conferred upon the judges in the several districts to arrest and imprison persons for offences in other districts, and in such case it is provided that a warrant of removal shall seasonably be issued. But it does not follow from this that the warrant of arrest issued by the justice or judge of the United States in the district where the offence was committed may not run outside of that district. The power of arrest being conferred in general terms, the requirement that a particular thing shall be done in a certain contingency does not necessarily confine the exercise of the power to the method prescribed for that contingency. The opinion of the Acting Attorney-General, Mr. Ashton, in the Oaksmith case, was that the statute contemplated two alternative methods of procedure. It was not, he thought, essential that the defendant should first be arrested and committed in the district where he was found, on a warrant issued in that district, and that a warrant for his removal should then be obtained, as if he were a "fugitive from justice," before he could be brought to answer in the district within which the offence was committed. It is pertinent to observe that there is nothing in the statute to show that it was intended to treat a person who had committed an offence against the laws of the United States as a fugitive from justice because he had passed from one district into another. Such a person is nowhere referred to as a fugitive from justice. It is not provided that he shall be demanded or delivered up as a fugitive from justice, or that he shall be considered as having acquired the special character which results from fleeing from one sovereignty to another. How, indeed, could a person be called a fugitive from the justice of the United States while he remained within their jurisdiction? It is not unreasonable to argue that in providing that, if an offender should be committed in a district other than that in which the offence was to be tried, it should be the duty of the judge of the district where the delinquent was imprisoned to issue a warrant for his removal, it was intended to meet the case of an offender who might escape unless he were arrested and held in advance of process from the trial district.

In this relation it is well to observe the provisions of the law of the United States touching the summoning of witnesses in criminal and in civil cases. By section 33 of the act of 1789, and the provision is substantially repeated in section 1014 of the Revised Statutes, it was provided not only that an offender, but also witnesses, found in another than the trial district, might be arrested, and imprisoned or bailed, and should then seasonably be ordered to be removed. The power to issue subpoenas was not expressly conferred, but by the 14th section of the act of 1789 it was provided that the courts of the United States should have power to issue writs of scire facias, habeas corpus," and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." The power to issue subpoenas was clearly included in this grant, and without any express restriction. In an act approved March 2, 1793, entitled "An Act in addition to the Act entitled An Act to establish the Judicial Courts of the United States," section 6, we find this explicit provision: "That subpoenas for witnesses who may be required to attend a court of the United States, in any district thereof, may run into any other district: Provided, That in civil causes, the witnesses living out of the district in which the court is holden, do not live at a greater distance than one hundred miles from the place of holding the same." 1 This section is repeated in the Revised Statutes.2 It has been held that the act of 1793 enlarged the powers of the courts with respect to the issuance of subpoenas for witnesses in civil causes. The effect of the act in respect to the issuance of subpoenas in criminal cases does not appear to have been decided. But, whatever may have been the effect in such cases, it may seem strange that the power to subpoena witnesses should be more extensive than the power to arrest the offender, bearing in mind also that the power to issue warrants of removal, conferred by the act of 1789, applied to

11 Stat. at L. 335.

2 Section 876.

3 Evans v. Hettick, 3 Wash. C. C. 408, 417. See also Patapsco Ins. Co. v. Southgate, 5 Pet. 604, 617, where the point was referred to, but not decided.

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But no

witnesses as well as the offender. In respect to defendants in civil causes, the 11th section of that act said: person shall be arrested in one district for trial in another, in any civil action before a circuit or district court." And by the 30th section of the act it was provided that where the testimony of a person residing more than a hundred miles from the place of trial should be necessary, his deposition might be taken de bene esse.

It is somewhat remarkable that more than a hundred years after the act was passed which conferred upon the Federal courts the power to issue warrants for the arrest of offenders, it should not have been expressly decided by those courts how far a warrant issued in the trial district may run. The subject would, in view of all the principles involved, appear to be a proper one for specific legislative regulation.

§ 541. Escape of Federal Convict under Sentence. I am indebted to John Ruhm, Esquire, United States district attorney of the middle district of Tennessee, for the following interesting case: In the summer of 1889, one A. A. Stanton, who had been convicted of an offence against the revenue laws, and sentenced to undergo a term of imprisonment in the jail of Williamson County, in that district, escaped from prison and fled to Texas. Upon the application of Mr. Ruhm, Judge Key, of the middle district of Tennessee, issued a capias to the United States marshal of the northern district of Texas, at Dallas, for the fugitive's arrest and return. When the marshal received the capias, he consulted the United States district attorney at Dallas, who advised that he could not execute it, on the ground that, after passing sentence, the power of the trial court over the prisoner ceased, and could not again be exerted save through the medium of a writ of habeas corpus, or some such remedial writ, the execution of the sentence and the place of confinement being matters of executive control, subject to such limitations as were prescribed by statute. He deemed, however, the recitals in the capias as sufficient to justify the making of a complaint de novo, and on a warrant issued by a United States commissioner upon such a complaint Stanton was arrested and com

mitted to await the orders of the Attorney-General. On the 28th of August, 1889, Mr. Ruhm addressed a communication on the subject to the Attorney-General, with a comprehensive argument, which is given below. Prior to this the marshal

1 This argument contains the reasons presented by Mr. Ruhm to Judge Key for the issuance of the capias, and is as follows:

"§ 1014 of the United States Revised Statutes provides for the arrest of an offender against the laws of the United States in a district other than the one in which the offence was committed, and for extradition to the trial district. But this section is confined to the case of those who are charged with crime before they shall have been tried and convicted. They shall be sent to the district

where the trial is to be had.'

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'There is no act of Congress making the escape of a prisoner, convicted by a United States court, an offence; and there is, moreover, no statute expressly authorizing or prescribing the mode of procedure for extradition in cases where a convicted prisoner escapes into another district.

"§ 5409 provides for the punishment of the marshal, deputy, or other person, who voluntarily suffers a prisoner in his custody by virtue of process issued under the laws of the United States to escape.

"By § 5539, a prisoner convicted of an offence against the United States and held in jail or penitentiary of a State shall, in all respects, be subject to the same discipline and treatment as convicts sentenced by the courts of the State, and shall while so confined be exclusively under the control of the officers having charge of the same under the laws of such State.

'§§ 5576 and 5577 (Milliken and Ventrees, 1884), Code of Tennessee, make the escape of a prisoner confined in jail or penitentiary after conviction an offence against the State of Tennessee, and provide for its punishment. (See also § 5575.)

"Now, in the absence of an act of Congress making the escape of a convict an offence against the United States, I do not see how, under § 1014, which alone refers to cases before trial and conviction, Stanton can be arrested upon a warrant de novo in Texas for having escaped from jail in Tennessee after having been convicted by the United States court in Tennessee.

"On the other hand, if § 5539, placing a convicted prisoner 'exclusively under the control of the officers of the State under the laws of the State,' can be construed to mean that when a convicted United States prisoner escapes from jail or penitentiary and flees into another jurisdiction, he will have to be pursued by the State authorities under the extradition laws, we would be met by the anomalous condition that United States courts are powerless in such cases, and that the machinery of requisitions by and to the executives of the respective States would have to be put in motion on behalf of the United States. Of course it may be that this course might be resorted to, because we have noticed that the Tennessee statute makes the escape of a convicted prisoner an offence, and the act of Congress places the prisoner under the exclusive control of the State officers under the laws of the State,' and there is ample provision in the laws of extradition to secure the arrest of a prisoner in that manner. But to merely state the proposition is

of the middle district of Tennessee, by direction of the Attorney-General, sent a deputy to Texas to identify Stanton and bring him back to Tennessee, but the marshal at Dallas refused to deliver him up in the absence of a warrant of removal from the judge of the northern district of Texas. Early in September, 1889, however, the capias was executed. The Texas marshal, to whom it was directed, arrested Stanton upon it, and he was brought back to Tennessee, without any warrant of removal from the Texas court, by the deputy marshal sent to receive him, who returned the capias to the clerk of the court in the middle district.

2. State Legislation.

The power of the

§ 542. Power of States to legislate. States to pass laws supplementary to and in aid of the Constitution and the act of Congress touching fugitives from justice as between the States and Territories is firmly estab

enough to refute the idea that such a course was ever contemplated. It certainly never was considered that the United States courts should depend upon the State authorities where one of their convicted prisoners escapes and flees into another district.

"In the absence of any other legislation, taking my position to be correct that § 1014 does not apply, it would indeed be a troublesome question to deal with. But, upon examination, we find an act of Congress embraced in § 716, U. S. Rev. St., which provides as follows: Courts have power to issue all writs not especially provided for by statute, which may be necessary for the exercise of their respective jurisdiction and agreeably to the usages and principles of law.' I submit that the power to cause the pursuit and capture of escaped convicts is ‘necessary for the exercise of the jurisdiction of the United States courts,' and that the capias directed to be issued in this case was 'agreeably to the usages and principles of law,' there being no other writ or mode of procedure especially provided for by statute.'

"In this connection I would also call attention to In re Oaksmith, 11 Op. Atty.-Gen. 127: Either judge of a Federal court has authority to issue a warrant for the arrest of a criminal, and under such a warrant he may be arrested in any part of the United States.' See also In re Randolph, 2 Atty.-Gen. Op. 564 (Taney, Atty.-Gen.).

"Upon these considerations, and in the absence of any further or other authority or rule of law or practice, I submit that the capias for the arrest of Stanton was properly issued and directed to the marshal in Texas.

"If § 716 should be held not applicable, and if my construction of § 1014 is correct, then indeed this would be a curious casus omissus in legislation."