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In Rowe v. Rowe, 28 Mich. 353, it is held that a common-law writ of certiorari may be granted by the Supreme Court to a court commissioner for the review of his proceedings on habeas corpus to discharge from unlawful restraint infant children, and that this is the only remedy in such a case where the commissioner had jurisdiction, and that in this case, he had no jurisdiction to order or decree the custody of such children.

In the celebrated McLeod case, 1 Hill, 377, and in note, the following principles in respect to habeas corpus are established: (1) When the petition shows a proper case the writ must issue. (2) If the petition states the prisoner is not held in the case made prohibitory by the statute, it must issue, although the records referred to in the petition may show an apparent lawful authority. (3) An apparent authority by judgment and process may not be a real or legal authority, and therefore on the return of the writ this question must be examined and decided, and even if such decision is wrong, it is nevertheless final until reversed on certiorari or error. (4) When the petition claims and asserts that proceedings in a Federal court which resulted in the imprisonment, though apparently authorized and valid, are not so in truth and fact, the writ must issue, and a discharge by a State court in such a case is final. Whart. Dig., tit. "Habeas Corpus." (5) The court or judge, having thus acquired jurisdiction, has the power to decide rightly or wrongly, and discharge or remand the prisoner, and all persons must yield obedience to the judgment, and it is final until reversed, even if there has been gross error. 1 Chit. Crim. Law, 128; Bacon Abr., tit. "Habeas Corpus." (7) The power within the jurisdiction is judicial, and such jurisdiction and power are precisely the same in judges at chambers, or court commissioners, as in the courts. (8) Jurisdiction attaches when the petition verified states that the prisoner is held without lawful authority. Betts v. Bagley, 12 Pick. 572. (9) If the officer returns a good writ and legal authority, even that does not end the case, or divest of jurisdiction, for there may be no good writ or legal authority in fact; either the writ or the person named in it may be wrong, and not the writ or person in question. (10) Jurisdiction may be given by a petition stating some proper ground for discharge, ex post facto to the judgment and writ, such as discharge, or satisfaction of the judgment or pardon, or the full penalty suffered. (11) After a discharge of a prisoner by the judge, commissioner, or court having jurisdiction, he cannot be rearrested, under the penalty of the statute, until the judgment of the judge or commissioner had been reversed by certiorari, or of the court by writ of error. Milburn case, supra. And such judgment is a bar to another writ of habeas cor· pus to remand the prisoner after his rearrest. Holmes v. Jennison, 14 Pet. 540. On the writ, as enlarged by statute, the officer or court must inquire (1 as to the jurisdiction in the case in which the prisoner is confined; (2) the excess of such jurisdiction; (3) whether the judgment has not been satisfied. People v. Liscomb, 60 N. Y. 566. A court commissioner, on habeas corpus, has jurisdiction to inquire whether the court, by whose process the petitioner is imprisoned, had jurisdiction in the case in question, not in any such case. The jurisdiction of a court cannot be protected against inquiry by merely asserting it. People v. Cussels, 5 Hill, 164; Ex parte Lange, 18 Wall. 163. There is full jurisdiction in a judge or court to discharge by this writ, when the court which rendered judgment exceeded his jurisdiction (Crepps v. Durden, Cowp. 640), or when the term of imprisonment has expired, as Rex v. Collyer, supra.

In McConologue's case, 107 Mass. 171, a minor enlisted in the army was discharged by a single judge

at chambers, and was recaptured by the army officers. On second habeas corpus the judge was advised to discharge the prisoner by the whole court, on the ground that his first discharge was final and conclusive on all persons and courts until reversed. This is a full and instructive case, and quotes the Booth case, in this State.

In Clarke's case, 12 Cush. 320, a witness was held under an attachment for contempt for disobeying a subpoena. After trial and judgment in the case it was held that he was properly discharged on habeas corpus, although the process was valid, on the ground that ex post facto to the arrest there was no legal cause for his detention.

In Feeley's case, 12 Cush. 598, the sentence was a fine and imprisonment, when the statute only authorized a fine or imprisonment. The prisoner was properly discharged, after the fine was paid, on habeas corpus. The question may be whether the prisoner was arrested on legal process, or whether he is now lawfully held thereon, by reason of something ex post facto the process. Hurd Hab. Corp. 326. Habeas corpus against habeas corpus is never allowed except in connection with the writ of certiorari. Ex parte Yerger, 8 Wall. 85; Ex parte Collier, 6 Ohio St. 55.

In Mead v. Deputy Marshal, 2 Wheel. Crim. Cas. 569, it is held that a person imprisoned for the non-payment of a fine, by a court-martial was properly discharged on habeas corpus on the ground that he had no notice of the proceedings. The judgment of diacharge, not actually void for want of jurisdiction to issue the writ, is a final judgment, and cannot be impeached collaterally. It can only be reviewed on error or certiorari. Fx parte McGehan, 22 Ohio (O. 8.), 442; Hurd Hab. Corp. 563; Ex parte Milburn, supra; 9 Pet. 704; Com. v. McBride, 2 Brewŝt. 545; Mathis v. Colbert, 24 Ga. 384.

If it is the judgment of a court, a writ of error lies without any statutory provision; and if by a judge or court commissioner, a certiorari lies at common law. Com v. Biddle, 6 Penn. Law J. 287. The attorney-general may appeal or take the writ in case of discharge. Ex parte Lafonta, 2 Rob. (La.) 495; Waddington v. Sloan, 15 B. Mon. 147; State v. Potter, Dud. Law (S.C.), 296; Hurd Hab. Corp. 575. A judge at chambers has plenary power and jurisdiction in writs of habeas corpus. In re Blair, 4 Wis. 531. A county judge, as court commissioner, has jurisdiction to inquire into the legality of the commitment, but when jurisdiction is shown in the court to issue it, he cannot discharge for mere errors or irregularities, but must remand the prisoner. This case was heard on certiorari. To ascertain jurisdiction the petition and papers annexed thereto can alone be consulted. Petition of Semler, 41 Wis. 517.

When the petition presents a proper case, then the writ must issue under the penalty of the statute, and the writ will not be denied without the most weighty reasons. In re Pierce, 44 Wis. 411. The statute prohibiting a commitment after a discharge on habeas corpus applies strictly to criminal proceedings. Beyer v. Vanderkuhlen, 48 Wis. 320; S. C., 4 N. W. Rep. 354. Certiorari will lie to a judge at chambers on habeas corpus proceedings to review his order remanding the prisoner, and the order will be reversed if this court finds that the court that issued the commitment had no jurisdiction. In re Eldred, 46 Wis. 530; S. C., 1 N. W. Rep. 175. Courts, judges at chambers, and court commissioners have equal jurisdiction of habeas corpus and must grant the writ unless the petition shows that the petitioner is clearly not entitled to it. Bagnal v. Ableman, 4 Wis. 163.

These authorities clearly establish (1) the jurisdiction of the commissioner to issue the writ and to hear it; (2) the finality and conclusiveness of his judgment

the sheriff for an escape, ou appeal it was held that the last discharge by a court commissioner was void because the prisoner was held on civil process. Many things are said in the opinion in this case, in which there was another dissent by Judge Spencer, not ap

of discharge; (3) the entire want of jurisdiction in this court to review, reverse, or annul that judgment by another writ of habeas corpus in respect to the same cause of imprisonment or grounds of discharge, or in any other way than by certiorari; (4) the writ of jurisdiction in the Circuit Court to order the peti-plicable to the case, and obiter in respect to the juris

tioner's rearrest and imprisonment for the same cause; (5) the want of authority in the sheriff to make such rearrest, or to recommit the petitioner to the county jail on the same sentence; and (6) the jurisdiction of the commissioner to determine the question whether the petitioner had already suffered and served the full terms of the imprisonment fixed by the sentence, and the conclusiveness of his adjudication of such fact.

The assistant attorney-general cited some cases other than the above, which he claimed were adverse to these positions.

In Re Buddington, 29 Mich. 472, it was held that a court commissioner had no power to review any proceeding of a court, and that his power under the writ was less than that of a court.

In re Frank, 39 Mich. 203, it was held that a court commissioner had no power to review on this writ the proceedings of a court, and had no judicial power, and his judgment was not conclusive. Our Constitution, in relation to the judicial power of a court commissioner (§ 23, art. 7), must be different from the Constitution of that State. We have seen that in many of the States, as well as in our own, the judicial power in habeas corpus is plenary, and equal to that of the

courts.

Spalding v. State of New York, 4 How. (U. S.) 21, was a case of imprisonment for contempt.

Ex parte Robinson,6 McLean, 355, was a case of a fugitive from labor, adjudicated to be a slave, and remanded to his master by a commissioner of the United States, under the act of Congress, and at tempted to be discharged by a State judge on habeas corpus, and has no application to this case.

In Wright v. State, 5 Ind. 290, the jurisdiction of the judge of the Common Pleas to remand the prisoner is affirmed, and his jurisdiction to discharge him is not denied.

In Yates' case, 4 Johns. 317, a master in chancery was imprisoned for malpractice by the court of chancery, and discharged by a judge of the Supreme Court at chambers on habeas corpus, and he was rearrested and imprisoned for the same cause. Judges Yates and Spencer held that the judge had jurisdiction to discharge, and that his discharge was final; but Chancellor Kent and Judges Van Ness and Thompson held that the judge had no plenary jurisdiction at chambers, and could not enforce his orders or judgments; and that they were not therefore final and conclusive. Not so however in this State, for he may imprison for contempt, etc., and so may a court commissioner.

In Yates v. Lansing, 5 Johns. 282, it was held only that courts could not be prosecuted for the penalty of the statute for rearrest of prisoner after his discharge on habeas corpus, and that the statute only referred to officers. In this case it is said that there had been a long contest since the Chamber case, in Cro. Car. 168 (as. I.), between courts of chancery and of law,over the right of interference by the law judges with the prisoners of the chancery courts. This controversy, no doubt, affected the decision of such cases in the early courts of New York, while the old court of chancery existed there.

In Cable v. Cooper, 15 Johns. 152, the imprisonment was on civil process, and the discharge under the statute for the relief of poor debtors. He was arrested again in a suit on the former judgment, and failed to plead his discharge. Then on habeas corpus, and a subsequent discharge thereon, and in a suit against

diction of court commissioners, and the conclusiveness of their judgments of discharge on habeas cor pus.

In Com v. Deacon, 8 Serg. & R. 72, the defendants were tried on an indictment of sixteen counts, and convicted by the jury on nine of them, and the jury said nothing as to the other seven. The court issued a commitment, without rendering judgment on the verdict, to hold the defendants for trial on these remaining counts. The court was the mayor's court of Philadelphia, of special and limited jurisdiction. On habeas corpus the prisoner was remanded, and on error to the Supreme Court this judgment was affirmed; the court holding that the mayor's court had jurisdiction by the indictment, and that although the defendants had been acquitted by the verdict, the imprisonment was not without jurisdiction, and erroneous only, and could not be reviewed on habeas corpus; and also that the court had jurisdiction of the habeas corpus by the petition, and the judgment thereon was final, because if the prisoner ought to have been discharged instead of remanded, it was error only, which might be reviewed. Many other cases might be cited to the same effect, that the judgment on habeas corpus on the same cause of commitment, where jurisdiction is had by the petition, is final and conclusive. In the above case, Duncan, J., said in his opinion: "You need not use any argument to prove that the plaintiffs cannot be tried on this indictment; " and then insisted that this was one of the facts or questions of law to be decided in that case, and there was jurisdiction for that purpose. So in this case, the question of fact, or perhaps the mixed question of law and fact, whether the petitioner had served out his sentence, and that it had expired by limitation of time, was within the jurisdiction of the commissioner to try and determine, and if he decided wrongly it could be corrected only on certiorari.

It is somewhat strange that the learned judge who ordered the rearrest and imprisonment of the petitioner should have overlooked the penal prohibition of the statute against a rearrest after discharge on habeas corpus. This prohibition is older than the statutes of our various States, and was early adopted as a necessary incident of this great writ of liberty, to protect its full, complete, and beneficent results, and secure its full operation and effect in favor of liberty by the statute of Charles II. We have seen that the petition and return in the former case before the commissioner show jurisdiction by alleging that the term of imprisonment had expired, and that the petitioner was then imprisoned without any legal authority. The above authorities show that such is a good and sufficient cause for the writ. But our statute, in effect, provides that it is.

Section 2427, Rev. Stat., sub. 4, provides, as one of the grounds upon which the court or officer must remand the prisoner, "that the time during which such party may be legally detained has not expired." This is equivalent to providing that he shall not be remanded, but shall be discharged if such time has expired. It is proper to say here that the learned assistant attorney-general insists that the petition in the first case showed that the petitioner had never been imprisoned in the county jail on such sentences; but as we have seen, the petition in that case did not so show, but for aught that appeared in that case, he was unfawfully imprisoned after the full term of the sentence had been suffered and had expired. The peti

tion in the present case shows that the pretended authority by which the petitioner has been detained since his discharge is four certificates of the original convictions and sentences issued by the clerk on the seventeenth day of March, 1884, and sets up the said former discharge in bar of any further adjudication of the matters in that case. The return of the sheriff in the present case sets out said certificates as the authority by which only he holds the petitioner, and alleges substantially that he never was imprisoned in the county jail on the former certificates, but that by his request, he, the sheriff, had allowed and permitted him to run at large in the village of Darlington during the whole time of said sentences, and alleges that the former discharge was no bar, because the commissioner had no jurisdiction of the case, and that it is absolutely void. It can be readily seen that this return undertakes to have the question whether the petitioner had actually suffered his full sentences before his discharge retried and redetermined upon the allegation of new facts only on the second writ of habeas corpus, which we have seen by the authorities cannot be done. That was the real and only question adjudicated by the commissioner, and it can be reviewed ouly by certiorari, and until reversed in that way is final. The real question here is whether the rearrest of the petitioner and his imprisonment on the same cause were lawful after such first discharge, and that question depends upon the question we have already examined, whether the commissioner had jurisdiction of the writ in that case; for it is not claimed that this court can, on this writ, go behind said judgment and correct the errors in the record. Not only is it clearly the law, but it is consonant with sound policy and reason, that one court or officer should not review or have the authority to reverse the judgment of discharge of another court or officer on habeas corpus. Under our statute, courts, and even this court, and a judge at chambers and court commissioners, have equal power and jurisdiction of the writ. The citizen should have a speedy and sure remedy and relief against unlawful imprisonment, and have the judgment conclusive. To secure this end the statute of prohibition under a penalty has been enacted.

But conceding that the first petition did show what is now shown on the return to this writ, that the sheriff had voluntarily allowed the petitioner to run at large during the whole of the aggregate term of the sentences, and that he had not been confined within the jail at all during said term, would it then have been clearly shown that the term of his imprisonment had not in law expired? and if so, did such showing divest the commissioner of jurisdiction in the case to even decide that question wrongly or to decide it at all? If he had decided that under such facts the petitioner had not been imprisoned at all on the judgments and certificates, and had therefore remanded the prisoner, would there have been any question of his jurisdiction to so decide? That decision might have been right and the other wrong; but if a court or tribunal has jurisdiction to decide rightly, so it has to decide wrongly, and the error of it must in either case be corrected only by appeal, or on error, or on writ of certiorari. This is sufficiently clear by all the authorities. But is it so clear a question, or rather, is it so clear as not to be a question at all-that the petitioner, even according to the return to this writ, had not suffered and fulfilled his whole punishment by the sentences? Let us see, by a brief glance at the authorities, whether it may not be in some doubt, at least; although we do not pretend to decide the question, as in our view we have no right to decide it on this writ. The first sentence was that if the fine and costs were not paid forthwith, that he be imprisoned, etc. The term commenced then at once, for the fine and costs

were not paid. The certificates were at once issued and placed in the hands of the sheriff, and the defendant was in court. When a prisoner is sentenced to imprisonment, the day of the sentence is the first day of the term. Then he is, in legal contemplation, in a different custody from that of the court. Clifford's case, 44 Mo. 280. In this case the prisoner, after he was sentenced in one case, and during his imprisonment, was sentenced in another case for a term to begin when the first was ended. He was held after such first term was ended, and properly discharged on habeas corpus. If the time of the imprisonment is not fixed in the sentence it is void. State v. Smith, 10 Nev. 106; Ex parte Gibson, 31 Cal. 626.

In Wright v. State, 5 Ind. 290, the prisoner was on trial for murder, and during the trial the jury was discharged by the expiration of the term of court. On habeas corpus he was remanded, and it was held on certiorari that the judge had jurisdiction of the writ to discharge or remand and did right to remand him, because he might plead his first jeopardy in bar of another trial, and thereby be relieved from imprisonment.

In State v. McClure, Phil. Law (N. C), 492, the sentence was to pay a fine and costs, and be imprisoned until paid indefinitely. The sheriff allowed the prisoner to go at large on his parol. He did not pay, and the solicitor had him arrested on a ca. sa. On motion before the court he was discharged, and on writ of error or appeal the Supreme Court reversed the order; not on the ground that he was properly rearrested on the sentence and had been improperly discharged, but because he was arrested on a new process. Com. v. Keniston, 5 Pick. 420. The sentence was ten days' solitary confinement, and two years at hard labor on October 6, 1825. On October 26, 1827, he was sentenced to imprisonment for another crime. Held, that the second sentence was void because imposed before the first sentence had exired by limitation of time. The term of every sentence runs from its date. Prince v. State, 1 Am. Crim. Rep. 545. The day of the sentence is the first day of imprisonment, whether actually in prison or not, and it is presumed that he was. Whart. Crim. Pr. & PI. 925.

In Migotti v. Colville, 14 Cox, C. C. 263, it was held that a sentence for one calendar month expires, by its limitation, on the day preceding that day which corresponds numerically in the next succeeding month, with the day on which the sentence was passed, and that the place in which the prisoner is to be confined is no part of the sentence and may be omitted. Weed v. People, 31 N. Y. 465; Whart. Crim. Pr. & Pl. 926. When the prisoner is sentenced to pay a fine and the costs, and be imprisoned until paid, and the prisoner is in court, he is in the custody of the officer under the sentence. 2 Barb. Crim. Law, 372, 376. These authorities would seem to make the question at least doubtful.

There is still another question arising from the cause of the failure of the actual imprisonment during the time or whole term of the sentence, of much importance, and that is, whether a prisoner can be re-arrested and imprisoned after such term has expired, when such failure was not the fault or crime of the prisoner himself.

In Ex parte Clifford, supra, it is held that a recapture after the term can be made only in case of escape by the fault of the prisoner or criminal escape. The right of recapture after the term depends upon whether the escape was the fault aud wrong of the prisoner himself. 1 Chit. Crim. Law, 421; 1 Bish. Crim. Pl. 120--129.

In Hollon v. Hopkins, 21 Kans. 638, the prisoner escaped on his way to prison. He was recaptured after the three years of his sentence had expired, and it was

held lawful, because he failed to be imprisoned by his own wrong, and that unless such failure was so caused his sentence had expired by its own limitation.

In Clerk v. Com., supra, the prisoner escaped from prison. The time of his absence was added to his term, on the ground that he had not suffered his full imprisonment by his own fault and wrong.

And there is still another question, whether in any case, imprisonment after the term on a recapture, can be enforced without giving the prisoner the chance to be heard on a rule to show cause or some malice. This seems to have been the practice in all cases I have examined, Com. v. Huggerty, supra; State v. Addington, 2 Bailey, 51; State v. Smith, supra; State v. Chancellor, supra; State v. Cokeran, supra; and many others. But as said before, we do not decide these questions, for they are not before us, having found the commissioner had full jurisdiction to hear and decide them. They might be errors which could only be corrected on certiorari, but not on this writ.

The importance of the principles involved, and the able arguments made and the numerous authorities cited by the learned counsel, and the fact that two of my brethren dissent from this decision, must be my apology and excuse for writing such an unusually long opinion.

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The relator was arrested in Indiana upon a requisttion issued by the governor of Wisconsin, upon a complaint in Justice Court, Columbia county, Wisconsin, charging him with embezzlement of property belonging to James Gowan, in that county, and brought into that county, where he was tried for that offense upon an information filed in the Circuit Court for that county, and acquitted upon the trial, and thereupon discharged by the court; that immediately thereafter and before he had time to leave the court-room, he was arrested upon a warrant issued by a justice of the peace of that county, upon a complaint for obtaining property, to wit, a horse, from Edward Lee by false pretenses, in that county, and was taken before a justice of the peace therein for examination, Dec. 29, 1883, and thereupon the justice adjourned the hearing, and entered such adjournment in his docket as follows: "December 29, 1883, 9 A. M. The witnesses for the

The return to the writ of habeas corpus in this case having been demurred to, we hold that the demurrer was well taken, and order that the same be sustained; and on the hearing of the petition and return, and duly considering the facts and records therein stated, we hold that the judgment of discharge of the peti-State not all being present, the court took a recess untioner, rendered by the court commissioner in the former case, is final and conclusive upon this court on this second writ on the same causes of detention, until

reversed for errors therein; said commissioner having had jurisdiction of the writ, and lawful authority to determine whether the petitioner was held and imprisoned by the sheriff of La Fayette county, by lawful authority, on the causes of detention made to apappear before him, which are substantially the causes of his present imprisonment.

It is therefore ordered that the petitioner be and he is hereby discharged from further detention and imprisonment on the same causes thereof, and that he go hence without day.

Taylor and Cassoday, JJ., dissent.

EXTRADITION-ARREST AND TRIAL FOR AN-
OTHER OFFENSE.

WISCONSIN SUPREME COURT, MAY 15, 1884.*

STATE V. STEWART.

Where a prisoner has been extradited from one State to another on the requisition of the governor for a certain of fense, and has been tried, acquitted and discharged, he may be arrested and tried for another offense before he has an opportunity of returning to the State from which he was brought, in the absence of any compact between the States that this shall not occur; the prisoner, and not the State from which he was extradited, making the claim of violated rights.

Interstate extradition is distinguishable from extradition between nations.

The words "treason, felony or other crime," as used in the Constitution and laws of the United States, embrace every act forbidden and made punishable by a law of the State; and when obtaining money under false pretenses is a crime by the laws of a State (Rev St. 1878, § 4422) the offender is subject to interstate extradition. U. S. Const., $2, art. 4; U. S Rev. St., § 5278.

* 19 N. W. Rep. 429.

til 1 o'clock P.M." At 1 o'clock P.M., the parties all being present, the justice proceeded with the examination, and afterward committed the defendant to the county

jail of said county to await his trial. That whatever representations were made by the relator, constituting the false pretenses alleged, were made at Portage, in that county, and that thereafter the relator went to the county of Sauk, but within twenty rods of the boundary line between that county and Columbia county, and obtained the horse. While the relator was being so held by the sheriff on the last-mentioned charge, he was brought before Hon. Alva Stewart, judge of the Circuit Court for that county, on habeas corpus, and after hearing thereon he was ordered by that judge into the custody of the sheriff of Columbia county. To review that order this certiorari is brought.

Stroud, Armstrong & Stroud, for relator.

H. W. Chynoweth, assistant attorney-general, for respondent.

CASSODAY, J. 1. It is claimed that the arrest for the last offense was illegal, because it was made immediately after the relator had been tried, acquitted and discharged on the offense upon which he had been brought to the State from Indiana on the requisition of the governor, and before he had time to return. Treaty stipulations between nations frequently guarantee to the fugitive the right to leave the demanding country after the trial for the offense for which the fugitive has been surrendered, in case of acquittal, or in case of conviction after his endurance of the punishment. When not so guaranteed it is sometimes made the subject of executive pledge. Whart. Confi. Laws, §§ 835, 844, 846. It has been held that an extradited fugitive cannot be held in violation of such treaty or pledge to answer for any other offense than the one for which he had been surrendered. U. S. v. Watts, 14 Fed. Rep. 130; Com. v. Hawes, 13 Bush, 697. But in the absence of such treaty stipulation it has been held that there is no implied obligation to delay the arrest for such other offense. Adriance v. Lugrave, 59 N. Y.

110; U. S. v. Caldwell, 8 Blatchf. 131; U. S. v. Lawrence, 13 id. 295.

So it has been held to be no ground for releasing a prisoner who had escaped from the State into Canada and forcibly brought back to the State, and there arrested without the assent of the authorities of Canada. State v. Brewster, 7 Vt. 118; People v. Rowe, 4 Parker, Crim. 253; Dow's Case, 18 Penn. St. 37. Here no treaty stipulation to guarantee return is involved, and hence cases of international extradition arising under such treaties are not applicable. Ham v. State, 4 Texas App. 645.

This is a case of interstate extradition, and arises under the Constitution and laws of the United States. "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." Const. U. S., § 2, art. 4. The act of Congress is of the same import, and provides that a copy of an affidavit made before a magistrate of the State from whence the person so charged has fled, properly certified, shall be sufficient to authorize such demand, arrest and delivery. Ch. 198 Rev. St., and § 5278, U. S. Rev. St.

The act however is wholly silent as to any delay in arresting the prisoner upon any different charge after he has been acquitted, or after he has endured the punishment for the offense for which he was extradited. It contains no provision securing to the fugitive any right of return. This distinction between international and interstate extradition seems to be very marked. True, the learned judge who wrote the opinion in Cannon's case, 47 Mich. 487; 11 N. W. Rep. 280, cited by counsel, said: "We do not perceive any ground for the distinction." But the difference between such treaty stipulations and the Constitution and laws of the United States was not even mentioned, and no authority was cited nor argument advanced to prove that there was none. On the contrary, the learned judge said: "We do not deem it necessary to refer at large to the decided cases which were cited on the hearing. They cannot be reconciled in principle, although very few of them would conflict with our views ou so plain a case as the present." The learned judge and the court were evidently impressed with the features and circumstances of the arrest in that particu lar case which distinguished it from the cases there cited by counsel. It has frequently been held in effect however by courts of equal ability that a fugitive from justice extradited under the Constitution and laws of the United States, on the charge of the commission of a specific crime, and discharged therefrom, can be held by the courts of the State to which he is surrendered for another and entirely different crime. In ve Noyes, 17 Alb. L. J. 407; In re Miles, 52 Vt. 609; Ham v. State, supra; Williams v. Bacon, 10 Wend. 636; Browning v. Abrams, 51 How. Pr. 172; Dow's Case, 18 Penn. St. 37.

The interstate extradition clause of the Constitution was never intended for the benefit of fugitives, nor to enable them to escape just punishment for their offenses. On the contrary, it was to secure the apprehension of any who should escape the jurisdiction wherein his offense had been committed. It was in effect a compact between the States upon a subject purely local, and as to which each would otherwise have been an independent Sovereignty, that in case any person charged with crime in one State fled into another, such other should, on demand of the executive of the former, cause him to be arrested and secured, if found therein, and delivered up to the agent of the former, to be removed to the State from which he so fled. It was, in effect, a pledge from every State to each of the others

incorporated into the organic law of the nation, that it would become, to a certain extent, an agency in the administration of the laws of every other State against treason, felony or other crime, as to all such criminals as should come within its borders. By it each State agreed not to willingly become a refuge for the criminals of any other, and not to allow any guilty person to go unpunished by its aid or connivance. This duty each State voluntarily assumed. The crime being committed, the offense properly charged, and the demand being properly made, the act of Congress referred to says "it shall be the duty of the executive authority of the State" to cause the fugitive to be arrested and secured, and to be delivered to the agent of the State from which he fled.

"The performance of this duty however," said Taney, C. J., "is left to depend on the fidelity of the State executive to the compact entered into with the other States when it adopted the Constitution of the United States and became a member of the Union. It was so left by the Constitution, and necessarily so left by the act of 1793. * **But if the governor of Ohio refuses to discharge this duty there is no power delegated to the general government, either through the judicial department or any other department, to use any coercive means to compel him." Kentucky v. Dennison, 24 How. 109. To the same effect, Taylor v. Taintor, 16 Wall. 370; Ex parte Virginia, 100 U. S. 347, 359; Ex parte Siebold, id. 391.

"But if he act," said Mr. Justice Swayne in Taylor v. Taintor, supra, "and the fugitive is surrendered, the State whence he is removed can no longer require his appearance before her tribunals, and all obligations which she has taken to secure that result thereupon at once, ipso facto, lose their binding effect." Thus it appears that the State demanding and the State delivering are each under a reciprocal duty to the other, the performance of which depends upon their respective fidelity to the mutual obligations resting upon them. But the State of Indiana is not here complaining of any violation of duty, nor that any of its sovereign rights have been outraged. It is the fugitive who makes complaint, and in the name of Indiana asks that he may be restored to that State from which he was extradited. He does this under an agreement or compact between the two States, not made to secure his escape from punishment, but to insure his trial, notwithstanding he has filed the State, in case he is charged with a crime. Here the relator was extradited because he was so charged. For that offense he was tried, acquitted and discharged. The record discloses no executive pledge guaranteeing his return. After his discharge he was arrested for obtaining property under false pretenses. He now asked to be discharged, because he was not allowed time to return to Indiana before being arrested for the second offense.

In Cannon's case, supra, the prisoner was taken from Kansas to Michigan on a requisition of the governor of the latter State on the criminal charge of seduction committed in that State. On being thus brought into Michigan, he was taken before a justice of the peace December 12, 1881, on the warrant for the seduction, for examination. The hearing was adjourned for cause to December 27, 1881. Before the hearing, and while the prisoner was out on bail, to wit, December 16, 1881, the prosecuting attorney commenced bastardy proceedings for the same transaction involved in the previous complaint for seduction, and thereupon a warrant was issued and he was arrested December 17, 1881. To that charge he refused to plead. December 27, 1881, he was brought before the magistrate on the charge of seduction, which was at once discontinued on the admitted ground that it was not founded on any legal reasons. Thereupon the prisoner was released by the Supreme Court on habeas corpus from detention

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