In re Mahon
(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 whiсh 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,
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, cannоt, 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,
This brings us to considеr 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 suсh 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 оf 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 withоut 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 privilegеs 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 citizеns 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 рetitioner 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 аmendment 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