compelled by the courts. Continuing he held that the clause in question by the use of the words "treason, felony or other crime," properly included every act forbidden and made punishable by a State, and did not leave to the governor of a State to which a fugitive from justice might flee, the right to refuse to surrender him upon the ground that the act in question was not one made punishable by the law of the State of which he was the chief executive. "The argument on behalf of the governor of Ohio," said Taney, "which insists upon excluding from this clause new offenses created by a statute of the State and growing out of its local institutions, and which are not admitted to be offenses in the State where the fugitive is found, nor so regarded by the general usage of civilized nations, would render the clause useless for any practical purpose. For where can the line of division be drawn with anything like certainty? Who is to mark it? The governor of the demanding State would probably draw one line, and the governor of the other State another. And if they differed, who is to decide between them? Under such a vague and indefinite construction, the article would not be a bond of peace and union, but a constant source of controversy and irritating discussion. It would have been far better to omit it altogether, and to have left it to the comity of the States, and their own sense of their respective interests, than to have inserted it as conferring a right and yet defining that right so loosely as to make it a never failing subject of dispute and ill will." Also, he de clared, it is certain that the words "it shall be the duty" when employed in the ordinary acts of legislation, imply an assertion of the right to command and coerce obedience. "But," said Taney, "looking to the subject-matter of this law, and the relations which the United States and the several States bear to each other, the court is of opinion the words 'it shall be the duty' were not used as mandatory and compulsory, but as declaratory of the moral duty which this command created, when Congress had provided the mode of carrying it into execution. The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of

the executive of the State; nor is there any clause or provision in the Constitution which arms the government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. And we think it clear that the Federal Government, under the Constitution, has no power to impose on a state officer, as such, any duty whatever, and compel him to perform it. . . . It is true that Congress may authorize a particular state officer to perform a particular duty; but if he declines to do so, it does not follow that he may be coerced or punished for his refusal."

There have since been a number of occasions in which a governor of one State has refused the extradition of a person found within its borders and who had admittedly come from the State which asked for his return. A notable instance was the refusal of the governor of Indiana to permit the extradition of exGovernor Taylor of Kentucky who was indicted in the latter State as having been a party to the murder of Governor Goebel.

§ 105. Extradition by the States of the Union to Foreign States. In 1840 the Supreme Court was called upon to pass upon the question whether it lies within the constitutional power of the individual States of the Union to surrender fugitives from justice to a foreign government.3 This point the court found it so difficult to decide that, after holding it under advisement for a long time, it divided equally and was, therefore, unable to render an opinion as the opinion of the court, though, according to its practice in such cases, it affirmed the decision of the court below. Taney in his individual opinion took the ground that the surrender of fugitives from justice is a matter that properly falls within the general field of international relations, and that the control of this field being exclusively vested in the Federal Government, the States are absolutely excluded therefrom, and, therefore, cannot, constitutionally, exercise the right of extraditing to foreign countries fugitives from them to their own territories. "The 3 Holmes v. Jennison, 14 Pet. 540; 10 L. ed. 579.

power in question," he declared, "from its nature, cannot be a concurrent one, to be exercised both by the States and the General Government. It must belong, exclusively, to the one or the other." With Taney agreed Story, McLean, and Wayne. Thompson, Barber and Catron, however, in their opinions, took the view, that the action of the governor of Vermont was not subject to examination upon the part of the federal court, because there then existed no treaty between the United States and the country to which the prisoner was to be extradited, which the governor's action could be said to violate. Baldwin in a separate opinion sustained the power of the State upon the ground that it was a legitimate exercise of its police power to obtain riddance of an undesirable inhabitant.

It would seem that the law upon this point remained in this unsettled state until 1886 when, in the case of United States v. Rauscher the Supreme Court declared, without dissent, that "there can be little doubt of the soundness of the opinion of Chief Justice Taney, that the power exercised by the governor of Vermont is a part of the foreign intercourse of this country which has undoubtedly been conferred upon the Federal Government; and that it is clearly included in the treaty-making power and the corresponding power of appointing and receiving ambassadors and other public ministers. There is no necessity for the States to enter upon the relations with foreign nations which are necessarily implied in the extradition of fugitives from justice found within the limits of the State, as there is none why they should in their own name make demand upon foreign nations for the surrender of such fugitives. At this time of day, and after the repeated examinations which have been made by this court into the powers of the Federal Government to deal with all such international questions exclusively, it can hardly be admitted that, even in the absence of treaties or acts of Congress on the subject, the extradition of a fugitive from justice can become the subject of negotiations between a State of this Union and a foreign government."

4119 U. S. 407; 7 Sup. Ct. Rep. 234; 30 L. ed. 425.

This question may probably be now considered definitely settled, but it is interesting to observe that the declaration settling it was, after all, a pure dictum, the point not being involved in the case in which it was made.

A number of decisions have held that the asylum State may satisfy the demands of its own laws before surrendering a fugitive to the State from which he has fled. "When a demand is properly made by the governor of one State upon the governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter case have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied." 5

§ 106. Auxiliary Legislation by the States.

The power of Congress by legislation to render effective the extradition clause is not exclusive, and does not, therefore, exclude the power of the State to enact measures auxiliary thereto. Indeed, such additional legislation is, in general, necessary, as, for example, laws for inquiry into the fact whether the person demanded was actually, and not constructively, within the State claiming him, when the offense charged was committed.

§ 107. Judicial Examination of Extradition Proceedings.

"Upon the executive of the State rests the responsibility of determining, in some legal mode, whether [the one claimed] is a fugitive of the demanding State. He does not fail in duty if he makes it a condition precedent to the surrender of the accused that it be shown to him, by competent proof, that the accused is, in fact, a fugitive from the justice of the demanding State."

5 Taylor v. Taintor, 16 Wall. 366; 21 L. ed. 287.

T

6 Ex parte McKean, 3 Hughes (U. S.), 23; Ex parte Ammons, 34 Ohio St. 518. See 3 Fed Statutes Annotated, 79, note.

7 Ex parte Reggel, 114 U. S. 642; 5 Sup. Ct. Rep. 1148; 29 L. ed. 250. Independent proof apart from its requisition papers that the accused is a fugitive from justice need not, however, be demanded by the governor of the surrendering State. Pettibone v. Nichols, 203 U. S. 192.

The governor cannot be compelled by judicial process, state or federal, to take action, but where he has acted, his action may be inquired into by the courts. Thus in Roberts v. Reilly the court say: "The Act of Congress (§ 5278, R. S.) makes it the duty of the executive authority of the State to which such person has fled, to cause the arrest of the alleged fugitive from justice, whenever the executive authority of any State demands such person as a fugitive from justice, and produces a copy of an indictment found or affidavit made before a magistrate of any State, charging the person demanded with having committed the crime therein, certified as authentic by the governor or chief Magistrate of the State from whence the person so charged has fled. It must appear, therefore, to the governor of the State to whom such a demand is presented, before he can lawfully comply with it; first, that the person demanded is substantially charged with a crime against the laws of a State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand; and second, that the person demanded is a fugitive from the justice of the State the executive authority of which makes the demand. The first of these prerequisites is a question of law and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus. The second is a question of fact, which the governor of the State upon whom the demand is made must decide, upon such evidence as he may deem satisfactory. How far his decision may be viewed judicially in proceedings in habeas corpus, or whether it is not conclusive, are questions not settled by harmonious judicial decisions, nor by any authoritative judgment of this court. It is conceded that the determination of the fact by the executive of the State in issuing his warrant of arrest, upon a demand made on that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof." "

8116 U. S. 80; 6 Sup. Ct. Rep. 291; 29 L. ed. 544.

See also Hyatt v. New York, 188 U. S. 691; 23 Sup. Ct. Rep 456; 47 L. ed. 657.