Application for this writ may be made to a court or judge. When made to a judge, the writ may be taken into the court of which he is judge. Ex parte Clark, 100 U. S. §99. The circuit court was in session, and, although -this writ was issued by the judge, it is taken into that court, and disposed of as by the court. Formerly the view was prevalent that wheu a court had jurisdiction of an offense and prisoner the manner of obtaining possession of the prisoner for trial was not material. In re Miles, 52 Vt. 609, (1875;) U. S. v. Lawrence, 13 Blatchf. 295, (1876.) In U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234, the'supreme court held, that a prisoner surrendered under the treaty of 1842 with Great Britain could not be tried for any other offense till'after reasonable time to depart, on the ground that by general international law “the country receiving an offender against its laws from another country had no right to proceed against him for any other offense than that for which he had been delivered up,” and that the treaty carried out this principle. The slates of the United States are independent governments, and have all the rights of nations, except what have been conferred upon the general government. What was surrendered as to this is set forth in section 2, art. 4, of the constitution of the United States, which provides that—
“A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.”
Here is no giving up of the right under international law as between the states in respect to the crimes for which the person delivered may be tried. The right to demand is conferred, and the duty to deliver is imposed; the rest remains as if settled by treaty between the states as nations. The laws of the United States do no more than to prescribe details for carrying out this provision. Rev. St. U. S. § 5278. These require that the person demanded shall be charged with the crime for which he is wanted by ail indictment found, or an affidavit made before a magistrate, and that a copy certified as authentic shall be produced as a foundation for the demand. If he is held for another crime committed previously, without opportunity to return, this requirement is nullified as to this crime, and he and the executives are deprived unlawfully of this safeguard. In the Case of Hope, Gov. Hill of New York, on full argument, applied this principle to the prisoner, who had been brought on a requisition from California, and revoked a warrant for his removal on demand by the governor of Delaware. 40 Alb. Law J. 441. The same prisoner was immediately arrested on a warrant for another crime
The relator, by the name of John Rice, was in jail in Troy, N. Y., committed without warrant by police officers. The governor of Vermont made requisition on the governor of New York for him for larceny at Bennington, and appointed John Nash agent to receive him. The affidavits of the offense were made before a notary, and not before a magistrate, as required, and the governor of Now York declined to issue a warrant unless they should be properly verified. On being informed of the defects, hut not of this refusal, the relator signed a waiver of — ■
“All demands and defects, if any there be, in the requisition papers now in the hands of officer John Nash, of Bennington, Vt., said requisition papers being issued by the governor of Vermont to the governor of the state of New York, dated Jan. 27th, ’91, for my arrest and surrender to the state of Vermont upon the charge of larceny, and it is hereby agreed that 1 am only taken upon said said charge of larceny, and nothing else, and 1 ask to be taken to Bennington, Vt., at once. ”
A police magistrate directed the officers of the jail to “deliver to officer Nash of Vermont the body ot one John Rice.” The jailor thereupon delivered the relator to Nash, who took him to Bennington. He was released from the charge of larceny on bail, and was immediately arrested for intoxication, and held on that charge without trial until he could be arrested on the charge of forgery in Windsor county, on which he was held when he applied for this writ. The counsel for the state urges with plausibility that he came to this state voluntarily, and not by force of the requisition. The evidence shows that he was given to understand that the defects were formal only, and would be cured if ho did not waive them, and that he did not intend to waive any immunities of the requisition by waiving the defects. The right of the governor of the demanding state rests upon the constitution of the United States. Kentucky v. Dennison, 24 How. 66. The warrant from the governor of the state where the person charged is found is only necessary for saving the peace of that state. The waiver accomplished this, and authorized the agent to receive the relator upon the requisition, which he did. When so received, the laws of the United States empowered the agent to transport the relator to the state of Vermont. Rev. St. U. S. § 5279. Whether the relator came voluntarily or upon the requisition is a question of fact. Upon this question the testimony and circumstances show very clearly that he came by coercion of the requisition, in obedience t.o the authority conferred by it. When brought in this manner, he came clothed with
A question is made whether the federal courts have jurisdiction of this writ in these cases, when the prisoner is in jail under a state warrant. The jurisdiction is saved in that case when he is detained in violation of the constitution or of a law or treaty of the United States. Rev. St. U. S. § 753. The requisition rested altogether upon that constitution, and those laws. The violation of a right implied out of them would be a violation of them. Kentucky v. Dennison, 24 How. 66; Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. Rep. 1148. Suggestion is made that in the exercise of discretion the relator ought to be remanded to seek relief from the state court, and, on failure there, by a writ of error to that court from the supreme court. But the laws of the United States provide that the court or justice or judge to whom application is made shall forthwith award the writ, unless the petition shows that the party is not entitled thereto, (Rev. St. § 755;) and that the party shall be disposed of as lawr and justice require, (section 761;) and that this shall be done without delay, (section 759.) Law and justice, according to the views here taken, require that the relator be discharged from the custody in which he is held for the alleged crime for which he was not brought on requisition until he has had a reasonable opportunity in which to return. The relator insists that reasonable opportunity for return would include the time of the pendency against him of the proceedings on which he was brought, and that his protection should extend till the expiration of a reasonable time in which to return after they are ended. ' But he is not now restrained on that charge, and seems to be entitled only to protection for present return, and one day is deemed reasonable, in view of the facilities available for that purpose.
The relator is discharged, with protection for one day in which to return to the state of New York.