Ker v. Illinois, 119 U. S. 436, and
Mahon v. Justice, 127 U. S. 700,
affirmed as to the following points:
(1) That this Court will not interfere to relieve persons who
have been arrested and taken by violence from the territory of one
state to that of another where they are held under process legally
issued from the courts of the latter state.
Page 146 U. S. 184
(2) That the question of the applicability of this doctrine to a
particular case is as much within the province of a state court, as
a question of common law or of the law of nations, as it is of the
courts of the United States.
Ex Parte Royall, 117 U. S. 241, and
Ex Parte Fonda, 117 U. S. 516,
adhered to as to the point that where a person is in custody under
process from a state court of original jurisdiction for an alleged
offense against the law, of that state, and it is claimed that he
is restrained of his liberty in violation of the Constitution of
the United States, a circuit court of the United States has a
discretion whether it will discharge him in advance of his trial in
the court in which he is indicted, which discretion will be
subordinated to any special circumstances requiring immediate
action.
The exercise of the power to issue writs of habeas corpus to a
state court proceeding in disregard of rights secured by the
Constitution and laws of the United States, before the question has
been raised or determined in the state court, is one which ought
not to be encouraged.
In this case, the Court affirms the judgment of the circuit
court refusing to discharge on writ of habeas corpus a prisoner who
had been surrendered by the Governor of Illinois on the requisition
of the Governor of Wisconsin as a fugitive from justice, but who
claimed not to have been such a fugitive, it appearing that the
case was still pending in the courts of the Wisconsin, and had not
been tried upon its merits, and this Court further held
(1) That no defect of jurisdiction was waived by submitting to a
trial on the merits.
(2) That comity demanded that the state courts should be
appealed to in the first instance.
(3) That a denial of his rights there would not impair his
remedy in the federal Courts.
(4) That no special circumstances existed here such as were
referred to in
Ex Parte Royall, 117 U.
S. 241.
This was an appeal from an order of the Circuit Court for the
Eastern District of Wisconsin discharging a writ of habeas corpus
and remanding the petitioner, Charles E. Cook, to the custody of
the Sheriff of Dodge County, Wisconsin. The facts of the case were
substantially as follows:
On March 9, 1891, the Governor of Wisconsin made a requisition
upon the Governor of Illinois for the apprehension and delivery of
Cook, who was charged with a violation of section 4541 of the Laws
of Wisconsin, which provides that
"any officer, director, . . . manager, . . . or agent of any
bank, . . . or of any person, company, or corporation, engaged in
whole or in part in banking, brokerage, . . .
Page 146 U. S. 185
or any person engaged in such business in whole or in part, who
shall accept or receive on deposit, or for safekeeping, or to loan,
from any person, any money . . . for safekeeping or for collection,
when he knows, or has good reason to know, that such bank, company,
or corporation, or that such person, is unsafe or insolvent, shall
be punished,"
etc. The affidavits annexed to the requisition tended to show
that the petitioner, Cook, and one Frank Leake, in May, 1889,
opened a banking office at Juneau, in the County of Dodge, styled
the "Bank of Juneau," and entered upon and engaged in a general
banking business, with a pretended capital of $10,000, and
continued in such business, soliciting and receiving deposits up to
and including June 20, 1890, when the bank closed its doors; that
during all this time Cook had the general supervision of the
business and was the principal owner of the bank, and all business
was transacted by him personally or by his direction by one
Richardson, acting as his agent; that Cook frequently visited the
bank, and well knew its condition; that from January 6 to June 20,
1890, Cook, by the inducements and pretenses held out by the bank,
received deposits from the citizens of that county to the amount of
$25,000; that this was done by the express order and direction of
Cook, and such amount appeared upon the books of the bank at the
time it failed as due to its depositors; that Cook, while receiving
these deposits, drew out of the bank all of its pretended capital
stock, if any were ever put in, and also all the deposits, except
the sum of $5,048 in money and securities, which was in the bank at
the time it closed; that on June 23, 1890, Cook and Leake assigned
their property for the benefit of their creditors; that on the 6th
of January, 1890, and from that time onward, Cook knew, and had
good reason to know, that both he and Leake and the bank were each
and all of them unsafe and insolvent; that on June 20, 1890 at
about four o'clock in the afternoon, the said Cook and Leake
accepted and received a deposit in said bank from one Herman Becker
to the amount of $175 in money, and that said deposit was received
by direction and order of the said Cook, he knowing that said bank
was unsafe and insolvent. There
Page 146 U. S. 186
was also annexed a complaint setting forth substantially the
same facts, and a warrant issued by a justice of the peace for
Dodge county for the apprehension of Cook. Upon the production of
this requisition with the documents so attached, the Governor of
Illinois issued his warrant for the arrest and delivery of Cook to
the defendant, as agent of the executive authority of the State of
Wisconsin. Cook was arrested by the Sheriff of Cook County,
Illinois, and on the same day, and while still in the custody of
the sheriff, procured a writ of habeas corpus from the Circuit
Court of Cook County to test the legality of his arrest. That
court, on June 6, 1891, decided that the arrest was legal, remanded
Cook to the custody of the sheriff, and he was thereupon delivered
to the defendant as executive agent, and conveyed to Wisconsin,
where he was examined before the magistrate issuing the warrant and
held to answer the charge. During the September term of the circuit
court of that county, an information was filed against him charging
him with the offense set out in the original complaint. Upon his
application, the trial was continued to the term of said court
beginning in February, 1892. He appeared and was arraigned at that
term, pleaded not guilty, and the trial was begun, when, and during
the pendency of such trial, Cook sued out a writ of habeas corpus
from the circuit court of the United States, claiming that his
extradition from Illinois to Wisconsin was in violation of the
Constitution and laws of the United States. It was established upon
the hearing to the satisfaction of the court below that Cook, for
some years prior to the 20th day of June, 1890, and for some years
prior to his arrest upon the warrant of the executive of Illinois,
had been, and still was, a resident of the City of Chicago; that he
made occasional visits to Wisconsin in connection with his banking
business at Juneau and elsewhere; that he left Chicago on June 17,
1890, and went to Hartford, in the County of Washington, State of
Wisconsin, where he spent the whole of the 18th day of June,
proceeding thence to Beaver Dam, in the County of Dodge, where he
was engaged during the whole of the 19th day of June with business
not connected with the Bank of Juneau; that early in the
morning
Page 146 U. S. 187
of June 20th he left Beaver Dam, and made a continuous journey
to Chicago, arriving there at two o'clock in the afternoon, and
that he did not, on the occasion of that visit to Wisconsin, visit
or pass through the Village of Juneau, and had not been there for
some three weeks prior to the closing of the bank on June 20th. It
was also conceded at the hearing that the particular deposit by
Herman Becker, charged in the complaint upon which the requisition
proceedings were had, was actually made at four o'clock in the
afternoon of June 20th, and after the petitioner's arrival in
Chicago.
Upon the hearing of the writ of habeas corpus, the petitioner
was remanded to the custody of the defendant, 49 F. 833, and
thereupon he appealed to this Court.
Page 146 U. S. 189
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Petitioner claims his discharge upon the ground that he is
accused of having illegally received a deposit in his bank at
Juneau, when in fact he had not been in Juneau within three weeks
before the deposit was received, and that at the time it was
received, which was about 4 o'clock in the afternoon of June 20,
1890, he was in Illinois, and had been in that state for more than
two hours before the deposit was received. He had in fact left
Beaver Dam, Wisconsin, at an early hour that day, and traveled
continuously to Chicago, not stopping at Juneau and having no
actual knowledge of the illegal deposit charged. Upon this state of
facts, petitioner insists that his journey from Wisconsin to
Illinois was not a "fleeing from justice," within the meaning of
Article IV, Section 2, of the Constitution; that it is essential to
the jurisdiction of the trial court that he should have been a
fugitive from justice, and hence that the Circuit Court of Dodge
County was without authority to try him for the offense charged,
and he should
Page 146 U. S. 190
therefore be relieved from its custody upon this writ of habeas
corpus.
We regard this case as controlled in all its essential features
by those of
Kerr v. Illinois, 119 U.
S. 436, and
Mahon v. Justice, 127 U.
S. 700. The former case arose upon a writ of error to
the Supreme Court of Illinois. The petitioner had pleaded, in
abatement to an indictment for larceny in the Criminal Court of
Cook County, that he had been kidnapped from the City of Lima, in
Peru, forcibly placed on board a vessel of the United States in the
harbor of Callao, carried to San Francisco, and sent from there to
Illinois upon a requisition made upon the Governor of California.
After disposing of the point that he had not been deprived of his
liberty without "due process of law," the Court intimated, in reply
to an objection that the petitioner was not a fugitive from justice
in the State of California, that
"when the governor of one state voluntarily surrenders a
fugitive from the justice of another state to answer for his
alleged offenses, it is hardly a proper subject of inquiry on the
trial of the case to examine into the details of the proceedings by
which the demand was made by the one state and the manner in which
it was responded to by the other."
The Court further held that the petitioner had not acquired by
his residence in Peru a right of asylum there, a right to be free
from molestation for the crime committed in Illinois, or a right
that he should only be removed thereto in accordance with the
provisions of the treaty of extradition, and winds up the opinion
by observing that
"the question of how far his forcible seizure in another
country, and transfer by violence, force, or fraud to this country,
could be made available to resist trial in the state court for the
offense now charged upon him is one which we do not feel called
upon to decide, for in that transaction we do not see that the
Consititution or laws or treaties of the United States guaranty him
any protection. There are authorities of the highest respectability
which hold that such forcible abduction is no sufficient reason why
the party should not answer when brought within the jurisdiction of
the court which has the right to try him for such an offense. . .
.
Page 146 U. S. 191
However this may be, the decision of that question is as much
within the province of the state court as a question of common law,
or of the law of nations, of which that court is bound to take
notice, as it is of the courts of the United States."
The case of
Mahon v. Justice, 127 U.
S. 700, arose upon an application of the Governor of
West Virginia to the District Court of the United States for the
District of Kentucky for the release of Mahon upon a writ of habeas
corpus upon the ground that he had been, while residing in West
Virginia and in violation of her laws, without warrant or other
legal process, arrested by a body of armed men from Kentucky and,
by force and against his will, carried out of the state to answer
to a charge of murder in the State of Kentucky. As stated in the
opinion of the Court, the governor
"proceeded upon the theory that it was the duty of the United
States to secure the inviolability of the territory of the state
from a lawless invasion of persons from other states, and, when
parties had been forcibly taken from her territory and
jurisdiction, to afford the means of compelling their return."
This Court held that while the accused had the right, while in
West Virginia, of insisting that he should not be surrendered to
the Governor of Kentucky except in pursuance of the acts of
Congress, and was entitled to release from any arrest in that state
not made in accordance with them, yet that as he had been
subsequently arrested in Kentucky under the writs issued under the
indictments against him, the question was not as to the validity of
the arrest in West Virginia, but as to the legality of his
detention in Kentucky. "The only question, therefore," said the
Court,
"presented for our determination is whether a person indicted
for a felony in one state, forcibly abducted from another state and
brought to the state where he was indicted by parties acting
without warrant or authority of law, is entitled, under the
Constitution or laws of the United States, to release from
detention under the indictment by reason of such forcible and
unlawful abduction."
After a full review of all the prior authorities upon the point,
the Court came to the conclusion that the
Page 146 U. S. 192
jurisdiction of the court of the state in which the indictment
was found was not impaired by the manner in which the accused was
brought before it. "There is indeed," said the Court,
"an entire concurrence of opinion as to the ground upon which a
release of the appellant in the present case is asked -- namely
that his forcible abduction from another state and conveyance
within the jurisdiction of the court holding him is no objection to
his detention and trial for the offense charged. They all proceed
upon the obvious ground that the offender against the law of the
state is not relieved from liability because of personal injuries
received from private parties or because of indignities committed
against another state."
There was a vacancy in the office of Chief Justice at the time,
and two members of the court (Mr. Justice Bradley and MR. JUSTICE
HARLAN) dissented upon the ground that the Constitution had
provided a peaceful remedy for the surrender of persons charged
with crime; that this clearly implied that there should be no
resort to force for this purpose; that the cases upon which the
Court relied had arisen where a criminal had been seized in one
country and forcibly taken to another for trial, in the absence of
any international treaty of extradition, and that, as the
application in that case was made by the governor of the state
whose territory had been lawlessly invaded, he was entitled to a
redelivery of the person charged.
These cases may be considered as establishing two propositions:
(1) that this Court will not interfere to relieve persons who have
been arrested and taken by violence from the territory of one state
to that of another, where they are held under process legally
issued from the courts of the latter state; (2) that the question
of the applicability of this doctrine to a particular case is as
much within the province of a state court, as a question of common
law or of the law of nations, as it is of the courts of the United
States.
An attempt is made to distinguish the case under consideration
from the two above cited in the fact that those were cases of
kidnapping by third parties, by means of which the accused were
brought within the jurisdiction of the trial state,
Page 146 U. S. 193
and the state had not acted, as here, under legal process, or
been in any way a party to the proceedings; that they were cases of
tort, for which the injured parties could sue the tortfeasors,
while in the case under consideration, the action is under and by
virtue of an act of Congress, and hence the party can ask this
Court to inquire whether the power thus invoked was properly
exercised. The distinction between cases of kidnapping by the
violence of unauthorized persons without the semblance of legal
action and those wherein the extradition is conducted under the
forms of law, but the governor of the surrendering state has
mistaken his duty and delivered up one who was not in fact a
fugitive from justice, is one which we do not deem it necessary to
consider at this time. We have no doubt that the governor upon whom
the demand is made must determine for himself, in the first
instance at least, whether the party charged is in fact a fugitive
from justice,
Ex Parte Reggel, 114 U.
S. 642;
Roberts v. Reilly, 116 U. S.
80,
116 U. S. 6
Sup.Ct. Rep. 291, but whether his decision thereon be final is a
question proper to be determined by the courts of that state. A
proceeding of that kind was undertaken in this case when Cook
applied to the state circuit court of Chicago to obtain a writ of
habeas corpus to test the legality of his arrest. Upon the hearing
of this writ, the court decided the arrest to be legal, and
remanded Cook to the custody of the sheriff, by whom he was
delivered to the defendant as executive agent of the State of
Wisconsin. Cook acquiesced in this disposition of the case, and
made no attempt to obtain a review of the judgment in a superior
court. Long after his arrival in Wisconsin, however, and after the
trial of his case had begun, he made this application to the
circuit court of the United States for that district upon the
ground he had originally urged, namely that he was not a fugitive
from justice within the meaning of the Constitution and laws of the
United States. That court decided against him, holding that he had
been properly surrendered.
It is proper to observe in this connection that, assuming the
question of flight to be jurisdictional, if that question be raised
before the executive or the courts of the surrendering state, it is
presented in a somewhat different aspect after the accused
Page 146 U. S. 194
has been delivered over to the agent of the demanding state, and
has actually entered the Territory of that state, and is held under
the process of its courts. The authorities above cited, if
applicable to cases of interstate extradition, where the forms of
law have been observed, doubtless tend to support the theory that
the executive warrant has spent its force when the accused has been
delivered to the demanding state; that it is too late for him to
object even to jurisdictional defects in his surrender, and that he
is rightfully held under the process of the demanding state. In
fact, it is said by Mr. Justice Miller in
Kerr v.
Illinois, 119 U. S. 441,
that
"the case does not stand where the party is in court, and
required to plead to an indictment, as it would have stood upon a
writ of habeas corpus in California."
Some reasons are, however, suggested for holding that if he were
not in fact a fugitive from justice, and entitled to be relieved
upon that ground by the courts of the surrendering state, he ought
not to be deprived of that right by a forced deportation from its
territory before he could have an opportunity of suing out a writ
of habeas corpus. That question, however, does not necessarily
arise in this case, since the record before us shows that he did
sue out such writ before the criminal court of Cook County, and
acquiesced in its decision remanding him to the custody of the
officer.
As the defense in this case is claimed to be jurisdictional, and
in any aspect is equally available in the state as in the federal
courts, we do not feel called upon at this time to consider it or
to review the propriety of the decision of the court below. We
adhere to the views expressed in
Ex Parte Royall,
117 U. S. 241, and
Ex Parte Fonda, 117 U. S. 516,
that where a person is in custody under process from a state court
of original jurisdiction for an alleged offense against the laws of
that state, and it is claimed that he is restrained of his liberty
in violation of the Constitution of the United States, the circuit
court of the United States has a discretion whether it will
discharge him in advance of his trial in the court in which he is
indicted, although this discretion will be subordinated to any
special circumstances requiring immediate action. While the federal
courts have the power and may discharge the accused in advance
Page 146 U. S. 195
of his trial, if he is restrained of his liberty in violation of
the federal Constitution or laws, they are not bound to exercise
such power even after a state court has finally acted upon the
case, but may, in their discretion, require the accused to sue out
his writ of error from the highest court of the state, or even from
the Supreme Court of the United States. As was said in
Robb v.
Connolly, 111 U. S. 624,
111 U. S.
637:
"Upon the state courts, equally with the courts of the union,
rests the obligation to guard, enforce, and protect every right
granted or secured by the Constitution of the United States and the
laws made in pursuance thereof, whenever those rights are involved
in any suit or proceeding before them."
We are unable to see in this case any such special circumstances
as were suggested in the case of
Ex Parte Royall as
rendering it proper for a federal court to interpose before the
trial of the case in the state court. While the power to issue
writs of habeas corpus to state courts which are proceeding in
disregard of rights secured by the Constitution and laws of the
United States may exist, the practice of exercising such power
before the question has been raised or determined in the state
court is one which ought not to be encouraged. The party charged
waives no defect of jurisdiction by submitting to a trial of his
case upon the merits, and we think that comity demands that the
state courts, under whose process he is held, and which are,
equally with the federal courts, charged with the duty of
protecting the accused in the enjoyment of his constitutional
rights, should be appealed to in the first instance. Should such
rights be denied, his remedy in the federal court will remain
unimpaired. So far from there being special circumstances in this
case to show that the federal court ought to interfere, the fact
that, with ample opportunity to do so, he did not apply for this
writ until after the jury had been sworn and his trial begun in the
state court, is of itself a special circumstance to indicate that
the federal court should not interpose at this time.
The judgment of the court below refusing the discharge is
therefore
Affirmed.
