Thе second section of article four in the United States Constitution, provides that a person charged in any State with treason, felony or other crime, who shall flee from justice, and be found in any other 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. The law of Congress, passed in 1793, provides for can-ying out this provision in the constitution. When the executive authority of a State shall demand a fugitive from justice, of the executive authority of the State to which the fugitive shall have fled, it becomes thе duty of the executive authority of the latter State to surrender up the fugitive, that he may be carried back for trial, provided the requisition shall be accompanied with a copy of a bill of indictment found, or an affidavit, chan’ging the person
In Clark’s case,
No case has been cited in the argument in which it was held that the subject matter of the chargе against Greenough was not within the constitution and law of Congress, and I am aware of no adjudged case to that effect.
We are not called upon to lay down any general rules as to what particular crimes will come within the constitution, and what will not, and we deem it unwise and a work of supererоgation to attempt it. It is far better to let each case be decided as it shall arise. It is quite possible that the general term, “ or other crime,” in the constitution, should be limited by the words which precede it, so to include only crimes of a similar genus to those which may be denominated felonies, and no one can fail to see that the obtaining of goods by false pretences is a crime nеarly allied to theft, and can hardly be regarded as less base, and even in many instances the distinction between them is very subtle. This provision in the constitution relative to fugitives from justice was wisely made a part of the original compact between the States, and it is in the nature of a treaty stipulation, аnd is eminently calculated to promote harmony and good feeling between them. The well working of our national government is intimately connected with this provision, and its just and salutary execution.
While on the one hand the liberty of the subject should be scrupulously guarded, and all his rights held sacred, yet on the other, we should not forget that it is abhorent to a proper administration of criminal justice and to the security and welfare of
No question has been made as to the regularity of the papers accompanying thе requisition of the executive of Illinois, or of their due authentication. The bill was found by a grand jury of the recorders court in the city of Chicago, and is exemplified according to the law of Congress. We have also an exemplified copy of the statute of Illinois, and the affidavit of A. M. Crane, duly authenticated, showing that Greonough is in fact a fugitive from justice from Illinois, and these papers with the executive’s requisition were all filed in the executive department of the government of this State, and accompany the executive’s warrant for the arrest and surrender of Greenough, and are referrеd to and made a part of the return upon the habeas corpus.
It has been claimed in argument that the facts charged in this indictment do not constitute the offence of obtaining goods by false pretences under the statute of Illinois. If this objection was one which went to show that the executive of this State had no jurisdiction to issue his warrant in this particular case, it might with some propriety be claimed that the whole proceeding was coram non juclice, and the imprisonment illegal. But it has been held, and for one, I think the view a sound one, that if the warrant is duly issued, the court, upon habeas corpus, can go behind it, only so far as to entertain a question as to the identity of the alleged fugitive, and sо it was held in the case of the State v. Buzine,
The executive, in one sense acts ministerially in issuing his warrant, in another judicially. So far as it is his duty to see that the case is a proper one for issuing his warrant, the character of his acts is strictly judicial. In re Prime,
But we think the executive had something more than a colorable authority for issuing his warrant, and that the subject matter of this indictment was not only colorable, but was really such as to bring the case within the law of Congress, that not only the crime, as created by the Illinois statute, of obtaining property
But suppose the rule to be, that the representation must be calculated to deceive persons of ordinary prudence, it would not alter the result of our argument. It would then be a question of fact ftp? the inquiry of a jury under the circumstances of each particular case. It may in truth be said that every false assertion is not a false pretence, but if it requires something to be done, by the application of tests or otherwise, to ascertain whether the representation is false, it then becomes a false pretence. See Rex v. Ball, 2 Russ. on Crimes 289. In this case, it was matter of experiment whether the ingredients specified in the
We apprehend the representation made by Greenough did constitute a false pretence within the statute in analogy to repeated decisions. A carrier pretended he had carried certain goods to a consignee, and thereupon demanded and received of the consignor his pay for the carriage, and this was held to be a case within the statute, Rex v. Coleman, 2 East. P. C. 672. See the cases collected in Archibald C. P. 347-8 and 2 Russ. on Crimes 286, sec. 2; People v. Kendall,
But suppose for argument sake, we admit it to be fairly a debatable point, whether this indictment states a case within the Illinois statute or not, would that have the effect to render the warrant of the executive void f If so, it must be upon the ground that it showed a want of jurisdiction in the executivе to issue his process, and this, I think, no one can well claim. To claim this
On the whole, a majority of the court are clearly of the opinion that Greenough is not illegally restrained of his liberty, and he is therefore remanded into the custody of the agent appointed by the executive of Illinois to receive him, that he may be taken to that State and there dealt with according to law.