where they were, upon due inquiry by the officers of justice,
my conclusion would have been wholly different. But I believe
a man may, by long years of good conduct, and by showing
himself to the world without concealment, outlive the char-
acter of a fugitive from justice, more particularly where the
ministers of justice charged with his apprehension practically
abandon the charge against him for nearly half the period of
human life. * * *
"Believing, then, that neither positive law nor any consid-
erations founded upon justice require the surrender of the men,
I must respectfully refuse to comply with the requisition of
the Governor of Pennsylvania. The warrant heretofore issued
is revoked and Gaffigan and Merrick ordered to be discharged.
S. M. Cullom, Governor."
The words used in the Constitution of the United States
are "treason, felony, or other crime." Two offenses are par-
ticularly named by their common law titles, treason and felony.
If the word crime is used in the Constitution in the same
EXTRADITABLE CRIMES. 9 1
meaning that attaches to it in criminal courts and in all crimi-
nal practice, ancient and modern, State and national, there is
certainly no difficulty in determining what the word includes.
Every infraction of the law that is punishable or indictable is a
crime. It reaches as far in heinousness and gravity as felony
and down to the smallest misdemeanor. It has been contended,
however, that the word crime in the Constitution has a more
restricted meaning. In 1 790 the Attorney-General of Virginia
advised the Governor of the State, Randolph, not to extradite
three fugitives from the justice of Pennsylvania, who were de-
manded by Governor Mifflin of that State, giving as a reason
that the phrase "or other crime" found in the Constitution has
"reference only to crimes similar in character to treason and
felony, and that the act charged must be a crime in that sense,
under the laws of the State upon which this demand is made,"
and that the offense charged in this case was not a crime of
this kind by the laws of Virginia, "but only a trespass or
breach of the peace."
In 1839 Governor Seward, of New York, refused to deliver
Up to the State of Virginia three persons who were demanded
of him by the Governor of Virginia, charged by affidavit with
having feloniously stolen and taken away a negro slave, the
property of one, Colley. The grounds for his refusal were
that in his opinion the constitutional "provision applies only
to those acts which, if committed in the jurisdiction of the
State in which the person accused is found, would be treason-
able, felonious, or criminal by the laws of that State." The
act charged was a crime in Virginia, but not in New York.
Subsequently Governor Dennison, of Ohio, upon substan-
tially the same grounds, refused to extradite one, Willis L,ago^
a fugitive from the justice of Kentucky, charged with having
assisted a slave to escape from her owner, which was a crime
in Kentucky, but not in Ohio.
92 HOW TO PROCEED.
Opinion of the U. S. Supreme Court. This case was car-
ried to the Supreme Court of the United States, the State of
Kentucky asking the court to issue a writ of mandamus ad-
dressed to the Governor of Ohio, commanding him to comply
with the requisition of the Governor of Kentucky for the de-
livery of this fugitive from justice. The court declined to
grant the writ, holding that "if the Governor of Ohio refuses
to discharge this duty, there is no power delegated to the gen-
eral government, either through the judicial department or any
other department, to use any coercive means to compel him."
It will be observed that the Supreme Court did not refuse
the writ because they thought Governor Dennison was right,
but because they had no power to compel him to act in the
matter. This is a stronger deliverance from the Supreme
Court than the one previously quoted from Tailor vs. Taintor
as to the finality of the Governor's action in cases of re-
quisitions upon him. He can not be compelled even to do his
duty. A gross violation of duty in this respect could only
be reached by impeachment, and that would not undo his act.
In stating the opinion of the court in the above mandamus
suit, Kentucky vs. Dennison, Chief Justice Taney gave a clear
and elaborate exposition of the constitution relating to Inter-
State extradition, and the language is so strong as to show the
opinion of the court clearly to be that Governor Dennison was
wrong, that Governor Seward of New York was wrong, and
that the Attorney-General of Virginia was wrong in his ad-
vice to Governor Randolph, as early as 1790. We quote
from Chief Justice Taney's opinion:
" Looking at the language of the clause, it is difficult to
Comprehend how any doubt could have arisen as to its mean-
ing and construction. The words ' treason, felony, or other
crime,' in their plain and obvious import, as well as in their
legal and tehnical sense, embrace every act forbidden and made
EXTRADITABLE CRIMES. 93
punishable by the law of the State. The word ' crime ' of
itself includes every offense, from the highest to the lowest in
the grade of offenses, and includes what are called ' misde-
meanors,' as well as treason and felony."
In another connection in the same opinion the Chief Jus-
tice remarks :
" Looking, therefore, to the words of the Constitution to
the obvious policy and necessity of this provision to preserve
harmo.iy between States, and order and law within their re-
spective borders, and to its early adoption by the colonies,
and then by the Confederated States, whose mutual interest it
was to give each other aid and support whenever it was needed
the conclusion is irresistible that this compact engrafted in
the Constitution included, and was intended to include, every
offense made punishable by the law of the State in which it
was committed, and that it gives the right to the executive
authority of the State to demand the fugitive from the execu-
tive authority of the State in which he is found ; that the right
given to demand implies that it is an absolute right ; and it
follows that there must be a correlative obligation to deliver,
without any reference to the character of the crime charged,
or to the policy or laws of the State to which the fugitive has
The State Courts. This construction of the meaning of
the Constitution has been adopted by decisions in nearly all
the States in proceedings on habeas corpus.
The opinion of the Supreme Court of New York, delivered
by Chief Justice Savage, in The Matter of Clark, will be found
in 9 Wend. 212. The court say : " The language is ' treason,
felony, or other crime.' The word ' crime ' is synonymous
with the word ' misdemeanor,' 4 B/ackstone's Com., 5, and in-
cludes even- offense below felony punishable by indictment as
an offense against the public."
94 HOW TO PROCEED.
The Court of Appeals, of New York, in The People, ex.
re/. Lawrence vs. Brady, 56 N. Y. 182, said: "The word
1 crime ' in the clause of the Constitution, which has been
quoted, embraces every act forbidden and made punishable hy
the law of a State, and the right to demand the surrender of
fugitives from justice extends to all cases of the violation of
its criminal law. * * * The obligation to sur-
render for an act which is made criminal by the law of the de-
manding State, but which is not criminal in the State upon
which the demand is made, is the same as if the alleged act
was a crime by the law of both."
The Supreme Court of Massachusetts, in Brown's Case, 112
Mass., 409, said : " The words of the provision of the Consti-
tution and laws of the United States, and of the statutes of
this Commonwealth, the history of those provisions, and the
judicial expositions of them, conclusively establish that the
authority of the Governor of this Commonwealth to order the
delivery of fugitives from the justice of another State in the
Union extends to a person appearing to be charged with any
crime whatever in the State."
The Supreme Court of Indiana, in Morton vs. Skinner, 48
Ind., 123, holds that a misdemeanor is an extraditable offense.
The Supreme Court of North Carolina, in The Matter of
Hughes, Phill. L., 57, held that " the constitutional require-
ment for the surrender of fugitives from justice applies to
those charged with statutory as well as common law crimes."
The Supreme Court of Georgia declared in Johnston vs.
Riley, 13 Ga., 97, that "when the Governor of a State makes
a requisition, under the Constitution of the United States, on
the Governor of another State, for the return of a fugitive
from justice, who had escaped from the former to the latter
State, if the requisition is made with all requisite formalities,
it is his imperative duty to comply, without inquiring whether
EXTRADITABLE CRIMES. 95
the fugitive has committed a crime according to the laws of
the State to which he fled."
In 24, American Jurist, 226, we find the opinion of the
Supreme Court of Maine, delivered as early as 1837, at the re-
quest of the Governor of the State. It is as follows : " In our
opinion it is the duty of the executive of this State to cause
to be delivered over to the agent of another State, at the re-
quest of the executive thereof, a citizen of this State, charged
by indictment with the fraud before set forth, which, being in-
dicted in such State, may be presumed to be there regarded as a
crime, if the executive of this State is satisfied that such citi-
zen has fled from justice from the State making the demand,
and not otherwise."
The Supreme Court of Vermont, in the case of In re
Greenough, 31 Vt., 279, in which Greenough had obtained
money under false pretense in Illinois, and his extradition from
Vermont was resisted upon the ground that the words of the
Constitution " or other crime " should be confined to crimes of
great atrocity, used the following language : " This provision
in the Constitution and laws of Congress has received a prac-
tical, uniform construction from Maine to Georgia, from an
early day in our judicial history, if, indeed, it can be said to
admit of construction. It has also been the subject matter of
repeated judicial determination, and he must, I think, be a bold
man, who at the present day is ready to hold that the subject
matter of the complaint against Greenough is not within the
Constitution and laws of Congress. The language is broad,
and the crime charged is within its letter, and, I apprehend,
equally within the reason and spirit of the provision."
In the old Articles of Confederation the words used were
" treason, felony, or high misdemeanor." " High misde-
meanor " is a term of vague import and there is no doubt that
the words " or other crime " were substituted in framing the
96 how to proceed.
Constitution both for the purpose of making the language en-
tirely definite, and also to make extraditable every .species of
misdemeanor punishable by indictment, whether it be common
law or statutory crime.
The above opinions of the Supreme Court of the United
States, and of the various State courts, which might be sup-
plemented by many others of the same tenor, settle beyond
dispute two legal propositions : i . The words of the Constitu-
tion and act of Congress, " treason, felony, or other crime," in-
clude all crimes, whether common law crimes or made so by
statutory enactment, whether felony or a petty misdemeanor.
2. That it is immaterial whether the offense charged be a crime
in the State to which the person has fled, and from which he
is demanded, or not, so long as it is an indictable offense in the
State in which it was committed.
Petty Misdemeanors. It is not probable that the labor of
inter-State extradition will ever become burdensome on ac-
count of the fact that minor offenses are extraditable, because,
in the first place, a person who has committed a petty offense
will very seldom flee from his home to avoid the consequences:
and, secondly, if he should flee, the State would rarely, if ever,
pursue him into another State for so small an infraction of its
statutory law. Still, it must be admitted, that if a person
should flee from a petty misdemeanor into another State, and
the authorities should pursue him in regular form, and accord-
ing to law, the obligation of the State to which he fled to sur-
render him would be just as great as though his crime were a
The Flight from Justice. Before dismissing the subject of
inter-State extradition we desire to add a few observations on
two or three collateral points. We have already stated that
one of the constitutional pre-requisites to the extradition of a
person from one State to another, is that he be a fugitive from
THE FLIGHT FROM JUSTICE. 97
justice. It often becomes the most important question to be
decided in a case, whether the person charged with a crime is
a fugitive from justice. Governor Cullom's decision, previously
quoted, turned on this point. The language of the Constitu-
tion covering this point is, " who shall flee from justice, and be
found in another State" The act of Congress says that
" whenever the executive authority of any State or Territory
demands any person as a fugitive from justice, of the executive
authority of any State or Territory to which such person has
fled" etc. There must be a fleeing from one State and a find-
ing in the other, the presence there being the result of the
fleeing. The conjunction connecting the two parts is copula-
tive. Both are necessary. If the language were " who shall
flee from justice or be found in another State," the' conditions
would be different, either fact would suffice for his extradition.
Fleeing implies bodily locomotion. It is a movement in
the exercise of the person's own will, of his own choice. His
removal from one State to another by force or by legal process
would not constitute a fleeing from justice on his part. The
fleeing must be his own voluntary act.
His voluntary motion from one State to another, however,
is still not enough to make him a fugitive. His motive must
be to escape justice, or to avoid the punishment of crime by.
placing his person where the same liability does not exist. Not
every person who goes from one State to another, of his own
free will, and is found there, is a fugitive. He must go there
to avoid punishment for crime.
In view of this fact, it is proper that some evidence be
taken by both the executives as to the fact of the fleeing, first
by the Governor making the requisition, and by him presented
to the Governor to whom he addresses the requisition. This
evidence must be legal, not hearsay. It must be under oath
and must be sufficient to make out a prima facie case of flight.
98 HOW TO PROCEED.
This is parti}- the object of the affidavits presented to the Gov-
ernor. It is not sufficient for the Governor to know that the
person is charged with crime; he must also know that he is a
fugitive as well as a criminal, before he is authorized to issue
his requisition. The decisions on this point are conclusive
and from the best authorities.
The fact that a party charged with crime in one State is
found in another raises the presumption that he is a fugitive,
but it is not conclusive. If this presumption were conclusive
"a person might be arrested in any State, and surrendered to
another for trial on the mere showing that in the latter State
an indictment had been found, or a complaint made in due
form against him. By this means one might be punished for
constructive presence and participation in an offense committed,
if at all, at a great distance, as was actually attempted in the
noted case of the Mormon prophet Smith, who was arrested as
a fugitive from a State where he had never been, and was or-
dered to be surrendered for trial for offenses against laws to
which he had never been subject. Such a construction would
be intolerable."/?^/^ Cooley in Princeton Review, /any.,
1879, p, 164.
Difficult Questions. A man in Indiana near the Eastern
line of the State shot and killed a man standing beyond the
line and in the State of Ohio. The murderer did not flee, but
simply remained in the State of Indiana. Can he be extradited
into Ohio as a "fugitive from justice?"
A person in Kentucky sent an infernal machine by express
to a person in Georgia which exploded and killed the receiver
when he attempted to open it. Is the Governor of Kentucky
under obligation to issue his warrant for the arrest and re-
moval of this person to Georgia as a fugitive from justice?
A man in Maine sends a deadly poison to an innocent per-
son in New York, by mail, with written instructions to give
DIFFICULT QUESTIONS. 99
it to a sick friend as it will effect his cure. The poison is given
and death ensues. Can the murderer in Maine be extradited?
A merchant in Topeka, Kansas, obtains a bill of goods from
a house in Chicago, Illinois, by false and fraudulent represen-
tations. Can he be taken to Chicago for trial?
It has been claimed by some that the criminal, in cases
similar to those given above, while not actually and personally
in the State where the effect of his act took place, was never-
theless constructively present and hence was constructively a
fugitive from justice. The question has been much discussed
in the courts and the decisions have not been uniform. The
question is, where is the crime committed? In and against
the jurisdiction where the offender actually was at the time of
the criminal action, or in and against the jurisdiction where
the action was completed, the two jurisdictions being different?
We will not go into the discussion of this question. There
is only one clear way over all difficulties, and that is to con-
sider that the crime is committed at the place where the of-
fender actually was at the time of his action ; then if he does
not flee he can be punished there, and if he does he becomes a
fugitive and can be extradited without raising any of the diffi-
cult questions stated above. As a matter of fact, however, the
Constitution contains no provision for the extradition of a
criminal who was not present in the State where he is as-
sumed to have committed the crime, and who has not actually
fled from the justice of the State. There is no such thing as
a constructive fugitive. It is futile to inquire whether the
framers of the Constitution thought of such a case. If they
did they failed to provide for it. We consider that there can
be but one answer to the above questions. The persons
could not be extradited into the States where their action took
effect, according to the Constitution and law, because they
were not fugitives from the justice of those States.
IOO HOW TO PROCEED.
Another Case. Johnson, living in Nebraska, committed a
larceny and fled from the State into Missouri. While in Mis-
souri he secretly committed murder, and was not at the time
suspected of the crime. L,ater the Nebraska authorities located
him in Missouri and brought him back upon requisition. He
was tried in Nebraska for the larceny and acquitted. He then
remained there and took up his residence. Soon after this it
was discovered that he committed the murder in Missouri.
The Governor of Missouri demanded his delivery on the basis
of an indictment for murder. What will be the result?
There is no question of the first element; he is charged
with a crime in Missouri. He is also found in Nebraska, an-
other State. But is he a fugitive from justice? He did not
flee from Missouri. He was forcibly taken away by process of
law and against his will. Being acquitted of the crime charged
in Nebraska he decides to remain there, as he has a right to do.
Is he under obligation to go back to Missouri and then run
away in order to make himself a fugitive? Surely not. ,What
can be done? Nothing, as long as the Constitution of the
United States is in its present form. Removing him by force,
under the circumstances, no matter how strong or perfect the
extradition papers were made, would be nothing short of of-
The Agent's Powers and Duties. The Constitution says
nothing about an agent. The act of Congress assumes the
power of the executive to appoint an agent and direct the
delivery to be made "to such agent when he shall appear."
This legalizes the appointment of an agent. Governors
always appoint an agent. He is entrusted with all the papers,
including his own commission. The only limitations are two,
one relating to the time within which the agent must arrive
to receive the fugitive, which is six months, when he may be
discharged if the agent do not appear. The other is as to the
DIFFICULT QUESTIONS. IOI
expense of the extradition, which must be paid by the agent
for the State making the demand.
Section 5279, Revised Statutes of the United States, reads:
"Any agent so appointed, who receives the fugitive into his
custody, shall be empowered to transport him to the State or
Territory from which he fled. And any person who, by force,
sets at liberty or rescues the fugitive from such agent while sp
transporting him, shall be fined not more than five hundred
dollars, or imprisoned not more than one year."
The agent under this law has the powers of a Sheriff or
Marshal. Though appointed by the Governor of a State he is
nevertheless acting under the authority of the United States
The agent is not only protected from persons who would
rescue his prisoner by force, but no court has authority to in-
terfere and discharge the prisoner after he has received him
and given his receipt.
Only one case of this kind has ever come up for judication
in this country, so far as we know, and in that the above point
was an incident rather than the main feature. It is the case of
In re Burke. The following were the facts:
One Samuel Frank was charged by Leopold Bros. & Co.,
of Chicago, 111., of obtaining goods from them by false pretense
and fleeing from the State into the State of Minnesota. A
requisition was issued and James H. Burke appointed agent to
receive him. The Governor of Minnesota issued his warrant.
Frank was arrested and surrendered to Burke. He started
with the prisoner, but in passing through the State of Wiscon-
sin, on his direct route to Chicago, Frank in some way, at St.
Croix, secured an attorney and applying for a writ of habeas
corpus was released. Frank returned to Minnesota and
Burke also went back and re-arrested him in St. Paul. Frank
was released on a writ of habeas corpus in the county court,
102 HOW TO PROCEED.
and immediately had Burke arrested for false arrest and im-
prisonment. Burke applied to Judge Nelson of the District
Court of the United States for the District of Minnesota for a
writ of habeas corpus. The Judge granted the writ, and, upon
the hearing, released him. The only part of his decision per-
tinent to this question is his remarks upon the action of the
court of St. Croix, Wis., in interfering with the agent, Burke,
while passing through the State with his prisoner. We select
a few sentences from his decision:
"If the prerequisites of the law of 1793 were complied with,
and the warrant of the executive of the State to which the
fugitive has fled is issued on the requisition of the executive of
the demanding State, accompanied by a copy of an affidavit,
charging a crime, under the laws of the latter, certified as
authentic by the executive, and an arrest is made and delivery
to the agent of the demanding State, then the person so ar-
rested is legally restrained of his liberty and may be removed
to the State having jurisdiction of the crime. A discharge of
the person under the writ of habeas corpus, by a judge of any
court, whether State or Federal, would be coram non judice,
"This presents the question whether the judge of St. Croix
County exceeded his jurisdiction under the writ of habeas cor-
pus, and his discharge of Frank is a nullity? I think this action
of the State court of Wisconsin is the first reported instance of
any interference by the judiciary of a State through whose ter-
ritory the fugitive from justice is being transported, after the
concurrent action of the two States alone interested in the
transaction. * * *
"The first section of the fourth article of the Constitution
provides that full faith and credit shall be given to the public
acts, records and judicial proceedings of every other State,"
p4-p 5fC *T* *t*
REVOKING THE WARRANT. 103
"The papers presented on his return to the writ of habeas
corpus before the State court of Wisconsin, and now by the pe-