34 F. 525 | E.D. Ky. | 1888
(orally, after stating the facts as above.) The question presented to the court under this writ of habeas carpus is much narrower than the discussion of counsel would indicate. It is now settled that the courts of the United States recognize the treaty obligation between the United States and other nations in regard to the extradition of fugitives from justice. In a recent case, the supreme court recognized the provisions in regard to extradition, in the treaty known as the “Ash-burton Treaty” between the United States and Great Britain, and decided that a person extradited under that treaty could only be tried for the crime for which be had been extradited. This was not because of the comity which should exist as between nations, nor because the law of nations would have been violated, but because of the terms of the treaty, and the act of congress made to carry out treaty obligations in the matter of extradition of fugitives from justice. U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234. It is also settled that there is not a personal right of asylum in a refugee, who has fled from this country, being charged with crime, to a foreign country. Thus, if there be no treaty authorizing extradition, or if the fugitive from justice is not brought back from a foreign country under and according to the provisions of the treaty, if there be one, then the courts will not allow the fugitive to plead the mode oí his capture and return to this country as an answer to his crime or in abatement to the indictment against him. Ker V. Illinois, 119 U. S. 437; 7 Sup. Ct. Rep. 225; 110 Ill. 630; State v. Brewster, 7 Vt. 118.
As lo a person charged with crime in one of the states of this Union, and who has fled to another state, there is some difference in the reasoning of the courts; but I think all of the American authorities concur in the
The right to extradite a refugee, who is charged with crime in one state and has fled to another state of this Union, is governed by the second section, art. 4, Const., which provides:
“A person charged in any state with treason, felony, or other cfimes, who who'shall flee from justice, and be found in another state shall, on demand of the executive authority of the state from which he has fled, be delivered up to be removed to the state having jurisdiction of the crime. ”
Congress has enacted laws to carry out this provision of the constitution-, and it is settled that both state and federal courts may, under a writ of habeas corpus, revise the action of the governor of a state upon whom a requisition is made if he acts, and has the refugee arrested, ,to see that the constitution and the act of congress have been complied with. The courts, however, cannot, by any process known to the law, compel a governor upon such a requisition, to act and have the refugee arrested and delivered over. Kentucky v. Dennison, 24 How. 66. It is claimed that the petitioner is detained in violation of the constitution of ihe-United States, and this court should discharge him. And it is argued that the only process by which he could have been extradited was the process provided by the constitution of the,United States, and the laws made thereunder, and that in this case this-process has been invoked in so- fai’ ;as to give this court jurisdiction to revise the action taken under it." It is quite clear,-as will be seen from the statement of facts already -read,: that there Was no. action taken by the authorities of West Virginia
This brings us to consider the other proposition, which is that since the adoption of the fourteenth amendment to tho constitution of the United States neither a resident or citizen of one state having been charged with crime in another state, and having fled therefrom, can be extradited from that state, except by the due process of law which is provided in lire federal constitution; and the laws made thereunder, and unless he is thus extradited, he is within the protection of that amendment. It is true, I think, that the only legal mode of arresting a refugee from justice under such circumstances is under and according to the constitution of the United States, and the laws made thereunder, and such state laws as may he constitutionally made in aid thereof. This being true, it may bo insisted that due process of law, as required by that amendment, when a refugee from justice has fled from the state where he is charged with crime to another state, is — First, the mode of extradition as provided by the federal constitution, and the laws thereunder; second, after he is returned éo the state from which he has fled, his arrest under and in accordance with the regular and lawful process of that state. Hence, as he was not extradited according to or under the process provided by tho constitution and laws, but by force and against his will, he is now deprived of bis liberty by the slate of Kentucky without duo process of law within tho meaning of this amendment. That amendment declares, among other declarations that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law.” It will be observed that this is not a grant to the citizen resident, or sojourner, as an individual, of any right which he did' not theretofore have, but it is a limitation upon the power of the states, put in the federal constitution. It is not a declaration of what privileges or immunities citizens of the United States are entitled to, but is a declaration that no state of the Union shall abridge them. The previous part of the section which declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,” created a national citizenship, but does
The next inquiry is, has the state of Kentucky deprived him of his liberty without due process of law, within the meaning of this amendment. The petitioner had been indicted by a grand jury for willful murder, and was arrested in this state under and by the usual and regular process which has existed in this state from time immemorial for the arrest of persons indicted for crime by a grand jury. He is held by due process of law, if the inhibition of the fourteenth amendment is to be limited to the process of the state which deprives him of his liberty. If, however, the phrase “due process of law,” is to include the means by which others brought him into this state, then it is not due process of law. Clearly, the prohibition is upon “any state,” and we think the