75 Mass. 262 | Mass. | 1857
The several objections made by the attorney general to the justification relied on by the defendant seem to us to be untenable.
1. The precepts issued by the governor of the State of Iowa and by the governor of this commonwealth are in conformity with the act of congress of February 12th 1793, c. 45, § 1, and the provisions of the Rev. Sts. c. 142, § 7. By the recital in the former it appears that the requisition on the governor of this state was made in strict conformity with the act of congress. Being an official precept, issued with all the formalities required by law and regular on its face, "all its recitals are in the absence of controlling proof to be taken as true. It is not therefore open to the government to object that the requisition on the governor of this state was not accompanied by a certified copy of an indictment found on an affidavit as required by the U. S. St. of 1793, § 1. The precept produced by the defendant
2. The warrant in express terms authorized the defendant to “ take ” the fugitive as well as to “ receive, convey and transport him to the line of the Commonwealth.” The word “take” in the sense in which it is used in this precept is synonymous with “ arrest.” It is the technical word used in all writs and precepts by which a sheriff or other officer is commanded to arrest the body, and in this sense it is frequently used in the statutes of this commonwealth. Rev. Sts. c. 90, § 3; c. Ill, § 5; c. 135, § 2. In the same sense it is manifestly used in the Rev. Sts. c. 142, § 7, under which the precept in the present case was issued to the defendant. Nor is there anything in the Constitution or laws of this commonwealth to restrain the power of the governor in giving this authority to the defendant. On the contrary, he is expressly authorized by the Rev. Sts. c. 142, § 7, to issue his warrant authorizing the agent of the State that makes the demand to arrest the fugitive. By the U. S. St. of 1793, he is also empowered to cause the arrest to be made. So that in issuing his precept to the defendant for the arrest of the fugitive, the governor of this commonwealth acted in conformity to the laws both of this state and of. the United States.
3. It is objected, however, that the governor had no authority to issue the warrant to the defendant without the advice and consent of the council. This objection is founded on the phraseology .of the U. S. St. of 1793, which authorizes the “ executive authority ” of a state to demand the surrender of fugitives from justice and to arrest and deliver them up. The argument is that under the Constitution of this commonwealth the executive authority is not vested in the governor alone, but in the governor aided by the advice and consent of the council. But we think this is founded, on too narrow an interpretation of the act of congress. By the term “ executive authority” as there used, nothing more was intended than to prescribe the department of the government to which application should be made for the surrender of fugitives from justice. It was the execu
4. The writ of habeas corpus in no way affected the validity of the precept under which the defendant arrested Wyeth. It was wholly a collateral and independent proceeding, and did not necessarily involve the question of the validity of the extradition of the alleged fugitive, nor would his discharge from custody on the precept held by the deputy sheriff have absolved him from arrest on that held by the defendant. The latter might well be a valid subsisting warrant, although the former had been adjudged informal and void. Exceptions sustained.