, was not a regulation of commerce, but of police, and was not in conflict with the Constitution 1 114 U. S. 642. A general declaration of the constitutionality of the act is found in In re Roberts, 24 Fed. Rep. 132; Roberts v. Reilly, 116 U. S. 80. Supra, § 535. 2 Supra, § 535. 4 Vol. xviii. p. 690. 8 5 11 Pet. 102; 1837. of the United States; and it was said that the States possessed the power to repel from their borders objectionable persons. But it has been held by the Supreme Court that the States do not possess the power to extradite criminals to a foreign country, because it involves an act of intercourse resting exclusively with the general government.1 The power of making treaties with the Indian tribes and of regulating our relations with them generally, is exclusively vested in the Federal government, and it would therefore seem to be forbidden to the States to enter into relations of extradition with them. An examination of the treaties with the Indian tribes discloses that in many of them a stipulation is inserted for the delivery up of offenders who have sought asylum among such tribes. § 537. District of Columbia. By the sixth section of the act of March 3, 1801,2 Congress made special provision for the rendition of criminals taking refuge in the District of Columbia. This provision is now embodied in the Revised Statutes relating to the District of Columbia, as follows: "SECT. 843. In all cases where the laws of the United States provide that fugitives from justice shall be delivered up, the chiefjustice of the supreme court shall cause to be apprehended and delivered up such fugitive from justice who shall be found within the District, in the same manner and under the same regulations as the executive authority of the several States are [sic] required to do by the provisions of sections fifty-two hundred and seventy-eight and fifty-two hundred and seventy-nine, Title LXVI. of the Revised Statutes, Extradition;' and all executive and judicial officers are required to obey the lawful precepts or other process issued for that purpose, and to aid and assist in such delivery." This law does not cover the case of a fugitive from the District. Such a case is covered by section 1014 of the Revised Statutes of the United States. § 538. Offenders against Federal Law. By section 33 of the Judiciary Act of 1789,3 provision was made for the recovery of fugitive offenders against the laws of the United 22 Stat. at L., 115. 1 Supra, § 58. States. With modifications in accordance with section 4 of the act of March 2, 1793,1 and with section 1 of the act of August 22, 1842,2 this provision is reproduced in the Revised Statutes of the United States, as follows: "SECT. 1014. For any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested aud imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case. And where any offender or witness is committed in any district other than that where the offence is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had." § 539. Cases under Section 33 of the Act of 1789; § 1014, Revised Statutes. Several cases have arisen under this law. In United States v. Shepard, in 1870, a motion was made in the United States district court for the eastern district of Michigan to quash an information filed by the district attorney against the defendant. A certified copy of the information was taken to Chicago and the United States district judge for the Northern District of Illinois, on proof of the identity of the accused, but upon no other evidence of probable cause than such copy, indorsed thereon his warrant for the arrest of the defendant, who was arrested and taken to Detroit. The court held that the information was filed without right or authority; that the arrest and holding to bail were unauthorized; and on both 25 Id. 516. 1 Id. 334. 8 1 Abbott's U. S. 431. grounds refused to hold the accused to answer. In regard to the question of the arrest, the court said that had there been any showing for the arrest at Chicago, supported by oath or affirmation, it would not be proper to inquire whether the evidence was sufficient to justify the issuance of the warrant by the district judge in Illinois; but that when it was alleged that there was no case supported by oath or affirmation, and the illegality of the warrant was made the basis of an application to stop all further proceedings, it was the duty of the court to inquire whether the fact was as asserted. In Re Alexander, in 1871, before Judge Lowell in the United States district court for Massachusetts, the district attorney applied for a warrant to send the prisoner to the district of Louisiana for trial on a criminal charge under the laws of the United States. The prisoner had been brought before a commissioner on a complaint, and the only evidence of probable cause was a certified copy of an indictment returned to the United States circuit court for the district of Louisiana. No evidence was offered by the prisoner, and the case was by consent of parties spread upon the records of the court for its decision. Judge Lowell held that while, under the Massachusetts practice, the prisoner could have produced evidence to show why he should not be removed, yet as the indictment stood uncontradicted it was sufficient. And a warrant was accordingly issued. The question whether the indictment is sufficient is not for the judge to whom the application for the order of removal is made.2 By an act of June 17, 1870, Congress established a police court in the District of Columbia to try certain offences without a jury, but provided that an appeal should lie from the police court to the criminal court of the District, in which the case could then be tried by a jury. An information was filed 1 1 Lowell, 530. Judge Lowell said it was not necessary to decide the question whether, when a person had been indicted in one district, the court of that district could issue a warrant to arrest him, wherever found, in the United States. It had been so held by Taney, Attorney-General, 2 Op. 564, and appeared to be still the opinion of that office. 11 Op. 127. 2 In re Clarke, 2 Ben. 540. But see infra. |