new agent having arrived and received authority to take the prisoner away, Judge Harlan peremptorily refused an application of the prisoner to be admitted to bail for his appearance in Mississippi; and he was remanded into custody and conveyed to that State.1

3. Wrongful Arrest.

§ 602. Criminal cannot set up. It is a general principle that a criminal is not permitted to set up as an answer to the charge against him, the manner in which he was brought

1 I am indebted for information as to the case of Kilrain to Mr. John D. Lindsay, who has communicated to me a copy of a letter of Mr. Charles G. Kerr, State's attorney at Baltimore, of February 10, 1890, on the subject. I may add a letter of Mr. Lindsay of January 21, 1890, on another interesting and important case growing out of the Sullivan-Kilrain prize-fight. The letter is as follows:

“On Wednesday last, Jan. 15, 1890, William Muldoon, James Wakely, Mike Donovan, Mike Cleary, and William E. Harding, in custody of Inspector Byrnes under a warrant of extradition duly granted by Governor Hill on the requisition of the governor of Mississippi, accompanied by the proper papers showing the above-nanied persons to be charged with the crime of aiding and abetting a prize fight in Mississippi, were brought before Recorder Frederick Smyth, presiding justice of the court of general sessions of the peace of the city and county of New York, and a motion was made by Peter Mitchell, Esq., their attorney, to admit the fugitives to bail pending the determination of an application to Governor Hill for a revocation of the warrant. The warrant was in the usual form, and required Inspector Byrnes to arrest the fugitives, and after complying with the provisions of our criminal code to deliver them over to the custody of R. K. Jayne, the duly appointed agent of the State of Mississippi.

"After considering a brief which I submitted in opposition to the motion, Recorder Smyth held that he would not entertain the motion; that under our laws no provision is made for bail under such circumstances, and he accordingly refused to interfere.

"Later in the same day the fugitives were taken before Justice P. Henry Dugro at chambers of the superior court, on a writ of habeas corpus, and the motion was renewed before him. Judge Dugro denied the application for bail, and adjourned the hearing of the writ, on Mr. Mitchell's announcement that he intended to raise objections to the surrender on legal grounds, till Friday morning.

"The next morning, however, there arrived from Albany a new warrant for the arrest and surrender of Muldoon, Cleary, and Donovan, and a revocation of the original warrant. Thereupon the three last named agreed to waive all their legal rights, &c.; the writ of habeas corpus was dismissed by consent; Wakely and Harding were liberated, and the others were taken back to Mississippi by the agent."

within the jurisdiction of the court. A leading case on this subject as between the States is that of State v. Smith,2 before the court of appeals of South Carolina in 1829. The defendant, who was convicted of stealing a slave in South Carolina, was pardoned by the governor of that State on condition that he leave the State and never return. He left, but subsequently returned and remained for some time, until the governor issued a proclamation, stating his return, and offering a reward for his arrest. Hearing this, he fled to North Carolina, where he was unlawfully seized by private persons, brought back to South Carolina and lodged in jail. He applied for his discharge, on the ground, among others, of the illegality of his seizure and return. The court refused to discharge him. The doctrine of this case was applied by the supreme court of Pennsylvania, Gibson, C. J., in Dows' case,3 in 1851. The facts were that Dows, who was charged by indictment with forgery, and by complaint with obtaining money by false pretences, in Alleghany county, Pennsylvania, fled to Michigan. A requisition having been made on the governor of that State, he issued his warrant for Dows' arrest and surrender. Subsequently, however, Dows was seized and taken to Pennsylvania by persons who had no warrant; and he claimed to be discharged because of the defect in the mode of his arrest and return. The court refused to release him. In the State v. Ross & Mann, in 1866, the supreme court of Iowa refused to reverse the sentence of two persons convicted of horse stealing in that State, who claimed that the trial court had no jurisdiction of them, because they were arrested in Missouri and brought into lowa by force and against their will, by persons acting without authority either under a requisition from the governor or otherwise. The doctrine of this case has since been affirmed by the Supreme Court of the United States.5

1 In re Miles, 52 Vt. 609.

8 18 Pa. St. 37.

21 Bailey (S. C.), 283.

21 Iowa, 467.

Mahon v. Justice, 127 U. S. 700; In re Mahon, 34 Fed. Rep. 525. wrongful abduction the remedy of the victim is against his abductors. Williams, 17 B. Mon. 687.

For the

Botts v.

§ 603. Law in Kansas. In State v. Simmons,1 the supreme court of Kansas, in 1888, permitted the method of arrest to be set up against the jurisdiction of the trial court, where the arrest was wrongfully made by an officer of that State. The facts are that the defendants, who were summoned as witnesses in a prosecution for a violation of a liquor law in Kansas, went to Nebraska. When they were called at the trial they did not appear, and an attachment was issued for them and placed in the hands of the sheriff. He went with two assistants into Nebraska, and by threats of force compelled the defendants to come back to Kansas. Subsequently a criminal information was filed against them, charging them with contempt of court in failing to appear and testify. Being under arrest on this information, they applied for a writ of habeas corpus, which the Lincoln district court refused. They were then convicted on the information and sentenced. An application for a new trial was refused, and from this judgment they took an appeal. The question raised was whether the district court had jurisdiction in the case. The supreme court of Kansas held that the arrest was illegal, and that the court below had no jurisdiction. The judgment of the district court was reversed and the defendants discharged. § 604. Executive Request for Return of Person wrongfully It was said by Chief-Justice Gibson in Dows' case, that if the governor of Michigan had demanded the return from Pennsylvania of the person who was held there on a criminal charge after having been abducted from the former State, the courts of Pennsylvania would have been bound to discharge him. This doctrine was applied by Judge Krebs, of the 46th judicial district of Pennsylvania, in 1884, in the case of one Norton, who was decoyed from Canada into New York, and there forcibly seized and transported to Pennsylvania, where he was held on a criminal charge. The persons concerned had previously failed to obtain a requisition from Governor Pattison, of Pennsylvania, on the governor of New York, for Norton's surrender. On December

arrested.

1 39 Kans. 282.

2 Supra, § 594. But see Mahon v. Justice, 127 U. S. 700.

9, 1884, Governor Cleveland, of New York, addressed a letter to Governor Pattison, with accompanying documents, requesting him, if compatible with his "ideas of justice and executive power," to cause Norton's release. Governor Pattison communicated this letter and the accompanying documents to Judge Krebs, in whose district was the county in which Norton was held, with a statement of the facts and a request that Norton be discharged. Upon the receipt of this communication Judge Krebs issued a writ of habeas corpus to the sheriff who held the prisoner in custody, and, after hearing the case and finding the facts alleged as to the kidnapping to be true, ordered him to be discharged. Before the governor of New York intervened, Norton obtained a writ of habeas corpus from the court of common pleas of Clearfield county, Pennsylvania, where he was detained, but was not permitted to show the manner of his arrest and was remanded into custody.1

1 31 Alb. L. J., p. 66 et seq.; Albany Argus, Dec. 25, 1884, and Jan. 6, 1885. I am indebted to ex-Governor Osborn, of Kansas, for his kind offices in obtaining for me a statement, dated July 3, 1890, from the private secretary of the governor of that State, of the following interesting case :—

Early in 1876 the governor of Iowa issued his requisition upon the governor of Kansas for the return to the former State of an alleged criminal, one Harrington, alias Phillips. The usual warrant was issued in Kansas, and Phillips was placed under arrest. Phillips contended that he was not the person desired, and instituted habeas corpus proceedings before the probate judge. Our archives are not supplied with a record of the court proceedings in the case, but it is the recollection of ex-Governor Osborn that the proceedings were dismissed for want of jurisdiction. Application was then made by Phillips to United States District Judge Foster for a writ of habeas corpus, and it was claimed that, while the papers were on their way to Wichita for service, Phillips was surreptitiously taken from the State by the Iowa officers. Thereupon Governor Osborn addressed Governor Kirkwood a letter, of which the following is a copy:

'His Excellency, Samuel J. Kirkwood, Governor of Iowa.

'March 16, 1876.

'SIR, . . . Your attention is respectfully invited to the voluminous papers which, together with this communication, will be presented to you by Mr. Ruggles, one of the counsel for Phillips. Two points seem to be conclusively established: :

'First, That Williams was spirited away from Wichita in the night to avoid the service of a writ of habeas corpus, which it was known had been issued by Judge Foster of the U. S. district court, and had reached the place on the same evening.

'Second, That he was so taken away without any legal warrant whatever, and therefore in violation of the laws of this State. Mr. Davis was alone authorVOL. II. - 11

§ 605. Employment of Stratagem does not render Arrest Illegal. On August 24, 1886, Governor Hill, of New York, rendered a decision in the case of Daniel Brown, for whose surrender a requisition had been made by the governor of Pennsylvania on a charge of perjury. It appeared that Brown had fled to Canada, and while sojourning there was induced by false and fraudulent representations to come into New York, where he was immediately arrested. These representations were made by certain persons who were hired by the complainant in the perjury case to decoy the fugitive from Canada into New York, in order that he might there be arrested. They employed no force, but assumed to engage the fugitive as a peddler, and then, upon pretence that he was going a-peddling, persuaded him to cross the Niagara river with them, representing that it was the "Grand River," and that if he crossed it he would still be in Canada. Governor Hill held that the false representations were no bar to the rendition of the prisoner, who had come voluntarily into New York without force of any kind. Brown was, after his surrender, brought before a Federal court, and was remanded into custody, the court holding that stratagem, not in itself an infraction of law, did not entitle a fugitive from justice to discharge on habeas corpus.1

ized to receive Phillips and convey him from the State. The action of Mr. Scaman in departing with him was wholly unjustifiable.

'If, upon examination, I find that the proceedings taken against Davis in Wichita were so taken merely to defeat the execution of my warrant, I shall do what I lawfully may to cause them to be discontinued, as comity among the States and the ends of justice require that the extradition law shall be enforced in its letter and spirit. At the same time, I trust that your Excellency will consider whether the State of Iowa will deem it consistent with her dignity to retain the custody of an alleged criminal, when it is shown that such custody was secured by a bold infraction of the laws of a neighboring State.

' Commending the bearer to your courtesy, I have the honor to be,

'Yours very respectfully,

THOMAS A. OSBORN.'

"Phillips was returned to this State, where he remained unmolested, but I am unable to find in the archives of the executive department any reply to this communication.