give full effect to that provision of the Federal Constitution which requires the return of the fugitives from justice, and to respect all laws made for the purpose of enforcing that provision. I have no inclination to disregard the obligation thus created, even though no power exists by which my action could be controlled. On the other hand, the seizure of a citizen of this State and his forcible transportation to a distant jurisdiction, beyond all protection from the laws of his own State, is a proceeding so serious that it can only be justified by positive law and the concurrence of all the facts required by law. The Governor of a State has a very solemn duty to perform toward his own people, as well as toward other States. He should see that no violent proceedings be taken against citizens who rely on him for protection, unless such proceedings be fully warranted by law.

Since the arrest of Gaffigan and Merrick the following facts have been so well established by evidence submitted to me that I cannot doubt their truth:

In January, 1865, after the death of Durkin, Gaffigan and Merrick left the county of Schuylkill, Pennsylvania, where they lived up to that time. They were aged respectively twenty-one and twenty-two years. There is no evidence that they attempted to conceal their destination. They came to the State of Illinois, and in 1867 settled in Springfield, the capital of the State, where they have ever since resided. One of them has for years done business as a merchant on one of the principal streets of the city, and has held the office of County Inspector of Mines by appointment of the Board of Supervisors of Sangamon county. The other has acted as School Director of the town of Woodside in the same county. Both have borne their true names and have shown themselves as publicly as any other citizens.

Merrick was a married man when he came to Illinois; Gaffigan has married a citizen of this State since coming here. Both have families of children born in this State, and of very tender age. During the residence of these men here they have been in frequent communication with their friends in Schuylkill county, Pennsylvania, their old home. Some years ago Mrs. Merrick, accompanied by four of her children, visited the old home and spent some weeks there, the residence of herself and husband at Springfield, in this State, being known and spoken of among her acquaintances as is usual when persons visit a former place of abode.

The father of Gaffigan, who resided at St. Clair, Pennsylvania,

where the murder is alleged to have been committed, openly left that town in 1870 or 1871 for the avowed purpose of living with his son in Springfield, Illinois. After living a short time in Springfield he died, and the fact of his death was at once telegraphed to one Conroy, who was a constable of St. Clair, and a witness whose name was indorsed on the indictment. The remains of the elder Gaffigan were taken back to St. Clair, Pennsylvania, and interred in the presence of a large number of people.

On the part of those who demand the surrender of the men it is alleged (and the statement is supported by affidavit) that the public prosecutor of the county of Schuylkill, Pennsylvania, in office at the time said indictment was found, and most, if not all of his successors up to a very recent date were ignorant of the whereabouts of the persons. This may be true, and I do not at all doubt it, but I think it clear that notwithstanding this, the whereabouts of the men was a matter of public and general notoriety in the county where the crime is alleged to have been committed, for from seven to twelve years before any action was taken for their arrest. They were in constant and open correspondence with their friends; the wife of one was at the old home for weeks; the father of the other openly left the old home to live with his son, and his body was taken back and publicly buried in the presence of a large number of people.

I feel entirely satisfied that, if the whereabouts of the men was unknown to the public prosecutors, it was because they did not take the slightest trouble to inquire. It is impossible that a fact so notorious to a multitude of people could be kept from a public officer if he had made the slightest effort to discover it.

It is urged by those who support the requisition of the Governor of Pennsylvania that I have no discretion in the matter, but must surrender the men if the papers presented are regular on their face. And this is to my mind the most important question. Have I the right to consider any extraneous facts-the lapse of time, the passiveness of the public prosecutor of Pennsylvania, the hardships of respectable families in this State, or any other matter beyond the very letter of the record?

The Supreme Court of the United States, in the celebrated case of Kentucky v. Dennison, made use of language which would seem to justify the conclusion that the Governor of a State to whom a requisition is presented, demanding the return of an alleged fugi

tive from justice, has only a ministerial duty to perform, and has no authority to look beyond the record. 24 Howard, 66.

The words used by the court are very strong, and if they are to be taken without qualification, would seem to be conclusive. Yet it is entirely certain that notwithstanding that decision it has been the practice of the Governors of many States to look beyond the papers presented. It is clear that where a prisoner is held to answer a criminal charge, in the State where found, he will not be surrendered upon the demand of the executive authority of another State. This has always been the practice in Illinois, as well as in all other States so far as I know. But since the case of Kentucky v. Dennison, the Supreme Court of the United States itself has conclusively shown that the words used by the court, in the case last cited, are not to be taken without qualification. In Tailor v. Taintor (16 Wallace, p. 366) a peculiar state of facts was shown. One McGuire was indicted in Connecticut and gave bail. He then went to the State of New York, but was taken from there on a requisition from the Governor of Maine, and was imprisoned in the State. He did not appear to answer the indictment in Connecticut, and forfeited his recognizance. Judgment being given against his bondsmen, they carried the case to the Supreme Court of the United States, where the judgment was affirmed. In discussing the questions presented the court say:

"Had the facts been made known to the executive of New York in time it is to be presumed he would have ordered McGuire to be delivered to them (the bondsmen), and not the authority of Maine."

Again on page 374 the court say: "It is true the constitutional provision and the law of Congress under which the arrest and delivery were made are obligatory on every State, and a part of the law of every State. But the duty enjoined is several and not joint, and every Governor acts independently and for himself. There can be no joint demand or refusal. In the event of refusal, the State making the demand must submit. There is no alternative. In the case of McGuire no impediment appeared to the Governor of New York, and he properly yielded obedience. The Governor of Connecticut, if applied to, might have rightfully postponed compliance. If advised in season he might have intervened and by a requisition have asserted the claim of Connecticut. It would then have been for the Governor of New York

to decide between the conflicting demands. Whatever the decision, if the proceedings were regular, it would have been conclusive. There could have been no review and no inquiry going behind it."

It thus appears that the language used in Kentucky v. Dennison is not unqualified, that an executive officer to whom a requisition is presented may do something more than inquire into the regularity of the record, and that however regular the record there still may be impediments of which the executive of whom the demand is made must be the judge. I refer to this case, and to the practice in this and other States, for the purpose of showing that whether my duties be regarded as purely ministerial or quasi judicial, I am not only empowered, but required to consider certain extraneous facts not appearing in the record presented to

me.

All acts of Congress and all State statutes relating to the surrender of fugitives from justice as between the States are only intended to give effect to section 2 of article 4 of the Constitution of the United States. That section is as follows:

"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."

Now, it is certainly clear that under this provision two circumstances must concur before any person can be lawfully arrested in one State and forcibly sent to another. He must be charged with treason, felony, or other crime, and he must be a fugitive from justice. Neither fact is sufficient without the other. It may be admitted that the certificate of the Governor of a State that a party has been charged with crime, when accompanied by a properly authenticated copy of the indictment or affidavit on which the prosecution is based, is conclusive proof of such fact. Under the Constitution the judicial records of each State are entitled to full faith and credit in all the other States. If the records so certified are regular upon their face, the executive of the State to whom the demand is made has clearly no right to go beyond the record and inquire whether the accused is guilty or innocent. The fact that the accused is charged with crime is thus conclusively established. But the second jurisdictional fact still remains to be established.

The Federal Constitution does not prescribe the mode by which

it shall be made to appear that the accused has fled from justice; nor does it in terms declare who shall determine the question. No judicial tribunal is appointed to consider or pass upon the question. It is customary to allege in the requisition that the party named is a fugitive from justice, and to accompany the statement with an affidavit to that effect. But no law requires this course, nor is the legal force of such an affidavit in any way defined. The Governor issuing the requisition must determine that fact for himself in the first instance. It is not at all certain that a prosecution for perjury could be maintained if such affidavit were false. In the absence of any counter evidence such an affidavit would ordinarily be sufficient no doubt, and would be satisfactory to the Governor on whom the demand was made. But is he concluded by such an affidavit? He does not know that it is true. Indeed, he may positively know that it is false. Can it be that as to a matter not established by a judicial record, the Governor on whom the demand is made is bound to accept prima facie evidence which he knows to be false, and disregard that which he knows to be true?

After full deliberation I am satisfied that as to the fact of the accused being a fugitive from justice, each Governor must judge for himself. The fact is not determined by any judicial act or record, but is in pais purely. Whether a person is charged with crime is another matter provable by records that import absolute verity, and therefore cannot be inquired into. But whether he has fled from the State wherein the charge was made is an open question for the determination of which the law has made no provision in terms.

I, therefore, proceed with regard to this question upon that settled principle, that where the law imposes upon any officer the duty of performing any act upon the happening of any event or the proof made of any fact, and at the same time does not create any tribunal for the determination of the condition precedent, such officer is required to judge for himself. . . .

I think it may be fairly held that the act of leaving the State of Pennsylvania shortly after the date of the alleged homicide was some evidence that Gaffigan and Merrick were fugitives from justice. That circumstance did not raise any very strong presumption, however, as there is no evidence that they concealed their destination or ever attempted to do so. It does not appear that they were ever even charged with the crime before leaving, the