§ 606 Irregularities in Rendition no bar to Prosecution. It is a general principle that mere irregularities in proceedings in the delivery of fugitives from justice cannot be set up as a bar to prosecution. Such was the ruling of the supreme court of California in 1889 in the case of Calvin Pratt, who, in the absence of any treaty, was surrendered by Japan to the authorities of California on the request of the governor of that State; the government of the United States refusing, in the absence of a convention, to ask for the extradition directly. But, where a fraud was committed on the governors of both States in a rendition proceeding, the alleged fugitive was discharged on habeas corpus after his surrender, on the ground that it was obtained by fraud.2 1 People v. Pratt, 78 Cal. 345. The court cited Mahon v. Justice, 127 U. S. 712, and Ex parte Ah Men, 77 Cal. 198. 2 State of Tennessee v. Jackson, 36 Fed. Rep. 258. Supra, § 584. In Ex parte Barker, 6 Southern Rep. 7, before Somerville, J., supreme court of Alabama, April 20, 1889, an application was made for a writ of habeas corpus. The petitioner was arrested in Georgia without process. Subsequently he was handed over to the authorities of the State of Alabama ou a warrant of rendition issued by the governor of Georgia, in compliance with a requisition of the governor of Alabama. This requisition was for the offence of grand larceny, but it was based on an affidavit charging that the prisoner "took and carried away," and omitting the word "feloniously." The return to the writ of habeas corpus disclosed that the prisoner was in custody in Alabama by virtue of a capias issued on an indictment charging the larceny for which his return was obtained. This being so, Judge Somerville refused to consider the alleged illegality of the arrest and rendition, the governor of Georgia making no complaint. CHAPTER VI. SURRENDER. 1. Constitutional Duty. § 607. Duty of Rendition made certain by the Constitution. It has been seen that the constitutional provision for the rendition of fugitives from justice is a confirmation of a previously existing practice. In the case of Commonwealth v. Deacon,2 Chief Justice Tilghman said: "The common good of the whole forbids an asylum in one part for crimes committed in another. So, prior to the American revolution, a criminal who fled from one colony, found no protection in another. He was arrested wherever found, and sent for trial to the place where the offence was committed." In his very lucid and forcible decision in the case of State v. Buzine,3 Chief Justice Booth said that the right to recover fugitive criminals as between the States of the Union was not derived from the Constitution, "but existed independently of it;" and he added that the constitutional provision was adopted "to make the arrest and surrender of the criminal, on demand of the executive authority of the State from which he fled, an imperative duty; and not to depend on the discretionary exercise of a right or power." What may be taken as a just and philosophical commentary upon, as well as a prophecy of, the constitutional provision is found in a letter of Madison to Edmund Randolph, dated March 10, 1784, on the defects in the rendition clause in the Articles of Confederation. The governor of South Carolina had demanded the surrender of a citizen of Virginia for an aggravated assault and battery upon a member of the legislature in the former State. The demand was referred to Edmund Randolph, then attorney-general of Virginia, who seems to have given an 1 Supra, § 517. 8 4 Harr. (Del.) 472, 474. 2 10 S. & R. 125. 1 Mad. Writings, 66. opinion adverse to compliance, and to have sent a copy of his opinion to Madison, who wrote upon it as follows: "I have perused with both pleasure and edification your observations on the demand made by the executive of South Carolina of a citizen of this State. If I were to hazard an opinion after yours, it would be that the respect due to the chief magistrate of a Confederate State, enforced as it is by the Articles of Union, requires an admission of the fact as it has been represented. If the representation be judged incomplete or ambiguous, explanations may certainly be called for; and if, on a final view of the charge, Virginia should hold it to be not a casus fœderis, she will be at liberty to withhold her citizen (at least upon that ground), as South Carolina will be to appeal to the tribunal provided for all controversies among the States. Should the law of South Carolina happen to vary from the British law, the most difficult point of discussion, I apprehend, will be whether the terms treason,' &c., are to be referred to those determinate offences so denominated in the latter code, or to all those to which the policy of the several States may annex the same titles and penalties. Much may be urged, I think, both in favor of and against each of these expositions. The two first of those terms, coupled with breach of the peace' are used in the 5th article of the Confederation, but in a way that does not clear the ambiguity. The truth, perhaps, in this as in many other instances, is, that if the compilers of the text had severally declared their meanings, these would have been as diverse as the comments which will be made upon it. "Waiving the doctrine of the Confederation, my present view of the subject would admit few exceptions to the propriety of surrendering fugitive offenders. My reasons are these: 1. By the express terms of the Union, the citizens of every State are naturalized within all the others, and being entitled to the same privileges, may with the more justice be subjected to the same penalties. This circumstance materially distinguishes the citizens of the United States from the subjects of other nations not so incorporated. 2. The analogy of the laws throughout the States, and particularly the uniformity of trial by juries of the vicinage, seem to obviate the capital objections against removal to the State where the offence is charged. In the instance of contiguous States, a removal of the party accused from one to the other must often be a less grievance than what happens within the same State when the place of resi dence and the place where the offence is laid are at distant extremities. The transportation to Great Britain seems to have been reprobated on very different grounds; it would have deprived the accused of the privilege of trial by jury of the vicinage, as well as of the use of his witnesses, and have exposed him to trial in a place where he was not even alleged to have ever made himself obnoxious to it; not to mention the danger of unfairness arising from the circumstances which produced the regulation. 3. Unless citizens of one State transgressing within the pale of another be given up to be punished by the latter, they cannot be punished at all; and it seems to be a common interest of the States that a few hours, or at most a few days, should not be sufficient to gain a sanctuary for the authors of the numerous offences below high misdemeanors.' In a word, experience will show, if I mistake not, that the relative situation of the United States calls for a Droit Public' much more minute than that comprised in the federal articles, and which presupposes much greater mutual confidence and amity among the societies which are to obey it, than the law which has grown out of the transactions and intercourse of jealous and hostile nations." • § 608. Duty Absolute. The sweeping and imperative provision of the Constitution was adopted to give effect to such views as those expressed by Madison. "It makes obligatory," said Chief Justice Green, "upon every member of the confederacy the performance of an act which previously was of doubtful obligation." 1 "The Federal Constitution," said Chief Justice Gibson, "takes away this discretion [in respect to rendition] in the case of an executive demand, and makes that a matter of duty which else had been a matter of grace. Said the court of appeals of South Carolina, in the case of a fugitive from justice: "A question arising under the Constitution is not a question of comity between foreign States, but of positive paramount law between co-States, which all executive, judicial, and ministerial officers must observe and enforce." 3 "2 "The purpose, then,” said Chief Justice Beasley, "of this provision of the Constitution was, as I conceive, two-fold; first, to 1 Matter of Fetter, 3 Zabr. 311. 2 Dows' case, 18 Pa. St. 37. 3 State v. Anderson, 1 Hill, 327. See also Ex parte Swearingen, 13 S. C. 81. ... impose an obligation on each State to surrender criminals fleeing from the justice of another State; and, second, to define clearly the class of criminals to be surrendered. . . I think this end has been attained. For, in the first place, the language of the clause is so plainly imperative in its character as to leave no room for contention that the obligation now imposed on the respective States to surrender criminals, is, in the least degree, a matter of discretion. In the place of spontaneous submission to the law of comity, there is now substituted that implicit obedience which is due to a rule of law. . . . Hitherto the nation has trusted this important office, essential to the harmony of the States and the complete administration of the laws, in the hands of the several local executives; and although these officers, as has just been observed, cannot be coerced to take upon themselves the burthen of such duty, yet, nevertheless, it is with satisfaction that I remark that it has been, for the most part, discharged by them in entire good faith, and with perfect loyalty to the constitutional requisition. The few exceptions which are recollected have, in general, arisen from a mistaken sense as to the true nature of the duty itself; for an idea has undoubtedly prevailed, to a considerable extent, that such duty in some respects was one resting in discretion. But this is altogether an error. If the demand be made in due form, and the requisite documents exhibited, showing that the fugitive is charged with crime, the duty to surrender becomes merely a ministerial one. Under such circumstances, to refuse to authorize the extradition is a clear infraction of the rule prescribed in the constitutional clause above quoted. I think it, therefore, indisputable, that the Constitution has made the surrender of a fugitive from justice, which by the law of nations depended on the concessions of comity, a rule of law of perfect obligation and entirely imperative in its character." 1 Said the supreme court of New York: "The duty of the governor of this State to issue the rendition warrant was imperative. Having performed the quasi judicial function of determining that the act of Congress had been complied with by the governor of Massachusetts, the remaining part of his duty was ministerial only."2 The absolute duty of the 1 Matter of Voorhees, 32 N. J. L. (3 Vroom) 145; 1867. See also Von Holst's Constit. Hist. of U. S., p. 245. 2 People, ex rel., v. Pinkerton, 17 Hun, 199. |