The duty of a federal court to interfere, on habeas corpus, for
the protection of one alleged to be restrained of his liberty in
violation of the Constitution or laws of the United States must
often be controlled by the special circumstances of the case, and
except in an emergency demanding prompt action, the party held in
custody by a state, charged with crime against its laws, will be
left to stand his trial in the state court, which, it will be
assumed, will enforce, as it has the power to do equally with a
federal court, any right asserted under and secured by the supreme
law of the land.
Even if the arrest and deportation of one alleged to be a
fugitive from justice may have been effected by fraud and
connivance arranged between the executive authorities of the
demanding and surrendering states so as to deprive him of any
opportunity to apply before deportation to a court in the
surrendering state for his discharge, and even if, on such
application to any court, state or federal, he would have been
discharged, he cannot, so far as the Constitution or the laws of
the United States are concerned -- when actually in the demanding
state, in the custody of its authorities for trial, and subject to
the jurisdiction thereof -- be discharged on habeas corpus by the
federal court. It would be
Page 203 U. S. 193
improper and inappropriate in the circuit court to inquire as to
the motives guiding or controlling the action of the Governors of
the demanding and surrendering states.
No obligation is imposed by the Constitution or laws of the
United States on the agent of a demanding state to so time the
arrest of one alleged to be a fugitive from justice and so conduct
his deportation from the surrendering state as to afford him a
convenient opportunity, before some judicial tribunal, sitting in
the latter state, upon habeas corpus or otherwise, to test the
question whether he was a fugitive from justice and as such liable,
under the act of Congress, to be conveyed to the demanding state
for trial there.
This is an appeal from a judgment of the Circuit Court of the
United States for the District of Idaho, refusing, upon habeas
corpus, to discharge the appellant, who alleged that he was held in
custody by the Sheriff of Canyon County in that state, in violation
of the Constitution and laws of the United States.
It appears that, on the twelfth day of February, 1906, a
criminal complaint verified by the oath of the prosecuting attorney
of that county and charging Pettibone with having murdered Frank
Steunenberg at Caldwell, Idaho, on the thirtieth day of December,
1905, was filed in the office of the probate judge. Thereupon, a
warrant of arrest based upon that complaint having been issued,
application was made to the Governor of Idaho for a requisition
upon the Governor of Colorado (in which state the accused was
alleged then to be) for the arrest of Pettibone, and his delivery
to the agent of Idaho, to be conveyed to the latter state and there
dealt with in accordance with law. The papers on which the Governor
of Idaho based his requisition distinctly charged that Pettibone
was in that state at the time Steunenberg was murdered and was a
fugitive from its justice.
A requisition by the Governor of Idaho was accordingly issued
and was duly honored by the Governor of Colorado, who issued a
warrant commanding the arrest of Pettibone and his delivery to the
authorized agent of Idaho, to be conveyed to the latter state.
Pettibone was arrested under that warrant and carried to Idaho by
its agent, and was there delivered by order of the probate judge
into the custody of the warden
Page 203 U. S. 194
of the state penitentiary, the jail of the county being deemed
at that time an unfit place.
On the twenty-third day of February, 1906, Pettibone sued out a
writ of habeas corpus from the Supreme Court of Idaho. The warden
made a return, stating the circumstances under which the accused
came into his custody, and also that the charge against Pettibone
was then under investigation by the grand jury. To this return, the
accused made an answer embodying the same matters as were alleged
in the application for the writ of habeas corpus and charging, in
substance, that his presence in Idaho had been procured by
connivance, conspiracy, and fraud on the part of the executive
officers of Idaho, and that his detention was in violation of the
provisions of the Constitution of the United States and of the act
of Congress relating to fugitives from justice.
Subsequently, March seventh, 1906, the grand jury returned an
indictment against Pettibone, William D. Haywood, Charles H. Moyer,
and John L. Simpkins, charging them with the murder of Steunenberg
on the thirtieth of December, 1905, at Caldwell, Idaho. Having been
arrested and being in custody under that indictment, the officer
holding Pettibone made an amended return stating the fact of the
above indictment, and that he was then held under a bench warrant
based thereon.
At the hearing before the supreme court of the state, the
officers having Pettibone in custody moved to strike from the
answer of the accused all allegations relating to the manner and
method of obtaining his presence within the state. That motion was
sustained March 12, 1906, and the prisoner was remanded to await
his trial under the above indictment. The Supreme Court of Idaho
held the action of the Governor of Colorado to be at least
quasi-judicial and, in effect, a determination that
Pettibone was charged with the commission of a crime in the former
state and was a fugitive from its justice; that, after the prisoner
came within the jurisdiction of the demanding state, he could not
raise in its courts the question whether he was or had been, as a
matter of fact, a fugitive from
Page 203 U. S. 195
the justice of that state; that the courts of Idaho had no
jurisdiction to inquire into the acts or motives of the executive
of the state delivering the prisoner; that
"one who commits a crime against the laws of a state, whether
committed by him while in person on its soil, or absent in a
foreign jurisdiction, and acting through some other agency or
medium, has no vested right of asylum in a sister state,"
and the fact
"that a wrong is committed against him in the manner or method
pursued in subjecting his person to the jurisdiction of the
complaining state, and that such wrong is redressable either in the
civil or criminal courts, can constitute no legal or just reason
why he himself should not answer the charge against him when
brought before the proper tribunal."
Ex Parte Moyer, 85 P. 897;
Ex Parte Pettibone,
85 P. 902.
From the judgment of the Supreme Court of Idaho, a writ of error
was prosecuted to this Court. That case is No. 265 on the docket of
the present term, but the record has not been printed. But the
parties agree that the same questions are presented on this appeal
as arise in that case, and as this case is one of urgency in the
affairs of a state, we have acceded to the request that they may be
argued and determined on this appeal.
On the fifteenth of March, 1906, after the final judgment in the
Supreme Court of Idaho, Pettibone made application to the Circuit
Court of the United States sitting in Idaho for a writ of habeas
corpus, alleging that he was restrained of his liberty by the
sheriff of Canyon County, in violation of the Constitution and laws
of the United States. As was done in the Supreme Court of Idaho,
the accused set out numerous facts and circumstances which, he
contended, showed that his personal presence in Idaho was secured
by fraud and connivance on the part of the executive officers and
agents of both Idaho and Colorado, in violation of the
constitutional and statutory provisions relating to fugitives from
justice. Consequently, it was argued, the court in Idaho did not
acquire jurisdiction over his person. The officer having Pettibone
in
Page 203 U. S. 196
custody made return to the writ that he then held the accused
under the bench warrant issued against him. It was stipulated that
the application for the writ of habeas corpus might be taken as his
answer to the return. Subsequently, on motion, that answer was
stricken out by the circuit court as immaterial, the writ of habeas
corpus was quashed, and Pettibone was remanded to the custody of
the state.
Page 203 U. S. 200
MR. JUSTICE HARLAN delivered the opinion of the Court.
As the application for the writ of habeas corpus was, by
stipulation of the parties, taken as the answer of the accused to
the return of the officer holding him in custody, and as that
answer was stricken out by the court below as immaterial, we must,
on this appeal, regard as true all the facts sufficiently alleged
in the application, which, in a legal sense, bear upon the question
whether the detention of the accused by the state authorities was
in violation of the Constitution or laws of the United States.
That application is too lengthy to be incorporated at large in
this opinion. It is sufficient to say that its allegations present
the case of a conspiracy between the Governors of Idaho and
Colorado, and the respective officers and agents of those states,
to have the accused taken from Colorado to Idaho under such
circumstances and in such way as would deprive him, while in
Colorado, of the privilege of invoking the jurisdiction of the
courts there for his protection against wrongful deportation from
the state, it being alleged that the Governor
Page 203 U. S. 201
of Idaho, the Prosecuting Attorney of Canyon County, and the
private counsel who advised them well knew all the time that "he
was not in the State of Idaho on the thirtieth day of December,
1905, nor at any time near that date." The application also alleged
that the accused
"is not and was not a fugitive from justice; that he was not
present in the State of Idaho when the alleged crime was alleged to
have been committed, nor for months prior thereto, nor thereafter,
until brought into the state as aforesaid."
In the forefront of this case is the fact that the appellant is
held in actual custody for trial under an indictment in one of the
courts of Idaho for the crime of murder, charged to have been
committed in that state, against its laws, and it is the purpose of
the state to try the question of his guilt or innocence of that
charge.
Undoubtedly, the circuit court had jurisdiction to discharge the
appellant from the custody of the state authorities if their
exercise of jurisdiction over his person would be in violation of
any rights secured to him by the Constitution or laws of the United
States. But that court had a discretion as to the time and mode in
which, by the exercise of such power, it would, by its process,
obstruct or delay a criminal prosecution in the state court. The
duty of a federal court to interfere, on habeas corpus, for the
protection of one alleged to be restrained of his liberty in
violation of the Constitution or laws of the United States must
often be controlled by the special circumstances of the case, and
unless in some emergency demanding prompt action, the party held in
custody by a state, and seeking to be enlarged, will be left to
stand his trial in the state court, which, it will be assumed, will
enforce -- as it has the power to do equally with a court of the
United States,
Robb v. Connolly, 111 U.
S. 624,
111 U. S. 637
-- any right secured by the supreme law of the land. "When the
state court," this Court has said,
"shall have finally acted upon the case, the circuit court has
still a discretion whether, under all the circumstances then
existing, the accused, if convicted, shall be
Page 203 U. S. 202
put to his writ of error from the highest court of the state, or
whether it will proceed, by writ of habeas corpus, summarily to
determine whether the petitioner is restrained of his liberty in
violation of the Constitution of the United States."
Ex Parte Royall, 117 U. S. 241,
117 U. S.
251-253. To the same effect are numerous cases in this
Court, among which may be named
Ex Parte Fonda,
117 U. S. 516;
New York v. Eno, 155 U. S. 89,
155 U. S. 93;
Cook v. Hart, 146 U. S. 183,
146 U. S. 192;
Minnesota v. Brundage, 180 U. S. 499,
180 U. S. 501;
Reid v. Jones, 187 U. S. 153;
Riggins v. United States, 199 U.
S. 547,
199 U. S. 549.
This rule, firmly established for the guidance of the courts of the
United States, is applicable here, although it appears that the
Supreme Court of Idaho has already decided some of the questions
now raised. But the question of Pettibone's guilt of the crime of
having murdered Steunenberg has not, however, been finally
determined, and cannot be except by a trial under the laws and in
the courts of Idaho. If he should be acquitted by the jury, then no
question will remain as to a violation of the Constitution and laws
of the United States by the methods adopted to secure his personal
presence within the State of Idaho.
The appellant, however, contends that the principle settled in
Ex Parte Royall and other like cases can have application
only where the state has legally acquired jurisdiction over the
person of the accused, and cannot apply when, as is alleged to be
the case here, his presence in Idaho was obtained by fraud and by a
violation of rights guaranteed by the Constitution and laws of the
United States. Under such circumstances, it is contended, no
jurisdiction could legally attach for the purpose of trying the
accused under the indictment for murder.
In support of this view, we have been referred to that clause of
the Constitution of the United States providing that, if
"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."
Art. IV, § 2;
Page 203 U. S. 203
also, to § 5278 of the Revised Statutes, in which it is provided
that,
"whenever the executive authority of any state or territory
demands any person as a fugitive from justice, of the executive
authority of any state or territory to which such person has fled,
and produces a copy of an indictment found or an affidavit made
before a magistrate of any state or territory, charging the person
demanded with having committed treason, felony, or other crime,
certified as authentic by the Governor or Chief Magistrate of the
state or territory from whence the person so charged has fled, it
shall be the duty of the executive authority of the state or
territory to which such person has fled to cause him to be arrested
and secured, and to cause notice of the arrest to be given to the
executive authority making such demand, or to the agent of such
authority appointed to receive the fugitive, and to cause the
fugitive to be delivered to such agent when he shall appear. If no
such agent appears within six months from the time of the arrest,
the prisoner may be discharged. All costs or expenses incurred in
the apprehending, securing, and transmitting such fugitive to the
state or territory making such demand shall be paid by such state
or territory."
Looking first at what was alleged to have occurred in the State
of Colorado touching the arrest of the petitioner and his
deportation from that state, we do not perceive that anything done
there, however hastily or inconsiderately done, can be adjudged to
be in violation of the Constitution or laws of the United States.
We pass by, both as immaterial and inappropriate, any consideration
of the motives that induced the action of the Governor of Colorado.
This Court will not inquire as to the motives which guided the
chief magistrate of a state when executing the functions of his
office. Manifestly, whatever authority may have been conferred upon
the Governor of Colorado by the Constitution or laws of his state,
he was not required, indeed, was not authorized, by the
Constitution or laws of the United States to have the petitioner
arrested unless, within the meaning of such Constitution
Page 203 U. S. 204
and laws, he was a fugitive from the justice of Idaho. Therefore
he would not have violated his duty if it had been made a condition
of surrendering the petitioner that evidence be furnished that he
was a fugitive from justice within the meaning of the Constitution
of the United States. Upon the Governor of Colorado rested the
responsibility of determining, in some proper mode, what the fact
was. But he was not obliged to demand proof of such fact by
evidence apart from the requisition papers. As those papers showed
that the accused was regularly charged by indictment with the crime
of murder committed in Idaho, and was a fugitive from its justice,
the Governor of Colorado was entitled to accept such papers,
coming, as they did from the Governor of another state, as
prima facie sufficient for a warrant of arrest. His
failure to require independent proof of the fact that petitioner
was a fugitive from justice cannot be regarded as an infringement
of any right of the petitioner under the Constitution or laws of
the United States.
Ex Parte Reggel, 114 U.
S. 642,
114 U. S.
652-653. In
Munsey v Clough, 196 U.
S. 364,
196 U. S. 372,
this Court said that the issuing of a warrant of arrest by the
Governor of the surrendering state,
"with or without a recital therein that the person demanded is a
fugitive from justice, must be regarded as sufficient to justify
the removal until the presumption in favor of the legality and
regularity of the warrant is overthrown by contrary proof in a
legal proceeding to review the action of the Governor.
Roberts
v. Reilly, 116 U. S. 80,
116 U. S.
95;
Hyatt v. New York, 188 U. S.
691."
See also In re Keller, 36 F. 681, 686.
But the petitioner contends that his arrest and deportation from
Colorado was, by fraud and connivance, so arranged and carried out
as to deprive him of an opportunity to prove, before the Governor
of that state, that he was not a fugitive from justice, as well as
opportunity to appeal to some court in Colorado to prevent his
illegal deportation from its territory. If we should assume, upon
the present record, that the facts are as alleged, it is not
perceived that they make a case of the
Page 203 U. S. 205
violation of the Constitution or laws of the United States. It
is true, as contended by the petitioner, that if he was not a
fugitive from justice within the meaning of the Constitution, no
warrant for his arrest could have been properly or legally issued
by the Governor of Colorado. It is equally true that, even after
the issuing of such a warrant, before his deportation from
Colorado, it was competent for a court, federal or state, sitting
in that state, to inquire whether he was in fact a fugitive from
justice and, if found not to be, to discharge him from the custody
of the Idaho agent, and prevent his deportation from Colorado.
Robb v. Connolly, 111 U. S. 624,
111 U. S. 639;
Ex Parte Reggel,supra; Hyatt v. New York, 188 U.
S. 691,
188 U. S. 719;
Munsey v. Clough, 196 U. S. 364,
196 U. S. 374.
But it was not shown by proof before the Governor of Colorado that
the petitioner, alleged in the requisition papers to be a fugitive
from justice, was not one, nor was the jurisdiction of any court
sitting in that state invoked to prevent his being taken out of the
state and carried to Idaho. That he had no reasonable opportunity
to present these facts before being taken from Colorado constitutes
no legal reason why he should be discharged from the custody of the
Idaho authorities. No obligation was imposed by the Constitution or
laws of the United States upon the agent of Idaho to so time the
arrest of the petitioner, and so conduct his deportation from
Colorado, as to afford him a convenient opportunity, before some
judicial tribunal sitting in Colorado, to test the question whether
he was a fugitive from justice, and, as such, liable, under the act
of Congress to be conveyed to Idaho for trial there. In England, in
the case of one arrested for the purpose of deporting him to
another country, it is provided that there shall be no surrender of
the accused to the demanding country until after the expiration of
a specified time from the arrest, during which period the prisoner
has an opportunity to institute habeas corpus proceedings.
Extradition Act of 1870, 33 and 34 Vict. c. 52, § 11; 2 Butler on
the Treaty-Making Power, § 436; 1 Moore, Extradition, 741, 742.
There is no similar act of Congress in respect of a person
Page 203 U. S. 206
arrested in one of the states of the Union as a fugitive from
the justice of another state. The speediness, therefore, with which
the Idaho agent removed the accused from Colorado cannot be urged
as a violation of a constitutional right, and constitutes no legal
reason for discharging him from the custody of the State of
Idaho.
We come now to inquire whether the petitioner was entitled to
his discharge upon making proof in the Circuit Court of the United
States sitting in Idaho that he was brought into that state as a
fugitive from justice when he was not, in fact such a fugitive. Of
course it cannot be contended that the Circuit Court sitting in
Idaho could rightfully discharge the petitioner upon proof simply
that he did not commit the crime of murder charged against him. His
guilt or innocence of that charge is within the exclusive
jurisdiction of the Idaho state court. The constitutional and
statutory provisions referred to were based upon the theory that,
as between the states, the proper place for the inquiry into the
question of the guilt or innocence of an alleged fugitive from
justice is in the courts of the state where the offense is charged
to have been committed. The question, therefore, in the court below
was not whether the accused was guilty or innocent, but whether the
Idaho court could properly be prevented from proceeding in the
trial of that issue upon proof's being made in the circuit court of
the United States sitting in that state that the petitioner was not
a fugitive from justice, and not liable in virtue of the
Constitution and laws of the United States to arrest in Colorado
under the warrant of its Governor, and carried into Idaho. As the
petitioner is within the jurisdiction of Idaho, and is held by its
authorities for trial, are the particular methods by which he was
brought within her limits at all material in the proceeding by
habeas corpus?
It is contended by the state that this question was determined
in its favor by the former decisions of this Court. This is
controverted by the petitioner, and we must therefore, and
particularly because of the unusual character of this case and
Page 203 U. S. 207
the importance of the questions involved, see what this Court
has heretofore adjudged.
In
Ker v. Illinois, 119 U. S. 436, it
appeared that at the trial in an Illinois court of a person charged
with having committed a crime against the laws of that state, the
accused sought, by plea in abatement to defeat the jurisdiction of
the court upon the ground that, in violation of law, he had been
seized in Peru and forcibly brought against his will into the
United States and delivered to the authorities of Illinois, all of
which the accused contended was in violation not only of due
process of law as guaranteed by the Fourteenth Amendment, but of
the treaty between the United States and Peru negotiated in 1870
and proclaimed in 1874. One of the articles of that treaty bound
the contracting countries, upon a requisition by either country, to
deliver up to justice persons who, being accused or convicted of
certain named crimes committed within the jurisdiction of the
requiring party, should seek an asylum or should be found within
the territories of the other, the fact of the commission being so
established
"as that the laws of the country in which the fugitive or the
person so accused shall be found would justify his or her
apprehension and commitment for trial if the crime had been there
committed."
18 Stat. 719, 720. The plea stated, among other things, that the
defendant protested against his arrest, and was refused
opportunity, from the time of his being seized in Peru until he was
delivered to the authorities of Illinois, of communicating with any
person, or seeking any advice or assistance in regard to procuring
his release by legal process or otherwise.
The court overruled the plea of abatement, and the trial in the
state court proceeded, resulting in a verdict of guilty. The
judgment was affirmed by the Supreme Court of Illinois, and this
Court affirmed, upon writ of error, the judgment of the latter
court. It was held by the unanimous judgment of this Court that, so
far as any question of federal right was involved, no error was
committed by the state court, and that, notwithstanding the illegal
methods pursued in bringing
Page 203 U. S. 208
the accused within the jurisdiction of Illinois, his trial in
the state court did not involve a violation of the due process
clause of the Constitution nor any article in the treaty with Peru,
although the case was a clear one "of kidnapping within the
dominion of Peru, without any pretense of authority under the
treaty or from the government of the United States." The principle
upon which the judgment rested was that, when a criminal is brought
or is in fact within the jurisdiction and custody of a state,
charged with a crime against its laws, the state may, so far as the
Constitution and laws of the United States are concerned, proceed
against him for that crime, and need not inquire as to the
particular methods employed to bring him into the state. The case,
the court said,
"does not stand, when 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 or in any state through which he was
carried in the progress of this extradition to test the authority
by which he was held."
In meeting the contention that the accused Ker, by virtue of the
treaty with Peru, acquired by his residence a right of asylum, this
Court said:
"There is no language in this treaty, or in any other treaty
made by this country on the subject of extradition of which we are
aware, which says in terms that a party fleeing from the United
States to escape punishment for crime becomes thereby entitled to
an asylum in the country to which he has fled -- indeed, the
absurdity of such a proposition would at once prevent the making of
a treaty of that kind. . . . It is idle, therefore, to claim that,
either by express terms or by implication, there is given to a
fugitive from justice in one of these countries any right to remain
and reside in the other, and if the right of asylum means anything,
it must mean this. The right of the government of Peru voluntarily
to give a party in Ker's condition an asylum in that country is
quite a different thing from the right in him to demand and insist
upon security in such an asylum. The treaty, so far as it regulates
the right of asylum at all, is intended to limit this right in the
case of one who is proved to
Page 203 U. S. 209
be a criminal fleeing from justice, so that, on proper demand
and proceedings had therein, the government of the country of the
asylum shall deliver him up to the country where the crime was
committed. And to this extent, and to this alone, the treaty does
regulate or impose a restriction upon the right of the government
of the country of the asylum to protect the criminal from removal
therefrom. . . . We think it very clear, therefore, that, in
invoking the jurisdiction of this Court upon the ground that the
prisoner was denied a right conferred upon him by a treaty of the
United States, he has failed to establish the existence of any such
right."
If Ker, by virtue of the treaty with Peru and because of his
forcible and illegal abduction from that country, did not acquire
an exemption from the criminal process of the courts of Illinois,
whose laws he had violated, it is difficult to see how Pettibone
acquired, by virtue of the Constitution and laws of the United
States, an exemption from prosecution by the State of Idaho, which
has custody of his person.
An instructive case on this subject is
Mahon v.
Justice, 127 U. S. 700. The
Governor of Kentucky made a requisition upon the Governor of West
Virginia for Mahon, who was charged with the crime of murder in
Kentucky and was alleged to have fled from its jurisdiction and
taken refuge in West Virginia. While the two Governors were in
correspondence on the subject, a body of armed men, without warrant
or other legal process, arrested Mahon in West Virginia, and by
force and against his will conveyed him out of West Virginia and
delivered him to the jailer of Pike County, Kentucky, in the courts
of which he stood indicted for murder. Thereupon the Governor of
West Virginia, on behalf of that state, applied to the District
Court of the United States for the Kentucky District for a writ of
habeas corpus and his return to the jurisdiction of West Virginia.
This Court, after observing that the states of the Union were not
absolutely sovereign and could not declare war or authorize
reprisals on other states, and that their ability to prevent the
forcible abduction of persons from
Page 203 U. S. 210
their territory consists solely in their power to punish all
violations of their criminal laws committed within it, whether by
their own citizens or by citizens of other states, said:
"If such violators have escaped from the jurisdiction of the
state invaded, their surrender can be secured upon proper demand on
the executive of the state to which they have fled. The surrender
of the fugitives in such cases to the state whose laws have been
violated is the only aid provided by the laws of the United States
for the punishment of depredations and violence committed in one
state by intruders and lawless bands from another state. The
offenses committed by such parties are against the state, and the
laws of the United States merely provide the means by which their
presence can be secured in case they have fled from its justice. No
mode is provided by which a person unlawfully abducted from one
state to another can be restored to the state from which he was
taken if held upon any process of law for offenses against the
state to which he has been carried. If not thus held, he can, like
any other person wrongfully deprived of his liberty, obtain his
release on habeas corpus. Whether Congress might not provide for
the compulsory restoration to the state of parties wrongfully
abducted from its territory upon application of the parties, or of
the state, and whether such provision would not greatly tend to the
public peace along the borders of the several states, are not
matters for present consideration. It is sufficient now that no
means for such redress through the courts of the United States have
as yet been provided. The abduction of Mahon by Phillips and his
aids was made, as appears from the return of the respondent to the
writ, and from the findings of the court below, without any warrant
or authority from the Governor of West Virginia. It is true that
Phillips was appointed by the Governor of Kentucky as agent of the
state to receive Mahon upon his surrender on the requisition, but,
no surrender having been made, the arrest of Mahon and his
abduction from the state were lawless and indefensible acts, for
which Phillips and his aids may justly be
Page 203 U. S. 211
punished under the laws of West Virginia. The process emanating
from the Governor of Kentucky furnished no ground for charging any
complicity on the part of that state in the wrong done to the State
of West Virginia."
Again:
"It is true also that the accused had the right, while in West
Virginia, of insisting that he should not be surrendered to the
Governor of Kentucky by the Governor of West Virginia except in
pursuance of the acts of Congress, and that he was entitled to
release from any arrest in that state not made in accordance with
them, but, having been subsequently arrested in Kentucky under the
writs issued on the indictments against him, the question is not as
to the validity of the proceeding in West Virginia, but as to the
legality of his detention in Kentucky. There is no comity between
the states by which a person held upon an indictment for a criminal
offense in one state can be turned over to the authorities of
another, though abducted from the latter. If there were any such
comity, its enforcement would not be a matter within the
jurisdiction of the courts of the United States. By comity, nothing
more is meant than that courtesy on the part of one state by which,
within her territory, the laws of another state are recognized and
enforced, or another state is assisted in the execution of her
laws. From its nature, the courts of the United States cannot
compel its exercise when it is refused; it is admissible only upon
the consent of the state, and when consistent with her own
interests and policy.
Bank of Augusta v. Earle, 13
Pet. 519,
38 U. S. 589; Story,
Confl.Laws, § 30. The only question, therefore, 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 review of the authorities, including the case of
Ker
v. Illinois, above cited, the court concluded:
"So, in this case,
Page 203 U. S. 212
it is contended that, because, under the Constitution and laws
of the United States, a fugitive from justice from one state to
another can be surrendered to the state where the crime was
committed, upon proper proceedings taken, he has the right of
asylum in the state to which he has fled, unless removed in
conformity with such proceedings, and that this right can be
enforced in the courts of the United States. But the plain answer
to this contention is that the laws of the United States do not
recognize any such right of asylum as is here claimed on the part
of a fugitive from justice in any state to which he has fled, nor
have they, as already stated, made any provision for the return of
parties who, by violence and without lawful authority, have been
abducted from a state. There is therefore no authority in the
courts of the United States to act upon any such alleged right. In
Ker v. Illinois, the court said that the question of how
far the forcible seizure of the defendant in another country, and
his conveyance by violence, force, or fraud to this country, could
be made available to resist trial in the state court for the
offense charged upon him was one which it did not feel called upon
to decide, for in that transaction it did not see that the
Constitution or laws or treaties of the United States guaranteed to
him any protection. So, in this case, we say that, whatever effect
may be given by the state court to the illegal mode in which the
defendant was brought from another state, no right secured under
the Constitution or laws of the United States was violated by his
arrest in Kentucky and imprisonment there upon the indictments
found against him for murder in that state."
These principles determine the present case, and require an
affirmance of the judgment of the circuit court. It is true the
decision in the
Mahon case was by a divided court, but its
authority is nonetheless controlling. The principle upon which it
rests has been several times recognized and reaffirmed by this
Court, and is no longer to be questioned. It was held in
Cook
v. Hart, 146 U. S. 183,
146 U. S. 192,
that the cases of
Ker v. Illinois and
Mahon v.
Justice established these propositions:
Page 203 U. S. 213
"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;"
in
Lascelles v. Georgia, 148 U.
S. 537,
148 U. S. 543,
that it was settled in the
Ker and
Mahon cases
that,
"except in the case of a fugitive surrendered by a foreign
government, there is nothing in the Constitution, treaties, or laws
of the United States which exempts an offender, brought before the
courts of a state for an offense against its laws, from trial and
punishment, even though brought from another state by unlawful
violence, or by abuse of legal process;"
and in
Adams v. New York, 192 U.
S. 585,
192 U. S. 596
(the same cases being referred to), that
"if a person is brought within the jurisdiction of one state
from another, or from a foreign country, by the unlawful use of
force, which would render the officer liable to a civil action, or
in a criminal proceeding, because of the forcible abduction, such
fact would not prevent the trial of the person thus abducted in the
state wherein he had committed an offense."
See also In re Johnson, 167 U.
S. 120,
167 U. S. 127, in
which the Court recognized the principle that, when a party in a
civil suit has, by some trick or device, been brought within the
jurisdiction of a court, he may have the process served upon him
set aside, but that a different rule prevails in criminal cases
involving the public interests.
To the above citations we may add
In re Moore, 75 F.
821, in which it appeared or was alleged that one accused of crime
against the laws of a state, and in the custody of its authorities
for trial, was brought back from another state as a fugitive from
justice by means of an extradition warrant procured by false
affidavits. In his application to the circuit court of the United
States for a writ of habeas corpus, the petition
Page 203 U. S. 214
stated facts and circumstances tending to show that he was not a
fugitive from justice. The application was dismissed. After stating
that the executive warrant issued by the surrendering state had
performed its office, and that the petitioner was not held in
virtue of it, the court said:
"His imprisonment is not illegal unless his extradition makes it
so, and an illegal extradition is no greater violation of his
rights of person than his forcible abduction. If a 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, as held in
Mahon v. Justice,
127 U.
S. 712, and in
Ker v. Illinois, 119 U. S.
437, no more is the objection allowed if the abduction
has been accomplished under the forms of law. The conclusion is the
same in each case. The act complained of does not relate to the
restraint from which the petitioner seeks to be relieved, but to
the means by which he was brought within the jurisdiction of the
court under whose process he is held. It is settled that a party is
not excused from answering to the state whose laws he has violated
because violence has been done him in bringing him within the
state. Moreover, if any injury was done in this case in issuing the
requisition upon the State of Washington without grounds therefor,
the injury was not to the petitioner, but to that state whose
jurisdiction was imposed upon by what was done. The United States
do not recognize any right of asylum in the state where a party
charged with a crime committed in another state is found, nor have
they made any provision for the return of parties who, by violence
and without lawful authority, have been abducted from a state, and,
whatever effect may be given by a state court to the illegal mode
in which a defendant is brought from another state, no right
secured under the Constitution and laws of the United States is
violated by his arrest and imprisonment for crimes committed in the
state into which he is brought.
Mahon v. Justice,
127 U.
S. 715."
The principle announced in the
Mahon and other cases
above
Page 203 U. S. 215
cited was not a new one. It has been distinctly recognized in
the courts of England and in many states of the Union. In
Ex
Parte Scott (1829) 9 B. & C. 446, one accused of crime
against the laws of England, and who was in custody for trial
sought to be discharged upon habeas corpus because she had been
improperly apprehended in a foreign country. Lord Tenterden, C.J.,
said:
"The question therefore is this: whether, if a person charged
with a crime is found in this country, it is the duty of the court
to take care that such a party shall be amenable to justice, or
whether we are to consider the circumstances under which she was
brought here. I thought, and still continue to think, that we
cannot inquire into them. If the act complained of were done
against the law of the foreign country, that country might have
vindicated its own law. If it gave her a right of action, she may
sue upon it."
Some of the American cases to the same general effect are cited
in
Mahon v. Justice, namely:
State v. Smith, 1
Bailey 283;
State v. Brewster, 7 Vt. 118;
State v.
Ross, 21 Ia. 467.
See also Dow's Case, 18 Pa. 37;
State v. Kealy, 89 Ia. 94, 97;
Ex Parte Barker,
87 Ala. 4, 8;
People v. Pratt, 78 Cal. 345, 349; Church on
Habeas Corpus, § 483, and authorities cited in notes, and note to
Fetter's Case, 57 Am. Dec. 389, 400.
It is said that the present case is distinguishable from the
Mahon case in the fact that the illegal abduction
complained of in the latter was by persons who neither acted nor
assumed to act under the authority of the state into the custody of
whose authorities they delivered Mahon, whereas, in this case, it
is alleged that Idaho secured the presence of Pettibone within its
limits through a conspiracy on the part of its Governor and other
officers. This difference in the cases is not, we think, of any
consequence as to the principle involved; for the question now is
-- and such was the fundamental question in
Mahon's case
-- whether a circuit court of the United States when asked, upon
habeas corpus, to discharge a person held in actual custody by a
state for trial in one of its courts
Page 203 U. S. 216
under an indictment charging a crime against its laws, can
properly take into account the methods whereby the state obtained
such custody. That question was determined in the negative in the
Ker and
Mahon cases. It was there adjudged that,
in such a case, neither the Constitution nor laws of the United
States entitled the person so held to be discharged from custody
and allowed to depart from the state. If, as suggested, the
application of these principles may be attended by mischievous
consequences involving the personal safety of individuals within
the limits of the respective states, the remedy is with the
lawmaking department of the government. Congress has long been
informed by judicial decisions as to the state of the law upon this
general subject.
In this connection, it may be well to say that we have not
overlooked the allegation that the Governor and other officers of
Idaho well knew, at the time the requisition was made upon the
Governor of Colorado, that Pettibone was not in Idaho on December
30, 1905, nor at any time near that date, and had the purpose in
all they did to evade the constitutional and statutory provisions
relating to fugitives from justice. To say nothing of the
impropriety of any such facts being made the subject of judicial
inquiry in a federal court, the issue thus attempted to be
presented was wholly immaterial. Even were it conceded for the
purposes of this case that the Governor of Idaho wrongfully issued
his requisition and that the Governor of Colorado erred in honoring
it and in issuing his warrant of arrest, the vital fact remains
that Pettibone is held by Idaho in actual custody for trial under
an indictment charging him with crime against its laws, and he
seeks the aid of the circuit court to relieve him from custody, so
that he may leave that state and thereby defeat the prosecution
against him without a trial. In the present case, it is not
necessary to go behind the indictment and inquire as to how it
happened that he came within reach of the the process of the Idaho
court in which the indictment is pending. And any investigation as
to the motives which induced the action taken by
Page 203 U. S. 217
the Governors of Idaho and Colorado would, as already suggested,
be improper as well as irrelevant to the real question to be now
determined. It must be conclusively presumed that those officers
proceeded throughout this affair with no evil purpose and with no
other motive than to enforce the law.
We perceive no error in the action of the Circuit Court, and its
final order is
Affirmed.
MR. JUSTICE McKENNA, dissenting:
I am constrained to dissent from the opinion and judgment of the
Court. The principle announced, as I understand it, is that
"a circuit court of the United States, when asked upon habeas
corpus, to discharge a person held in actual custody by a state for
trial in one of its courts under an indictment charging a crime
against its laws, cannot properly take into account the methods
whereby the state obtained such custody."
In other words, and to illuminate the principle by the light of
the facts in this case (facts, I mean, as alleged, and which we
must assume to be true for the purpose of our discussion), that the
officers of one state may falsely represent that a person was
personally present in the state and committed a crime there, and
had fled from its justice, may arrest such person and take him from
another state, the officers of the latter knowing of the false
accusation, and conniving in and aiding its purpose, thereby
depriving him of an opportunity to appeal to the courts, and that
such person cannot invoke the rights guaranteed to him by the
Constitution and statutes of the United States in the state to
which he is taken. And this, it is said, is supported by the cases
of
Ker v. Illinois, 119 U. S. 436, and
Mahon v. Justice, 127 U. S. 700.
These cases, extreme as they are, do not justify, in my judgment,
the conclusion deduced from them. In neither case was the state the
actor in the wrongs that brought within its confines the accused
person. In the case at bar, the states, through their officers, are
the
Page 203 U. S. 218
offenders. They, by an illegal exertion of power, deprived the
accused of a constitutional right. The distinction is important to
be observed. It finds expression in
Mahon v. Justice. But
it does not need emphasizing. Kidnapping is a crime, pure and
simple. It is difficult to accomplish, hazardous at every step. All
of the officers of the law are supposed to be on guard against it.
All of the officers of the law may be invoked against it. But how
is it when the law becomes the kidnapper? When the officers of the
law, using its forms, and exerting its power, become abductors?
This is not a distinction without a difference -- another form of
the crime of kidnapping, distinguished only from that committed by
an individual by circumstances. If a state may say to one within
her borders and upon whom her process is served, "I will not
inquire how you came here; I must execute my laws and remit you to
proceedings against those who have wronged you," may she so plead
against her own offenses? May she claim that, by mere physical
presence within her borders, an accused person is, within her
jurisdiction, denuded of his constitutional rights though he has
been brought there by her violence? And constitutional rights the
accused in this case certainly did have, and valuable ones. The
foundation of extradition between the states is that the accused
should be a fugitive from justice from the demanding state, and he
may challenge the fact by habeas corpus immediately upon his
arrest. If he refute the fact, he cannot be removed.
Hyatt v.
New York, 188 U. S. 691. And
the right to resist removal is not a right of asylum. To call it so
in the state where the accused is is misleading. It is the right to
be free from molestation. It is the right of personal liberty in
its most complete sense. And this right was vindicated in
Hyatt
v. New York, and the fiction of a constructive presence in a
state and a constructive flight from a constructive presence
rejected. This decision illustrates at once the value of the right
and the value of the means to enforce the right. It is to be hoped
that our criminal jurisprudence will not need for its efficient
administration the
Page 203 U. S. 219
destruction of either the right or the means to enforce it. The
decision in the case at bar, as I view it, brings us perilously
near both results. Is this exaggeration? What are the facts in the
case at bar as alleged in the petition, and which it is conceded
must be assumed to be true? The complaint, which was the foundation
of the extradition proceedings, charged against the accused the
crime of murder on the thirtieth of December, 1905, at Caldwell, in
the County of Canyon, State of Idaho, by killing one Frank
Steunenberg by throwing an explosive bomb at and against his
person. The accused avers in his petition that he had not been "in
the State of Idaho, in any way, shape, or form, for a period of
more than ten years" prior to the acts of which he complained, and
that the Governor of Idaho knew accused had not been in the state
the day the murder was committed, "nor at any time near that day."
A conspiracy is alleged between the Governor of the State of Idaho
and his advisers, and that the Governor of the State of Colorado
took part in the conspiracy, the purpose of which was
"to avoid the Constitution of the United States and the act of
Congress made in pursuance thereof, and to prevent the accused from
asserting his constitutional right under clause 2, sec. 2, of
Article IV of the Constitution of the United States and the act
made pursuant thereof."
The manner in which the alleged conspiracy had been executed was
set out in detail. It was in effect that the agent of the State of
Idaho arrived in Denver Thursday, February 15, 1906, but it was
agreed between him and the officers of Colorado that the arrest of
the accused should not be made until sometime in the night of
Saturday, after business hours -- after the courts had closed and
judges and lawyers had departed to their homes; that the arrest
should be kept a secret, and the body of the accused should be
clandestinely hurried out of the State of Colorado with all
possible speed, without the knowledge of his friends or his
counsel; that he was at the usual place of business during
Thursday, Friday, and Saturday, but no attempt was made to arrest
him until 11:30 o'clock P.M. Saturday,
Page 203 U. S. 220
when his house was surrounded and he arrested. Moyer was
arrested under the same circumstances at 8:45, and he and accused
"thrown into the county jail of the City and County of Denver." It
is further alleged that, in pursuance of the conspiracy, between
the hours of five and six o'clock on Sunday morning, February 18,
the officers of the state and "certain armed guards, being a part
of the forces of the militia of the State of Colorado," provided a
special train for the purpose of forcibly removing him from the
State of Colorado, and between said hours he was forcibly placed on
said train and removed with all possible speed to the State of
Idaho; that, prior to his removal and at all times after his
incarceration in the jail at Denver, he requested to be allowed to
communicate with his friends and his counsel and his family, and
the privilege was absolutely denied him. The train, it is alleged,
made no stop at any considerable station, but proceeded at great
and unusual speed, and that he was accompanied by and surrounded
with armed guards, members of the state militia of Colorado, under
the orders and directions of the adjutant general of the state.
I submit that the facts in this case are different in kind, and
transcend in consequences, those in the cases of
Ker v.
Illinois and
Mahon v. Justice, and differ from and
transcend them as the power of a state transcends the power of an
individual. No individual or individuals could have accomplished
what the power of the two states accomplished; no individual or
individuals could have commanded the means and success, could have
made two arrests of prominent citizens by invading their homes,
could have commanded the resources of jails, armed guards, and
special trains, could have successfully timed all acts to prevent
inquiry and judicial interference.
The accused, as soon as he could have done so, submitted his
rights to the consideration of the courts. He could not have done
so in Colorado, he could not have done so on the way from Colorado.
At the first instant that the State of Idaho relaxed its
restraining power, he invoked the aid of
Page 203 U. S. 221
habeas corpus successively of the supreme court of the state and
of the circuit court of the United States. He should not have been
dismissed from court, and the action of the circuit court in so
doing should be reversed.
I also dissent in Nos. 250, 251, 265, 266, and 267.
See
p.
203 U. S. 222,
post.