nugatory the specific provision that fugitives from justice shall be given up, it destroys one of the methods by which the framers of the Constitution sought to "establish justice," -one of the declared general purposes of that instrument. (6) It admits the consideration of the question of criminality, in violation of the Constitution and the act of Congress, which only require that the fugitive shall be duly charged with crime. (7) It enfeebles the administration of justice by rendering it uncertain, in that it substitutes for a rule of law the will or caprice of an individual.1 (8) It permits the authorities of the demanding State to be put upon trial on a charge of bad faith. (9) In opening the way to impeachment of motives and the attribution of dishonesty of purpose, it gives rise to recriminations, creates resentments and fosters ill-will, and thus prevents the realization of that "more perfect Union," which the Constitution was designed to secure. 2 (10) For the reason that it substitutes will for law, admits an inquiry into motives, and puts the demanding authorities on trial, it renders the relations of the States in respect to the delivery up of offenders less intimate and desirable than those of independent and foreign nations bound by treaty.

§ 618. Surrender not obligatory where Fugitive is held on Criminal Charge. The case of Taylor v. Taintor, 3 before the Supreme Court of the United States in 1872, has sometimes been cited to sustain the view that rendition is discretionary. If this had been so, it would have overruled the case of Kentucky v. Denison, which has nevertheless twice been cited as an authority by the Supreme Court 5 since the case of Taylor

delivery up of offenders is in section 2 of the same article, and forms part of the general system.

1 "Every man hath his own particular point of view, and, at different times, sees the same objects in very different lights. The spirit of the laws will then be the result of the good or bad logic of the judge; and this will depend on his good or bad digestion, on the violence of his passions, on the rank or condition of the accused, or on his connections with the judge, and on all those little circumstances which change the appearance of objects in the fluctuating mind of man." Beccaria on Crimes, Ingraham's Translation, 2d ed., p. 23.

2 Supra, § 613.

8 16 Wall. 366, 370.

• Supra, § 613.

5 Ex parte Reggel, 114 U. S. 642 ; 1884. Roberts v. Reilly, 116 U. S. 80: 1835.

". Taintor. It is thought that an examination of what was actually decided in this case will show that it is not an authority for the theory of discretion. The facts are as fol

lows: Taintor, the defendant in error, brought suit as Treasurer of the State of Connecticut against Taylor and other persons on a recognizance into which they had entered for the appearance of one McGuire to answer a criminal charge. After his release on bail McGuire went into the State of New York, where he was arrested on a requisition of the governor of Maine, and surrendered to the authorities of that State on a charge of burglary. When the time came for his trial in Connecticut he was still in custody in Maine on that charge. Taintor thereupon brought suit and obtained judgment upon the recognizance in the superior court of Fairfield county, Connecticut, and this judgment was affirmed by the supreme court of that State. The case was then brought on a writ of error before the Supreme Court of the United States.

The opinion of a majority of the court was delivered by Mr. Justice Swayne, who held that the surrender of McGuire by the governor of New York was not an act of the law which released the suretics in Connecticut. In arguing this point he adverted to the fact that McGuire, if he had remained in Connecticut, would probably not have been given up, being charged with crime in that State, and in this relation said:

"Where a demand is properly made by the governor of one State upon the governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter State have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied. The duty of obedience then arises, and not before. In the case of Troutman, cited supra, the accused was imprisoned in a civil case.1 It was held that he ought not to be delivered up until the imprisonment had legally come to an end. It was said that the Constitution and law refer to fugitives at large, in relation to whom there is no conflict of jurisdiction."

The statement that the duty to surrender is not absolute and unqualified, but depends upon the circumstances of the case, 1 Infra, § 619.

The re

when considered in connection with the facts before the court and the qualification actually laid down, does not affect the general rule that the duty to surrender is absolute. fusal to surrender a person who is under a criminal charge in the State upon which the demand is made is not an exercise of discretion in the usual sense, but merely the assertion of a universal principle wholly consistent with the imperative. provisions of the Constitution. Those provisions, being intended to promote justice, but not to prefer the justice of one State to that of another, should be construed in accordance with that principle. The case of a person held on criminal process in the State in which he is found, and from which his surrender is demanded, should be regarded as casus omissus. It could not have been intended, for example, that a person held in one State on a charge of murder should be delivered over on demand to the authorities of another State on a charge of larceny. It should rather be said that the "discretion" of the governor in such a case consists in the exercise of the power, if he possesses it, to surrender the person demanded, notwithstanding that he is in custody on criminal process. By the Massachusetts statute of 1834 it was provided that if the person demanded was in custody in that State, the governor should issue his warrant at such time as he deemed conducive to justice. This provision was based upon the sound principle that compliance with the demand was not to be refused, but only suspended, so long as the interests of justice, growing out of the detention of the person in Massachusetts, required.

A person held on a rendition warrant cannot object that he has also committed an offence against the laws of the State from which he is ordered to be delivered up, since that State may choose to waive the exercise of its jurisdiction. rule applies where the acts for which the surrender of the fugitive is granted are alleged to involve an offence against the laws of both States. If a person is surrendered while under

This

1 It has been suggested that the proper course in such a case is for the governor to issue his warrant and let the courts detain the prisoner. 13 Am. L. Rev. 238-239.

2 Supra, § 612.

8 Roberts v. Reilly, 116 U. S. 80.

recognizance to answer for an offence in the State in which he is found, it releases his bail.1

- Some of the State

§ 619. Question as to Civil Actions. laws authorize a refusal to surrender when the person demanded is in custody or on bail to answer in a civil action. This is not in accordance with the rule that publicists generally lay down in extradition, 2 or with that applied within a State in case of conflict between criminal and civil actions. The general opinion of writers on the subject is that expressed by the supreme court of California in Ex parte Rosenblat. Rosenblat was arrested on a warrant charging him with being a fugitive from the justice of the State of New York. While held on this warrant, an order was issued for his arrest in a civil suit. The sheriff attempted to serve this order, but the chief of police of San Francisco, who held the prisoner in custody, refused to surrender him. Subsequently the governor of California issued a warrant for his surrender, and the prisoner applied for discharge on habeas corpus on several grounds, one of which was that he could not be delivered up to answer for an offence in New York while an order for his arrest in a civil action was pending in California. The court held that the same principle applied in rendition proceedings between States as in proceedings within the State, and that the interest of the private suitor must yield to the paramount interest of the people of the State. A different rule, however, was laid down by the supreme court of New Jersey in the Matter of Troutman, in 1854. Troutman was in the custody of the sheriff of Monmouth county, New Jersey, on a capias ad respondendum, when a warrant for his rendition was issued by the governor of that State, in compliance with a demand of the governor of Pennsylvania. Troutman was then brought before Potts, J., at chambers, on habeas corpus, in order that he might be discharged from detention on the civil process and delivered up as a fugitive. When, however, he was brought up on the writ of habeas corpus, it was discovered that the agent of Pennsylvania, learn

1 State v. Allen, 2 Humph. 258.

3 51 Cal. 285.

2 Supra, § 370.

44 Zabr. 634.

ing that he was in custody, had declined to demand him, and had withdrawn with the requisition and warrant. There was then really no case before the court; but in view of the fact that counsel at the bar, acting under the authority of the attorney-general of New Jersey, had intimated their dissatisfaction with the conduct of the agent, and an intention to press the requisition and demand for the delivery of the prisoner, Judge Potts stated his views at length, to the effect that "the act of Congress did not contemplate the case of a prisoner in confinement for debt or crime in the State to which he had fled, or one held in the custody of the law in a civil suit or under a criminal charge." He further declared that the general proposition that where criminal and civil proceedings come in conflict the criminal process takes preference, and that the rights of individual suitors are subordinated to the rights of the public, was applicable only within the State or sovereignty itself, and did not reach the question of interstate or national obligations and duties. He observed, however, that if the warrant on the requisition had been served first, the civil process would have been too late.1 The views expressed by Judge Potts on the subject of refusal to surrender where the fugitive is under arrest or in the custody of the law on civil process have been accepted in New York.2 § 620. Revocation of Warrant. The power of a governor

1 Judge Potts said that Governor Fort once issued a warrant to surrender one Smith, on a requisition from the governor of Maryland; but, ascertaining afterwards that Smith was confined in jail in Sussex county, charged with a crime committed in that county, he withdrew the warrant, and informed the executive of Maryland of the circumstances under which it was withdrawn, claiming that the fugitive must first answer to the laws of the jurisdiction which had him in custody, before he should be delivered up to the State from which he fled.

2 Matter of Briscoe, 51 How. Pr. 422. In the case of Ulman, before Mr. Justice Westbrook, it was said "that no law enables a governor of this State to abridge the legal remedies which suitors in its courts are pursuing against a party, and that consequently no duty is imposed upon the court to vacate its own order of arrest, and aid the executive mandate." Commenting on this, the Albany Journal said, editorially: “That the fact of a person being under arrest in a civil action would prevent his return for trial to a State where he was indicted for crime, we doubt. If such should be the case criminals would find an easy shield against the penalty of their acts, and could postpone indefinitely a trial for felony by submitting to the easy confinement of a debtor's prison." 14 Albany L. J. 190.