Statement of the Case.

(2) That the question of the applicability of this doctrine to a particu

lar case is as much within the province of a state court, as a question of common law or of the law of nations, as it is of the courts of the United States.

Ex parte Royall, 117 U. S. 241, and Ex parte Fonda, 117 U. S. 516, adhered to as to the point that where a person is in custody under process from a state court of original jurisdiction for an alleged offence against the laws of that State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, a Circuit Court of the United States has a discretion whether it will discharge him in advance of his trial in the court in which he is indicted, which discretion will be subordinated to any special circumstances requiring immediate action. The exercise of the power to issue writs of habeas corpus to a state court proceeding in disregard of rights secured by the Constitution and laws of the United States, before the question has been raised or determined in the state court, is one which ought not to be encouraged. In this case the court affirms the judgment of the Circuit Court refusing to discharge on writ of habeas corpus a prisoner who had been surrendered by the Governor of Illinois on the requisition of the Governor of Wisconsin as a fugitive from justice, but who claimed not to have been such a fugitive, it appearing that the case was still pending in the courts of the State of Wisconsin, and had not been tried upon its merits; and this court further held,

(1) That no defect of jurisdiction was waived by submitting to a trial on the merits;

(2) That comity demanded that the state courts should be appealed to in the first instance;

(3) That a denial of his rights there would not impair his remedy in the Federal Courts;

(4) That no special circumstances existed here such as were referred to in Ex parte Royall, 117 U. S. 241.

THIS was an appeal from an order of the Circuit Court for the Eastern District of Wisconsin discharging a writ of habeas corpus, and remanding the petitioner Charles E. Cook to the custody of the sheriff of Dodge County, Wisconsin. The facts of the case were substantially as follows:

On March 9, 1891, the governor of Wisconsin made a requisition upon the governor of Illinois for the apprehension and delivery of Cook, who was charged with a violation of section 4541 of the laws of Wisconsin, which provides that "any officer, director, or agent of any bank, or of any person, company, or corporation, engaged in whole or in part in banking, brokerage,

manager,

Statement of the Case.

or any person engaged in such business in whole or in part, who shall accept or receive on deposit or for safe keeping, or to loan, from any person, any money . . for safe keeping or for collection, when he knows or has good reason to know, that such bank, company or corporation, or that such person is unsafe or insolvent, shall be punished," etc. Rev. Stat. Wis. § 4541. The affidavits annexed to the requisition tended to show that the petitioner Cook and one Frank Leake, in May, 1889, opened a banking office at Juneau, in the county of Dodge, styled the "Bank of Juneau," and entered upon and engaged in a general banking business, with a pretended capital of $10,000 and continued in such business, soliciting and receiving deposits up to and including June 20, 1890, when the bank closed its doors; that during all this time Cook had the general supervision of the business, and was the principal owner of the bank, and all business was transacted by him personally, or by his direction by one Richardson, acting as his agent; that Cook frequently visited the bank, and well knew its condition; that from January 6 to June 20, 1890, Cook, by the inducements and pretences held out by the bank, received deposits from the citizens of that county to the amount of $25,000; that this was done by the express order and direction of Cook, and such amount appeared upon the books of the bank at the time it failed as due to its depositors; that Cook, while receiving these deposits, drew out of the bank all of its pretended capital stock, if any were ever put in, and also all the deposits, except the sum of $5048 in money and securities, which was in the bank at the time it closed; that on June 23, 1890, Cook and Leake assigned their property for the benefit of their creditors; that on the sixth of January, 1890, and from that time onward, Cook knew and had good reason to know that both he and Leake and the bank were each and all of them unsafe and insolvent; that on June 20, 1890, at about four o'clock in the afternoon, the said Cook and Leake accepted and received a deposit in said bank from one Herman Becker, to the amount of $175 in money; and that said deposit was received by direction and order of the said Cook, he knowing that said bank was unsafe and insolvent. There

Statement of the Case.

was also annexed a complaint setting forth substantially the same facts, and a warrant issued by a justice of the peace for Dodge County for the apprehension of Cook. Upon the production of this requisition, with the documents so attached, the governor of Illinois issued his warrant for the arrest and delivery of Cook to the defendant, as agent of the executive authority of the State of Wisconsin. Cook was arrested by the sheriff of Cook County, Illinois, and on the same day, and while still in the custody of the sheriff, procured a writ of habeas corpus from the Circuit Court of Cook County to test the legality of his arrest. That court on June 6, 1891, decided that the arrest was legal, remanded Cook to the custody of the sheriff, and he was thereupon delivered to the defendant as executive agent, and conveyed to Wisconsin, where he was examined before the magistrate issuing the warrant, and held to answer the charge. During the September term of the Circuit Court of that county an information was filed against him, charging him with the offence set out in the original complaint. Upon his application the trial was continued to the term of said court beginning in February, 1892. He appeared and was arraigned at that term, pleaded not guilty, and the trial was begun, when and during the pendency of such trial, Cook sued out a writ of habeas corpus from the Circuit Court of the United States, claiming that his extradition from Illinois to Wisconsin, was in violation of the Constitution and laws of the United States. It was established upon the hearing, to the satisfaction of the court below, that Cook for some years prior to the 20th day of June, 1890, and for some years prior to his arrest upon the warrant of the executive of Illinois, had been and still was a resident of the city of Chicago; that he made occasional visits to Wisconsin in connection with his banking business at Juneau and elsewhere; that he left Chicago on June 17, 1890, and went to Hartford, in the county of Washington, State of Wisconsin, where he spent the whole of the 18th day of June, proceeding thence to Beaver Dam, in the county of Dodge, where he was engaged during the whole of the 19th day of June with business not connected with the Bank of Juneau; that early in the morn

Argument for Appellant.

ing of June 20 he left Beaver Dam, and made a continuous journey to Chicago, arriving there at 2 o'clock in the afternoon; and that he did not, on the occasion of that visit to Wisconsin, visit or pass through the village of Juneau, and had not been there for some three weeks prior to the closing of the bank on June 20. It was also conceded at the hearing that the particular deposit by Herman Becker, charged in the complaint upon which the requisition proceedings were had, was actually made at 4 o'clock in the afternoon of June 20, and after the petitioner's arrival in Chicago.

Upon the hearing of the writ of habeas corpus, the petitioner was remanded to the custody of the defendant, (49 Fed. Rep. 833,) and thereupon he appealed to this court.

Mr. Solicitor General for appellant.

I. The petitioner was not at the time of the commission of the alleged offence, the suing out of the requisition, and his arrest and rendition thereunder, a fugitive from justice.

It is conceded that he was not in Wisconsin at the time when the deposit of Herman Becker was received, but in the State of Illinois, the State of his citizenship. "To be a fugitive from justice in the sense of the act of Congress regulating the subject under consideration, it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a State committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offence, he has left its jurisdiction and is found within the territory of another." Roberts v. Reilly, 116 U. S. 80, 97.

This court also held that the fugitive was entitled under the act of Congress, "to insist upon proof that he was within the demanding State at the time he is alleged to have committed the crime charged, and subsequently withdrew from her jurisdiction so that he could not be reached by her criminal process." Ex parte Reggel, 114 U. S. 642, 651.

Argument for Appellant.

It was held in the following cases that actual personal presence in the demanding State at or after the commission of the crime is essential to make one a "fugitive from justice:" Ex parte Joseph Smith, 3 McLean, 121; Jones v. Leonard, 50 Iowa, 106; Wilcox v. Nolze, 34 Ohio State, 520; In re Mohr, 73 Alabama, 503; Tennessee v. Jackson, 36 Fed. Rep. 258; Hartman v. Aveline, 63 Indiana, 344.

II. Unless a fugitive from justice, such arrest and detention was without jurisdiction, unauthorized and void, and contrary to the rights guaranteed the petitioner under the Constitution of the United States, and he should be released by this court on habeas corpus.

The Supreme Court of the United States recognizes that this is a personal right, and not alone a right of the State where the accused is found. Ex parte Reggel, 114 U. S. 642, 651. See also United States v. Rauscher, 119 U. S. 407; Holmes v. Jennison, 14 Pet. 540; People v. Curtis, 50 N. Y.

321.

The result of all the authorities is that there can be no extradition or interstate rendition, except as authorized by the Constitution and laws of the United States. The States can do nothing except under that authority, and the citizen or the fugitive is exempt, unless his conduct has brought him within its terms.

No one would claim that the Governor of Illinois could send any citizen of that State, demanded by the Governor of Wisconsin, to the latter State for trial. On the other hand, if such action can only be taken under the conditions prescribed by the Constitution and by the laws of the United States, a case not within those conditions is beyond the jurisdiction of the governors. It requires no argument to demonstrate that it is not in conformity with our laws or the spirit of our Constitution to permit the citizen's liberty to be thus invaded and him to be taken to a foreign State, because a ministerial officer, on ex parte affidavits, has decided these jurisdictional facts against him (which has not been done in this case, the warrant simply reciting that he, Cook, is "represented to be a fugitive from justice").