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No defence that defendant is amenable

545. It is no defence that the defendant is amenable to the asylum state, if no proceedings against him have been there commenced. If, however, there is a prosecution already begun in the asylum state, this takes precedence of the procedure instituted by the demanding state.1

to asylum

state.

Fugitive not privileged from any other

fied charge.

§ 546. In international extradition, a fugitive should be privileged from prosecution while detained in the demanding state for any other charge than that on which he was surrendered. It is an abuse of justice, for inthan speci- stance, to obtain his surrender on one charge, and then try him on another of an entirely distinct class. It is said to be otherwise, however, under the clause in the constitution before us; and it has been held that when a fugitive is transferred from state to state under its provisions, he is open in the latter state to any prosecutions which may be brought bona fide against him in such state. But a court will not permit extradition process to be used oppressively so as to bring a party into the state under a charge made only to subject him to distinct process for which extradition would not be granted.

1 Briscoe, in re, 51 How. Pr. 422; Taylor v. Taintor, 16 Wall. 366; S. C., 36 Conn., 242; Work v. Corrington, 34 Oh. St. 64; and other cases cited Whart. Cr. Pl. and Pr., § 33.

"By the constitution and laws of the United States the governor of Alabama had the right to demand Allen; and the governor of Tennessee had the power to give him up. Indeed, it would have been his imperative duty to have done so, if he had not rendered himself, by the commission of crime, amenable to our criminal laws. This would have justified the governor of Tennessee in detaining him till he had made satisfaction therefor." State v. Allen, 2 Humph. 258.

2 Com. v. Hawes, 13 Bush, 697. Noyes, in re, 17 Alb. L. J. 407;

Ham v. State, 4 Tex. Ap. 645; Sydam v. Senott, 20 Alb. L. J. 230, and other cases cited; Whart. Cr. Pl. Pr. § 37.

Com. v. Hawes, 13 Bush, 697. In Cannon, in re, 47 Mich. 481, it was said by the court: "It was claimed on the argument here, that while that case may have been properly decided as applicable to extradition treaties with other nations, it had no bearing on extradition between states. We do not perceive any ground for the distinction. The duties of one state to another are measured by law, and not by their mere good pleasure; and so are the rights of citizens. The disregard of domestic duties and of foreign duties, should not be considered as different in quality, and where both depend on law it is impos

Governor state canpelled by mandamus

of asylum

not be com

to act.

547. While it is the duty, under the constitution, of the executive of the asylum state to deliver fugitives when the demand is duly backed, yet it has been held that he cannot be compelled by mandamus from Federal courts to deliver. Unquestionably there may be many grounds, in such cases, on which non-compliance may be urged. The object may be to enforce a private debt, or to subserve a political purpose; but the only ground on which the demand, if properly sustained by proof, ought to be refused, is that of the improbability of a fair trial being had if the fugitive be delivered. This ground, however, cannot be set up against a sister state under the guarantee of republican institutions given by the constitution. For a governor to refuse, when a case is properly made out, to surrender a fugitive, is as much nullification as for a governor to refuse to carry out any other duty imposed on him by the constitution.2

sible to find good reason for holding either class of obligations as undeserving of obedience."

In Slade v. Joseph, 5 Daly, 187, and Olery v. Brown, 51 How. N. Y. Pr. 92, it was held that a person indicted in New York, and brought to that state on extradition process, could be arrested in New York on civil process issued by persons who had not been instrumental in procuring his indictment or extradition.

6 Am. Jur. 226; Hurd, Hab. Corp., 619.

In Ex parte Butler, 18 Alb. L. J., p. 369, it was held by the common pleas of Luzerne County, Pennsylvania, that a statute of Pennsylvania providing for an examination for the purpose only of identification of a fugitive from justice, whose rendition is demanded by the governor of another state, and for the issue of a writ of habeas corpus to secure such examination, is not

1 Kentucky v. Dennison, 24 How. invalid under art. 4, § 2, subd. 2, of 66; supra, § 378.

2 See Whart. Crim. Pl. and Pr., § 34; Compton v. Wilder, 7 Am. Law Rec. 212. See, contru, Kimball's Case, 1878, in which the governor of Massachusetts refused to surrender on the grounds that the prosecution had not been prompt, and that the defendant had been asked to turn state's evidence. See Leary's Case, 6 Abbott, N. C. 445; People v. Pinkerton, 77 N. Y. 245; Carroll's Case, Chicago Leg. News, Sept. 28, 1878; Seymour's Case,

the United States constitution. See discussion of this case in 18 Alb. Law J., 466 et seq.; and see 6 Am. Jurist, 226; Lawrence v. Brady, 56 N. Y. 182.

That a governor is bound on due cause shown to surrender, see Romaine, in re, 23 Cal. 582.

That the duty is obligatory, see, further, Taylor v. Taintor, 16 Wall. 370; Com. v. Green, 17 Mass. 515; Re Voorhees, 32 N. J. 141; Re Fetter, 3 Zab. 311; Johnston v. Riley, 13 Ga. 197; Re Briscoe, 51 Howard, Pr. 422;

XXIV. GUARANTY OF REPUBLICAN INSTITUTIONS.

549. The fourth section of the fourth article of the constitution declares it to be a duty of the United States to

That the governor acts judicially, see Re Greenough, 31 Vermont, 279.

State v. Buzine, 4 Harring. 572; Work state, if the requisition is made with v. Carrington, 34 Ohio St. 64. all the requisite formalities, it is his imperative duty to comply without inquiring whether the fugitive has committed a crime according to the laws of the state to which he has fled." Johnston v. Riley, 13 Ga. 97.

"Section 2 of article 4 of the constitution of the United States is a solemn compact between the states, to be enforced by state legislation or by judicial action; and, being a part of the supreme law of the land, it is a part of the law of each state; and state officers, whose duty it is to adjudicate or execute the laws, are governed by it; and state courts of general original jurisdiction, exercising the usual powers of common law courts, are fully competent to hear and determine all matters and issue all necessary writs for the arrest and transfer of fugitive criminals to the authorized agent of the state from which they fled, without any special legislation." Romaine, in re, 23 Cal. 585.

"Public policy, the security of society, and the regular and perfect dispensation of justice, as well as the established maxims of statutory construction, alike require that the term 'crime,' as thus used, should be held to comprehend every violation of the law which is of an indictable nature. It is the right of the sovereignty whose laws have been violated to decide what offences it will pursue, and the state upon which the demand is made cannot rightfully call in question that decision." Voorhees, in re, 3 Vroom, 141. "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 has escaped from the former to the latter

"This provision is in the nature of treaty stipulation between the states, and equally binding on each and all the officers thereof, even in the absence of congressional legislation." Hebler, ex parte, 43 Texas, 197.

Mr. Seward, when governor of New York, on the other hand, declared that "after due consideration, I am of the opinion that the provision applies only to those acts which, if committed within the jurisdiction of the state in which the person accused is found, would be treasonable, felonious, or criminal, by the laws of that state.” Seward's Works, vol. ii. p. 452. Compare, however, Mr. Seward's action as Secretary of State in Arguelles's Case, Whart. Conf. of L., § 83.

"There can be no doubt, however, that if state governors were to defeat the operation of the law by a refusal to act under it, congress would be competent to provide. for the arrest and delivery of fugitive criminals through the agency of Federal officers. The act of 1793 does not exhaust the possible remedies applicable to the case, on the assumption that the subject matter lies within the jurisdiction of congress; and if that act should fail, as it generally has not, then it would be in the discretion of congress to determine what other mode should be adopted to secure the end specified by the constitution." Voorhees, in re, 3 Vroom, 141.

66

does not Guaranty extend to to distribu

suffrage or

tion of

powers.

"guarantee to every state in this Union a republican form of government." The language, it will be observed, is peculiar. The words are not "a republican government," which might imply that the Federal government could step in and control the domestic administration of state affairs so as to make them republican in motive and effect. It is "a republican form of government" that is required; and this is satisfied if the form of the government of a state makes the people, more or less directly, the source of power. The comments of the Federalist on this clause are striking. The words, it is said,' presuppose a pre-existing government of the form that is guaranteed. As long, therefore, as the existing forms are continued by the states, they are guaranteed by the Federal constitution. Whenever the states may choose to substitute other republican forms they have a right to do so, and to claim the Federal guaranty for the latter. The only restriction imposed on them is that they shall not exchange republican for antirepublican institutions." When we recall the variety of the constitutions of the states which composed the Union, we will see the force of these remarks. They agreed only in the acknowledgment of the general rule that executive and legisla ture should be elective, and that there should be no hereditary title to office, whether executive, judicial, or legislative. In other respects they differed. In some suffrage was given to all male inhabitants of full age. In others it was restricted by property tests; in others by educational tests. In some the governor was elected by the people; in others he was elected by the legislature; in some he had a veto, in others he had no veto. In some, voting was viva voce; in others it was by ballot. The legislature was in most states the fountain of power; but as to the mode of electing the legislature there was no agreement. Adjoining states followed totally distinct modes; in Massachusetts, for instance, the representatives were proportioned to the population of the towns; in Rhode Island there had been an arbitrary allotment made which resulted in a disparity of representation as

1 Federalist, No. 43.

great as existed at the same time in England.' In some states the judges held office for life, and constituted a coördinate department of government, assuming to itself the right of determining the constitutionality of laws. In others they were elected by the legislature annually, and if they differed from the legislature, they made way for others more in sympathy with the legislative mind. It is plain, therefore, that the guaranty of "a republican form of government" does not mean a guaranty of any particular form in which a republican government might be framed.

Nor social equality.

§ 550. It is plain, also, that the guaranty does not extend to social equality. In the first place, where there is liberty there can be no equality, since the disparity in the capacity of men is such that if they should all start equal, in a few years some of them would own.much more property than others, and some one of them would obtain an ascendency much more arbitrary and despotic than would exist in a state where the rights of property and of office are acknowledged and fenced in. In the second place, in the states, at the time they united in establishing the constitution, the grossest social disparity existed in the shape of slavery; and the constitution so far recognized this disparity as to provide for the surrender of fugitive slaves. And it is now settled that under the constitution as it stands, even after the incorporation of the fourteenth and fifteenth amendments, the adjustment of social rights is not within the range of congressional power.2

Nor to exemption

§ 551. Nor does the guaranty extend to the perpetuation of the legitimate and regular succession of existing state governments. It could not have done this without denying its own title. The constitution itself was adopted, as we have seen, by a sovereign act of the people of the several states, casting aside, for this purpose, the legitimate mode of amendment provided for by the articles of

from revolution.

See on this topic Mr. Webster's argument on the Rhode Island government, 6 Webster's Works, 229, and

opinion of supreme court of the United
States in Luther v. Borden, 7 How. 1.
2 Infra, §§ 586 et seq.
3 Supra, § 368.

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