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discharge him from the custody of the Ida- | visions referred to were based upon the ho agent, and prevent his deportation from theory that, as between the states, the Colorado. Robb v. Connolly, 111 U. S. 624, proper place for the inquiry into the ques639, 28 L. ed. 542, 547, 4 Sup. Ct. Rep. 544; tion of the guilt or innocence of an alleged Ex parte Reggel, supra; Hyatt v. New York, fugitive from justice is in the courts of the 188 U. S. 691, 719, 47 L. ed. 657, 664, 23 state where the offense is charged to have Sup. Ct. Rep. 456; Munsey v. Clough, 196 been committed. The question, therefore, in U. S. 364, 374, 49 L. ed. 515, 517, 25 Sup. the court below, was not whether the acCt. Rep. 282. But it was not shown by cused was guilty or innocent, but whether proof before the governor of Colorado that the Idaho court could properly be prevented the petitioner, alleged in the requisition from proceeding in the trial of that issue, papers to be a fugitive from justice, was not upon proof being made in the circuit court one, nor was the jurisdiction of any court of the United States, sitting in that state, sitting in that state invoked to prevent his that the petitioner was not a fugitive from being taken out of the state and carried to justice, and not liable, in virtue of the ConIdaho. That he had no reasonable opportu- stitution and laws of the United States, to nity to present these facts before being taken arrest in Colorado under the warrant of its from Colorado constitutes no legal reason governor, and carried into Idaho. As the why he should be discharged from the cus- petitioner is within the jurisdiction of Idatody of the Idaho authorities. No obliga- ho, and is held by its authorities for trial, tion was imposed by the Constitution or are the particular methods by which he was laws of the United States upon the agent of brought within her limits at all material in Idaho to so time the arrest of the petition- the proceeding by habeas corpus? er, and so conduct his deportation from Colorado, as to afford him a convenient opportunity, before some judicial tribunal sitting in Colorado, to test the question whether he was a fugitive from justice, and, as such, liable, under the act of Congress, to be conveyed to Idaho for trial there. In England, in the case of one arrested for the purpose of deporting him to another country, it is provided that there shall be no surrender of the accused to the demanding country until after the expiration of a specified time from the arrest, during which period the prisoner has an opportunity to institute habeas corpus proceedings. Extradition Act of 1870, 33 and 34 Vict. chap. 52, § 11; 2 Butler, Treaty-that, in violation of law, he had been seized Making Power, § 436; 1 Moore, Extradition, in Peru, and forcibly brought against his 741, 742. There is no similar act of Congress will into the United States, and delivered to in respect of a person arrested in one of the the authorities of Illinois; all of which the states of the Union as a fugitive from the accused contended was in violation, not only justice of another state. The speediness, of due process of law, as guaranteed by the therefore, with which the Idaho agent re- 14th Amendment, but of the treaty between moved the accused from Colorado, cannot be the United States and Peru, negotiated in urged as a violation of a constitutional right, 1870, and proclaimed in 1874. One of the and constitutes no legal reason for dischar-articles of that treaty bound the contractging him from the custody of the state of Idaho.
It is contended by the state that this question was determined in its favor by the former decisions of this court. This is controverted by the petitioner, and we must therefore, and particularly because of the unusual character of this case and the importance of the questions involved, see what this court has heretofore adjudged.
In Ker v. Illinois, 119 U. S. 436, 30 L. ed. 421, 7 Sup. Ct. Rep. 225, it appeared that at the trial in an Illinois court of a person charged with having committed a crime against the laws of that state, the accused sought, by plea in abatement, to defeat the jurisdiction of the court upon the ground
ing countries, upon a requisition by either country, to deliver up to justice persons who, being accused or convicted of certain named crimes committed within the jurisdiction of the requiring party, should seek an asylum or should be found within the territories of the other, the fact of the commission being so established "as that the laws of the country in which the fugitive or the person so accused shall be found would justify his or her apprehension and commitment for trial if the crime had been there committed." His there committed." 18 Stat. at L. 719, 720. The plea stated, among other things, that the defendant protested against his arrest, and was refused opportunity, from the time of
We come now to inquire whether the petitioner was entitled to his discharge upon making proof in the circuit court of the United States, sitting in Idaho, that he was brought into that state as a fugitive from justice when he was not, in fact, such a fugitive. Of course, it cannot be contended that the circuit court, sitting in Idaho, could rightfully discharge the petitioner upon proof simply that he did not commit the crime of murder charged against him. His guilt or innocence of that charge is within the exclusive jurisdiction of the Idaho state court. The constitutional and statutory pro
his being seized in Peru until he was delivered to the authorities of Illinois, of communicating with any person, or seeking any advice or assistance, in regard to procuring his release by legal process or otherwise.
to demand and insist upon security in such an asylum. The treaty, so far as it regulates the right of asylum at all, is intended to limit this right in the case of one who is proved to be a criminal fleeing from justice, so that, on proper demand and proceedings had therein, the government of the country of the asylum shall deliver him up to the country where the crime was committed. And to this extent, and to this alone, the treaty does regulate or impose a restriction upon the right of the government of the
nal from removal therefrom. . . We think it very clear, therefore, that, in invoking the jurisdiction of this court upon the ground that the prisoner was denied a right conferred upon him by a treaty of the United States, he has failed to establish the existence of any such right."
If Ker, by virtue of the treaty with Peru, and because of his forcible and illegal abduction from that country, did not acquire an exemption from the criminal process of the courts of Illinois, whose laws he had violated, it is difficult to see how Pettibone acquired, by virtue of the Constitution and laws of the United States, an exemption from prosecution by the state of Idaho, which has custody of his person.
The court overruled the plea of abatement, and the trial in the state court proceeded, resulting in a verdict of guilty. The judgment was affirmed by the supreme court of Illinois, and this court affirmed, upon writ of error, the judgment of the latter court. It was held by the unanimous judgment of this court that, so far as any ques-country of the asylum to protect the crimition of Federal right was involved, no error was committed by the state court; and that, notwithstanding the illegal methods pursued in bringing the accused within the jurisdiction of Illinois, his trial in the state court did not involve a violation of the due process clause of the Constitution, nor any article in the treaty with Peru, although the case was a clear one "of kidnapping within the dominion of Peru, without any pretense of authority under the treaty or from the government of the United States." The principle upon which the judgment rested was that, when a criminal is brought, or is in fact within the jurisdiction and custody of a state, charged with a crime against its laws, the state may, so far as the Constitution and laws of the United States are concerned, proceed against him for that crime, and need not inquire as to the particular methods employed to bring him into the state. The case, the court said, "does not stand, when the party is in court, and required to plead to an indictment, as it would have stood upon a writ of habeas corpus in California, or in any state through which he was carried in the progress of this extradition, to test the authority by which he was held." In meeting the contention that the accused Ker, by virtue of the treaty with Peru, acquired by his residence a right of asylum, this court said: "There is no language in this treaty, or in any other treaty made by this country on the subject of extradition, of which we are aware, which says in terms that a party fleeing from the United States to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled; indeed, the absurdity of such a proposition would at once prevent the making of a treaty of that kind. . . . It is idle, therefore, to claim that, either by express terms or by implication, there is given to a fugitive from justice in one of these countries any right to remain and reside in the other; and if the right of asylum means anything, it must mean this. The right of the government of Peru voluntarily to give a party in Ker's condition an asylum in that country is quite a different thing from the right in him
An instructive case on this subject is Mahon v. Justice, 127 U. S. 700, 32 L. ed. 283, 8 Sup. Ct. Rep. 1204. The governor of Kentucky made a requisition upon the governor of West Virginia for Mahon, who was charged with the crime of murder in Kentucky, and was alleged to have fled from its jurisdiction and taken refuge in West Virginia. While the two governors were in correspondence on the subject, a body of armed men, without warrant or other legal process, arrested Mahon in West Virginia, and by force and against his will conveyed him out of West Virginia, and delivered him to the jailer of Pike county, Kentucky, in the courts of which he stood indicted for murder. Thereupon the governor of West Virginia, on behalf of that state, applied to the district court of the United States for the Kentucky dictrict for a writ of habeas corpus and his return to the jurisdiction of West Virginia. This court, after observing that the states of the Union were not absolutely sovereign, and could not declare war or authorize reprisals on other states, and that their ability to prevent the forcible abduction of persons from their territory consists solely in their power to punish all violations of their criminal laws committed within it, whether by their own citizens or by citizens of other states, said: "If such violators have escaped from the jurisdiction of the state invaded, their surrender can be secured upon proper demand on the execu
can be turned over to the authorities of another, though abducted from the latter. If there were any such comity, its enforcement would not be a matter within the jurisdiction of the courts of the United States. By comity nothing more is meant than that courtesy on the part of one state, by which within her territory the laws of another state are recognized and enforced, or another state is assisted in the execution of her laws. From its nature the courts of the United States cannot compel its exercise when it is refused; it is admissible only upon the consent of the state, and when consistent with her own interests and policy. Bank of Augusta v. Earle, 13 Pet. 519, 589, 10 L. ed. 274, 308; Story, Confl. Laws, § 30. The only question, therefore, presented for our determination, is whether a person indicted for a felony in one state, forcibly abducted from another state, and brought to the state where he was indicted, by parties acting without warrant or authority of law, is entitled, under the Constitution or laws of the United States, to release from detention under the indictment by reason of such forcible and unlawful abduction.”
tive of the state to which they have fled. I dictment for a criminal offense in one state The surrender of the fugitives in such cases to the state whose laws have been violated is the only aid provided by the laws of the United States for the punishment of depredations and violence committed in one state by intruders and lawless bands from another state. The offenses committed by such parties are against the state; and the laws of the United States merely provide the means by which their presence can be secured in case they have fled from its justice. No mode is provided by which a person unlawfully abducted from one state to another can be restored to the state from which he was taken, if held upon any process of law for offenses against the state to which he has been carried. If not thus held he can, like any other person wrongfully deprived of his liberty, obtain his release on habeas corpus. Whether Congress might not provide for the compulsory restoration to the state of parties wrongfully abducted from its territory upon application of the parties, or of the state, and whether such provision would not greatly tend to the public peace along the borders of the several states, are not matters for present consideration. It is sufficient now that no means for such redress through the courts of the United States have as yet been provided. The abduction of Mahon by Phillips and his aids was made, as appears from the return of the respondent to the writ, and from the findings of the court below, without any warrant or authority from the governor of West Virginia. It is true that Phillips was appointed by the governor of Kentucky as agent of the state to receive Mahon upon his surrender on the requisition; but no surrender having been made, the arrest of Mahon and his abduction from the state were lawless and indefensible acts, for which Phillips and his aids may justly be punished under the laws of West Virginia. The process emanating from the governor of Kentucky furnished no ground for charging any complicity on the part of that state in the wrong done to the state of West Virginia." Again: "It is true, also, that the accused had the right, while in West Virginia, of insisting that he should not be surrendered to the governor of Kentucky by the governor of West Vrginia, except in pursuance of the acts of Congress, and that he was entitled to release from any arrest in that state not made in accordance with them; but, having been subsequently arrested in Kentucky under the writs issued on the indictments against him, the question is not as to the validity of the proceeding in West Virginia, but as to the legality of his detention in Kentucky. There is no comity between the states by which a person held upon an in
After a review of the authorities, including the case of Ker v. Illinois, above cited, the court concluded: "So, in this case, it is contended that, because, under the Constitution and laws of the United States, a fugitive from justice from one state to another can be surrendered to the state where the crime was committed, upon proper proceedings taken, he has the right of asylum in the state to which he has fled, unless removed in conformity with such proceedings, and that this right can be enforced in the courts of the United States. But the plain answer to this contention is, that the laws of the United States do not recognize any such right of asylum, as is here claimed on the part of a fugitive from justice in any state to state to which he has fled; nor have they, as already stated, made any provision for the return of parties who, by violence and without lawful authority, have been abducted from a state. There is, therefore, no authority in the courts of the United States to act upon any such alleged right. In Ker v. Illinois, the court said that the question of how far the forcible seizure of the defendant in another country, and his conveyance by violence, force, or fraud to this country could be made available to resist trial in the state court for the offense charged upon him, was one which it did not feel called upon to decide, for in that transaction it did not see that the Constitution, or laws, or treaties of the United States guaranteed to him any protection. So
in this case we say that, whatever effect | in criminal cases involving the public intermay be given by the state court to the il- ests. legal mode in which the defendant was brought from another state, no right secured under the Constitution or laws of the United States was violated by his arrest in Kentucky, and imprisonment there, upon the indictments found against him for murder in that state."
To the above citations we may add Re Moore, 75 Fed. 821, in which it appeared or was alleged that one accused of crime against the laws of a state, and in the custody of its authorities for trial, was brought back from another state as a fugitive from justice by means of an extradition warrant These principles determine the present procured by false affidavits. In his applicacase and require an affirmance of the judg- tion to the circuit court of the United States ment of the circuit court. It is true, the for a writ of habeas corpus the petition decision in the 'Mahon Case was by a divided stated facts and circumstances tending to court, but its authority is none the less con- show that he was not a fugitive from justice. trolling. The principle upon which it rests The application was dismissed. After stathas been several times recognized and re- ing that the executive warrant issued by affirmed by this court, and is no longer to be the surrendering state had performed its questioned. It was held in Cook v. Hart, office, and that the petitioner was not held. 146 U. S. 183, 192, 36 L. ed. 934, 939, 13 in virtue of it, the court said: "His imSup. Ct. Rep. 40, that the cases of Ker v. prisonment is not illegal unless his extradiIllinois and Mahon v. Justice established tion makes it so, and an illegal extradition is these propositions: "1. That this court will no greater violation of his rights of person not interfere to relieve persons who have than his forcible abduction. If a forcible been arrested and taken by violence from the abduction from another state and conveyterritory of one state to that of another, ance within the jurisdiction of the court where they are held under process legally is- holding him is no objection to his detention sued from the courts of the latter state. 2. and trial for the offense charged, as held in That the question of the applicability of this Mahon v. Justice, 127 U. S. 712, 32 L. ed. doctrine to a particular case is as much 287, 8 Sup. Ct. Rep. 1204, and in Ker v. Illiwithin the province of a state court, as a nois, 119 U. S. 437, 30 L. ed. 421, 7 Sup. Ct. question of common law or of the law of na- Rep. 225, no more is the objection allowed if tions, as it is of the courts of the United the abduction has been accomplished under States;" in Lascelles v. Georgia, 148 U. S. the forms of law. The conclusion is the 537, 543, 37 L. ed. 549, 551, 13 Sup. Ct. Rep. same in each case. The act complained of 687, that it was settled in the Ker and does not relate to the restraint from which Mahon Cases that, "except in the case of a the petitioner seeks to be relieved, but to fugitive surrendered by a foreign govern- the means by which he was brought within ment, there is nothing in the Constitution, the jurisdiction of the court under whose treaties, or laws of the United States which process he is held. It is settled that a party exempts an offender, brought before the is not excused from answering to the state courts of a state for an offense against its whose laws he has violated because violence laws, from trial and punishment, has been done him in bringing him within though brought from another state by un- the state. Moreover, if any injury was done lawful violence, or by abuse of legal proc- in this case in issuing the requisition upon ess;" and in Adams v. New York, 192 U. the state of Washington without grounds S. 585, 596, 48 L. ed. 575, 579, 24 Sup. Ct. therefor, the injury was not to the petitionRep. 372 (the same cases being referred to), er, but to that state whose jurisdiction was that "if a person is brought within the ju-imposed upon by what was done. The United risdiction of one state from another, or from a foreign country, by the unlawful use of force, which would render the officer liable to a civil action, or in a criminal proceeding, because of the forcible abduction, such fact would not prevent the trial of the person thus abducted in the state wherein he had committed an offense." See also Re Johnson, 167 U. S. 120, 127, 42 L. ed. 103, 105, 17 Sup. Ct. Rep. 735, in which the court recognized the principle that when a party in a civil suit has, by some trick or device, been brought within the jurisdiction of a court, he may have the process served upon him set aside; but that a different rule prevails
States do not recognize any right of asylum in the state where a party charged with a crime committed in another state is found, nor have they made any provision for the return of parties who, by violence and without lawful authority, have been abducted from a state, and, whatever effect may be given by a state court to the illegal mode in which a defendant is brought from another state, no right secured under the Constitution and laws of the United States is violated by his arrest and imprisonment for crimes committed in the state into which he is brought. Mahon v. Justice, 127 U. S. 715, 32 L. ed. 288, 8 Sup. Ct. Rep. 1204.”
The principle announced in the Mahon and
other cases above cited was not a new one. I chievous consequences, involving the personIt has been distinctly recognized in the al safety of individuals within the limits of courts of England and in many states of the the respective states, the remedy is with Union. In Ex parte Scott (1829) 9 Barn. & the lawmaking department of the governC. 446, one accused of crime against the ment. Congress has long been informed by laws of England, and who was in custody for judicial decisions as to the state of the law trial, sought to be discharged upon habeas cor- upon this general subject. pus because she had been improperly apprehended in a foreign country. Lord Tenterden, Ch. J., said: "The question, therefore, is this: Whether, if a person charged with a crime is found in this country, it is the duty of the court to take care that such a party shall be amenable to justice, or whether we are to consider the circumstances under which she was brought here. I thought, and still continue to think, that we cannot inquire into them. If the act complained of were done against the law of the foreign country, that country might have vindicated its own law. If it gave her a right of action she may sue upon it." Some of the American cases, to the same general effect, are cited in Mahon v. Justice, namely: State v. Smith, 1 Bailey, 283, 19 Am. Dec. 679; State v. Brewster, 7 Vt. 118; State v. Ross, 21 Iowa, 467. See also Dow's Case, 18 Pa. 37; State v. Kealy, 89 Iowa, 94, 97, 56 N. W. 283; Ex parte Barker, 87 Ala. 4, 8, 13 Am. St. Rep. 17, 6 So. 7; People v. Pratt, 78 Cal. 345, 349, 20 Pac. 731; Church, Habeas Corpus, § 483, and authorities cited in notes, and note to Re Fetter, 57 Am. Dec. 389, 400.
In this connection it may be well to say that we have not overlooked the allegation that the governor and other officers of Idaho well knew at the time the requisition was made upon the governor of Colorado, that Pettibone was not in Idaho on December 30th, 1905, nor at any time near that date, and had the purpose in all they did to evade the constitutional and statutory provisions relating to fugitives from justice. To say nothing of the impropriety of any such facts being made the subject of judicial inquiry in a Federal court, the issue thus attempted to be presented was wholly immaterial. Even were it conceded, for the purposes of this case, that the governor of Idaho wrongfully issued his requisition, and that the governor of Colorado erred in honoring it and in issuing his warrant of arrest, the vital fact remains that Pettibone is held by Idaho in actual custody for trial under an indictment charging him with crime against its laws, and he seeks the aid of the circuit court to relieve him from custody, so that he may leave that state and thereby defeat the prosecution against him without a trial. In the present case it is not necessary to go It is said that the present case is distin- behind the indictment and inquire as to how guishable from the Mahon Case in the fact it happened that he came within reach of the that the illegal abduction complained of in the process of the Idaho court in which the the latter was by persons who neither acted indictment is pending. And any investigation nor assumed to act under the authority of as to the motives which induced the action the state into the custody of whose authori- taken by the governors of Idaho and Coloties they delivered Mahon; whereas, in this rado would, as already suggested, be imcase, it is alleged that Idaho secured the proper as well as irrelevant to the real quespresence of Pettibone within its limits tion to be now determined. It must be through a conspiracy on the part of its conclusively presumed that those officers governor and other officers. This difference proceeded throughout this affair with no evil in the cases is not, we think, of any conse-purpose and with no other motive than to quence as to the principle involved; for the enforce the law. question now is-and such was the fundamental question in Mahon's Case-whether a circuit court of the United States when asked, upon habeas corpus, to discharge a person held in actual custody by a state for I am constrained to dissent from the trial in one of its courts under an indictment opinion and judgment of the court. The charging a crime against its laws, can prop- principle announced, as I understand it, is erly take into account the methods whereby that "a circuit court of the United States, the state obtained such custody. That ques- when asked upon habeas corpus, to distion was determined in the negative in the charge a person held in actual custody by a Ker and Mahon Cases. It was there ad-state for trial in one of its courts under an judged that in such a case neither the Con- | stitution nor laws of the United States entitled the person so held to be discharged from custody and allowed to depart from the state. If, as suggested, the application of these principles may be attended by mis
We perceive no error in the action of the Circuit Court, and its final order is affirmed.
Mr. Justice McKenna, dissenting:
indictment charging a crime against its laws, cannot properly take into account the methods whereby the state obtained such custody." In other words, and to illuminate the principle by the light of the facts in this case (facts, I mean, as alleged, and which