No mode is provided by the Constitution and laws of the United
States by which a person, unlawfully abducted from one state to
another and held in the latter state upon process of law for an
offense against the state, can be restored to the state from which
he was abducted.
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 state, although abducted
from the latter.
A, being indicted in Kentucky for felony, escaped to West
Virginia. While the Governor of West Virginia was considering an
application from the Governor of Kentucky for his surrender as a
fugitive from justice, he was forcibly abducted to Kentucky, and
when there was seized by the Kentucky authorities under legal
process, and put in jail and held to answer the indictment.
Held that he was not entitled to be discharged from
custody under a writ of habeas corpus from the circuit court of the
United States.
The Court stated the case as follows:
On the 9th of February, 1888, the Governor of West Virginia, on
behalf of that state, presented to the District Court of the United
States for the District of Kentucky a petition, representing that
during the month of September, 1887, a requisition was made upon
him as governor aforesaid, by the Governor of Kentucky, for Plyant
Mahon, alleged to have committed murder in the latter state and to
have fled from its justice and to be then at large in West
Virginia; that pending correspondence between the two governors,
and the consideration of legal questions growing out of the
requisition, and during the month of December, 1887, or January,
1888, the said Plyant Mahon, while residing in West Virginia, was,
in violation of her laws, and of the Constitution and laws of the
United States and without warrant or other legal process, arrested
by a body of armed men from Kentucky, and by force and against his
will, conveyed out of the State of
Page 127 U. S. 701
West Virginia into the County of Pike, in the State of Kentucky,
and there confined in the common jail of the county, where he has
been ever since, and deprived of his liberty by the keeper
thereof.
The petitioner further represented that on the 1st of February,
1888, he, as Governor of West Virginia and on her behalf, made a
requisition upon the Governor of Kentucky that Plyant Mahon be
released from confinement, set at large, and returned in safety to
the State of West Virginia, and that the demand was, on the 4th of
that month, refused on the ground, among others, that the questions
involved were judicial, and not executive. The petitioner,
therefore, in alleged vindication of the rights of the State of
West Virginia and of every citizen thereof and especially of the
said Plyant Mahon, thus confined and deprived of his liberty, to
the end that due process of law secured by both the Constitution of
the United States and the Constitution of the State of West
Virginia, and the laws made in pursuance thereof, might be
respected and enforced, prayed that the writ of habeas corpus be
granted, directed to the keeper of the jail, commanding him to
produce the body of said Plyant Mahon, together with the cause of
his detention, before the judge of the court at such time and place
as might be designated, and that judgment be rendered that said
Plyant Mahon be discharged from said confinement and custody and be
safely returned within the jurisdiction of the State of West
Virginia. At the same time, another petition was presented to the
court by one John A. Sheppard, representing that he was a citizen
of West Virginia and setting forth substantially the facts
contained in the petition of the governor, and praying for a like
writ of habeas corpus. Subsequently the name of Plyant Mahon was
substituted for that of John A. Sheppard, and the proceedings on
the petition were conducted in his name.
The court ordered the writ to issue, directed to the jailer of
Pike County, requiring him to produce the body of Mahon before the
District Court of the United States in the City of Louisville on
the 20th of the month, and there to abide such order as might be
made in the premises. The jailer of the
Page 127 U. S. 702
county, Abner Justice, made a return to the writ substantially
as follows: that he held Plyant Mahon in custody and confined in
the jail of Pike County by virtue of and in obedience to three
writs issued by the clerk of the criminal court of the county,
under its order, each for the arrest of Mahon to answer an
indictment pending against him and others for the crime of willful
murder, alleged to have been committed in that county, a crime for
the trial of which that court had full jurisdiction, and commanding
the officer arresting Mahon to deliver him to the jailer of the
county, copies of which writs were annexed to the return; that
under the writ of habeas corpus, he was proceeding to the City of
Louisville to produce the body of Mahon before the United States
district court there when he was met on his way by the United
States marshal of the district of Kentucky, who, by virtue of the
order of the district court, took Plyant Mahon into his custody. He
further returned that three indictments against Mahon and others
for willful murder were found by the grand jury of Pike County,
Kentucky, and returned into the circuit court of said county at its
September term, 1882, at which time that court had jurisdiction of
the crime charged; that by order of the court, made at each
subsequent term, writs were issued by the clerk thereof for the
arrest of Plyant Mahon to answer the indictments, until the
criminal court of the county was established by act of the General
Assembly of Kentucky in 1884, by which the jurisdiction previously
vested in the circuit court was transferred to and vested in said
criminal court; that by orders of this latter court from term to
term, writs were issued by the clerk thereof for the arrest of
Mahon to answer the indictments; but none of them were executed
upon him until January 12, 1888, when he was arrested in Pike
County by the sheriff thereof and delivered by him to the
respondent, jailer of said county, in obedience to the writs which
were issued, and under the command and authority of which he was
held by the respondent as jailer in custody in the jail of said
county, when the writ of habeas corpus was served upon him.
The jailer subsequently, by leave of the court, made a
Page 127 U. S. 703
further return in which he stated that a requisition was made by
the Governor of Kentucky upon the Governor of West Virginia for the
arrest and rendition to Kentucky of said Plyant Mahon as alleged in
the governor's petition; that it was accompanied by a copy of the
indictments referred to, certified by the Governor of Kentucky to
be authentic; that at the same time the governor appointed on Frank
Phillips as the agent of the state to receive and bring to the
State of Kentucky the said Mahon, as provided by law in such cases;
that on the 30th of September, 1887, the Governor of West Virginia
returned said requisition to the Governor of Kentucky, informing
him that an affidavit, as required by the statute of West Virginia,
should accompany the requisition before the same could be complied
with; that thereafter the Governor of Kentucky returned the
requisition to the Governor of West Virginia, accompanied by the
affidavit required; that afterwards, about the 12th of January,
1888, Frank Phillips and others, with force and arms, violently
seized the said Mahon in the State of West Virginia and brought him
against his will into the County of Pike in the State of Kentucky,
where the writs mentioned in the respondent's original return were
executed upon him by the Sheriff of Pike County; that at that time,
no warrant for the arrest of Mahon had been issued or ordered to be
issued by the Governor of West Virginia in compliance with said
requisition, and afterwards, on the 30th of January, 1888, he
informed the Governor of Kentucky that he declined to issue his
warrant for the arrest of Plyant Mahon, in compliance with the
requisition made upon him, because he had become satisfied, upon
investigation of the facts, that Mahn was not guilty of the crime
charged against him in the indictments, and that subsequently, on
the 1st of February, 1888, the Governor of West Virginia made upon
the Governor of Kentucky a demand for the release of Mahon from the
jail of the County of Pike and his safe conduct back into West
Virginia, with which demand the Governor of Kentucky declined to
comply on the ground that Mahon was in the custody of the judicial
department of the commonwealth, and that the question of his
release upon the grounds alleged in the demand
Page 127 U. S. 704
was one which the courts alone could determine, and that the
adjudication thereof was not one within the purview of his powers
and duties as governor. The facts thus detailed were established
before the court on the hearing upon the writ, and are contained in
its findings.
On the 3d of March, the court denied the motion for the
discharge of Plyant Mahon and ordered the marshal to return him to
the jailer of Pike County. From this order an appeal was taken to
the circuit court of the United States and there affirmed. To
review the latter order the case is brought here.
MR. JUSTICE FIELD, after stating the facts as above reported,
delivered the opinion of the Court.
The Governor of West Virginia, in his application on behalf of
the state for the writ of habeas corpus to obtain the discharge of
Mahon and his return to that state, proceeded upon the theory that
it was the duty of the United States to secure the inviolability of
the territory of the state from the 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, and that this obligation could be enforced by means
of the writ of habeas corpus, as the court in discharging the party
abducted could also direct his return to the state from which he
was taken, or his delivery to persons who would see that its order
in that respect was carried out. If the states of the union were
possessed of an absolute sovereignty, instead of a limited one,
they could demand of each other reparation for an unlawful invasion
of their territory and the surrender of parties abducted, and of
parties committing the offense, and, in case of refusal to comply
with the demand, could resort to reprisals, or take any other
measures they might deem necessary as redress for the past and
security
Page 127 U. S. 705
for the future. But the states of the union are not absolutely
sovereign. Their sovereignty is qualified and limited by the
conditions of the federal Constitution. They cannot declare war or
authorize reprisals on other states. Their ability to prevent the
forcible abduction of persons from 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.
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 offense 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
Page 127 U. S. 706
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
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.
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's Conflict of Law § 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. Section 753 of the Revised
Statutes declares that
"The writ
Page 127 U. S. 707
of habeas corpus shall in no case extend to a prisoner in jail
unless where he is in custody under or by color of the authority of
the United States, or is committed for trial before some court
thereof, or is in custody for an act done or omitted in pursuance
of a law of the United States, or of an order, process, or decree
of a court or judge thereof, or is in custody in violation of the
Constitution or of a law or treaty of the United States."
To bring the present case within the terms of this section, it
is contended that the detention of the appellant is in violation of
the provisions of the Fourteenth Amendment of the Constitution,
that
"No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States, nor
shall any state deprive any person of life, liberty, or property,
without due process of law,"
and also in violation of the clause of the Constitution
providing for the extradition of fugitives of justice from one
state to another and the laws made for its execution.
As to the for Fourteenth Amendment, it is difficult to perceive
in what way it bears upon the subject. Assuming, what is not
conceded, that the fugitive has a right of asylum in West Virginia,
the State of Kentucky has passed no law which infringes upon that
right or upon any right or privilege of immunity which the accused
can claim under the Constitution of the United States. The law of
that state which is enforced is a law for the punishment of the
crime of murder, and she has merely sought to enforce it by her
officers under process executed within her territory. She did not
authorize the unlawful abduction of the prisoner from West
Virginia.
As to the removal from the state of the fugitive from justice in
a way other than that which is provided by the second section of
the Fourth Article of the Constitution, which declares that
"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,"
and the laws passed by Congress to carry the same into effect,
it is not
Page 127 U. S. 708
perceived how that fact can effect his detention upon a warrant
for the commission of a crime within the state to which he is
carried. The jurisdiction of the court in which the indictment is
found is not impaired by the manner in which the accused is brought
before it. There are many adjudications to this purport cited by
counsel on the argument, to some of which we will refer.
The first of these is that of
Ex Parte Scott, 9 B.
& C. 446. There, it appeared that the prisoner, who had been
indicted in the King's Bench for perjury, and for whose
apprehension a warrant had been issued, was arrested by the
officer, to whom the warrant was specially directed at Brussels, in
Belgium, and conveyed to England. A rule
nisi was then
obtained from the court for a writ of habeas corpus, and the
question of her right to be released because of her illegal arrest
in a foreign jurisdiction was argued before Lord Tenterden. He held
that where a party charged with a crime was found in the country,
it was the duty of the court to take care that he should be
amenable to justice, and it could not consider the circumstances
under which he was brought there, and that if the act complained of
was done against the law of a foreign country, it was for that
country to vindicate its own law, and the rule was discharged.
The next case is that of
State v. Smith, which was very
fully and elaborately considered by the Chancellor and the Court of
Appeals of South Carolina. 1 Bailey 283. Though this case did not
arise upon the forcible arrest in another jurisdiction of the
offender to answer an indictment, but to answer to a judgment the
conditional release from which he had disregarded, the principle
involved was the same. Smith had been convicted of stealing a slave
and sentenced to death. He was pardoned on condition that he would
undergo confinement during a designated period, and within fifteen
days afterwards leave the state and never return. The pardon was
accepted, and the prisoner remained in confinement for the time
prescribed, and within fifteen days afterwards removed to North
Carolina, and remained there some years, when he returned to
Page 127 U. S. 709
South Carolina. The Governor of the latter state then issued a
proclamation stating that the prisoner was in the state in
violation of the condition of his pardon, and offering a reward for
his arrest. Smith afterwards returned to North Carolina, where he
was forcibly seized by parties from South Carolina, without warrant
or authority from any officer or tribunal of either state except
the proclamation of the Governor of South Carolina, and was brought
into the latter state and lodged in jail. He sued out a writ of
habeas corpus, and was brought before the chancellor of the state,
and his discharge was moved on the ground that his arrest in North
Carolina was illegal, and his detention equally so. The motion was
refused and the prisoner remanded. The chancellor gave great
consideration to the case, and in the following extract from his
opinion furnishes an answer to the principal objections urged in
the case at bar to the detention of the appellant: "The prisoner,"
said the chancellor,
"is charged with a felonious violation of the laws of this
state. It is answered that other persons have been guilty, in
relation to him, of an outrageous violation of the laws of another
state, and therefore he ought to be discharged. I perceive no
connection between the premises and the inference. The chief
argument is drawn from the supposed consequences which are likely
to follow by bringing our government into collision with others.
This is less to be apprehended among the states of the union, where
the federal Constitution makes provision for a satisfaction of the
violated jurisdiction. But suppose the case of a foreign state.
There is no offense in trying, and, if he be guilty, convicting,
the subject of a foreign government, who has been guilty of a
violation of our laws, within our jurisdiction. Or, if he had made
his escape from our jurisdiction, and by any accident were thrown
within it again; if he were shipwrecked on our coast, or
fraudulently induced to land by a representation that it was a
different territory, with a view to his being given up to
prosecution, there would seem to be no reason for exempting him
from responsibility to our laws. In the case we are considering,
the prisoner is found in our jurisdiction in consequence of a
lawless act of violence exercised upon him by individuals. The
true
Page 127 U. S. 710
cause of offense to the foreign government is a lawless
violation of its territory. But a similar violation of a foreign
jurisdiction might be made for other purposes, and it would not be
in the power of our tribunals to afford satisfaction. An individual
might be kidnapped and brought within our territory for the purpose
of extorting money from him, or murdering him. It would not seem to
be an appropriate satisfaction to the injured government to exempt
a person justly liable to punishment under our laws, where we have
no means of giving up to punishment those who have violated its
laws. But there is no difficulty among the states of the union.
Upon demand by the State of North Carolina those who have violated
its laws will be given up to punishment."
1 Bailey 292.
Subsequently the prisoner was brought before the presiding judge
of the court of appeals of the state to answer to a rule to show
cause why his original sentence should not be executed and a date
fixed for his execution. He showed for cause that he had received
an executive pardon, and had performed all the conditions annexed
to it, except the one which prohibited his return to the state,
which, it was submitted, was illegal and void. And for further
cause, he showed that he had been illegally arrested in North
Carolina and brought within the jurisdiction of this state against
his own consent, and it was therefore insisted that he was not
amenable to the courts of South Carolina, but was entitled to be
sent back to North Carolina, or to be discharged, and sufficient
time allowed him to return thither. The judge held the grounds to
be insufficient, and the defendant then moved the court to reverse
his decision on substantially the same grounds, and, among them,
that he was entitled to be discharged in consequence of having been
illegally arrested in North Carolina and brought into the state.
Upon this, the court said:
"The pursuit of the prisoner into North Carolina and his arrest
there was certainly a violation of the sovereignty of that state,
and was an act which cannot be commended. But that was not the act
of the state, but of a few of its citizens, for which the
Constitution of the United States has provided a reparation. It
gives the Governor of that state the right to
Page 127 U. S. 711
demand them of the Governor of this, and imposes on the latter
the obligation to surrender them; but until it is refused, there
can be no cause of complaint."
And the motion was refused.
In the case of
State v. Brewster, the same doctrine was
announced by the Supreme Court of Vermont. 7 Vt. 118. There it
appeared that the prisoner charged with crime had escaped to Canada
and was brought back against his will, and without the consent of
the authorities of that province, and he sought to plead his
illegal capture and forcible return in bar of the indictment, but
his application was refused, the court observing that the escape of
the prisoner into Canada did not purge the offense, nor oust the
jurisdiction of the court, and he being within its jurisdiction it
was not for it to inquire by what means or in what manner he was
brought within the reach of justice. Said the court:
"If there were anything improper in the transaction it was not
that the prisoner was entitled to protection on his own account.
The illegality, if any, consists in a violation of the sovereignty
of an independent nation. If that nation complain it is a matter
which concerns the political relations of the two countries, and in
that aspect is a subject not within the constitutional powers of
this court."
Pp. 121-122.
In
State v. Ross, 21 Ia. 467, the Supreme Court of Iowa
declared the same doctrine, and stated the distinction between
civil and criminal cases where the party is by fraud or violence
brought within the jurisdiction of the court. The defendants were
charged with larceny, and were arrested in Missouri and brought by
force and against their will, by parties acting without authority,
either of a requisition from the governor or otherwise, to Iowa,
where an indictment against them had been found. In Iowa they were
rearrested and turned over to the civil authorities for detention
and trial. It was contended that their arrest was in violation of
law; that they were brought within the jurisdiction of the state by
fraud and violence; that comity to a sister state and a just
appreciation of the rights of the citizen, and a due regard to the
integrity of the law demanded that the court should under such
Page 127 U. S. 712
circumstances refuse its aid, and that there could be no
rightful exercise of jurisdiction over the parties thus arrested.
But the court answered that
"the liability of the parties arresting them (the defendants)
without legal warrant, for false imprisonment or otherwise, and
their violation of the penal statutes of Missouri may be ever so
clear, and yet the prisoners not be entitled to their discharge.
The offense being committed in Iowa, it was punishable here, and an
indictment could have been found without reference to the arrest.
There is no fair analogy between civil and criminal cases in this
respect. In the one (civil), the party invoking the aid of the
court is guilty of fraud or violence in bringing the defendant or
his property within the jurisdiction of the court. In the other
(criminal), the people, the state, is guilty of no wrong. The
officers of the law take the requisite process, find the prisoners
charged within the jurisdiction, and this too without force, wrong,
fraud, or violence on the part of any agent of the state or officer
thereof. And it can make no difference whether the illegal arrest
was made in another state or another government."
Other cases might be cited from the state courts holding similar
views. There is indeed 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. It would indeed be a strange
conclusion if a party charged with a criminal offense could be
excused from answering to the government whose laws he had violated
because other parties had done violence to him and also committed
an offense against the laws of another state.
The case of
Ker v. Illinois, decided by this Court,
119 U. S. 437,
has a direct bearing upon the question presented here, whether a
forcible and illegal capture in another state is in
Page 127 U. S. 713
violation of any rights secured by the Constitution and laws of
the United States. In that case, it appeared that Ker was indicted
in Cook County, Illinois, for embezzlement and larceny. He fled the
country and went to Peru. Proceedings were instituted for his
extradition under the treaty between that country and the United
States, and application was made by our government for his
surrender, and a warrant was issued by the President, directed to
one Julian, as messenger, to receive him from the authorities of
Peru upon his surrender and to bring him to the United States.
Julian, having the necessary papers, went to Peru, but, without
presenting them to any officer of the Peruvian government or making
any demand on that government for the surrender of Ker, forcibly
arrested him, placed him on board the United States vessel
Essex, then lying in the harbor of Callao, kept him a
close prisoner until the arrival of that vessel at Honolulu, in the
Hawaiian islands, where, after some detention, he was conveyed in
the same forcible manner on board another vessel, in which he was
carried a prisoner to San Francisco, California. Before his arrival
in that state, the Governor of Illinois had made a requisition on
the Governor of California, under the laws of the United States,
for his delivery as a fugitive from justice. The Governor of
California accordingly made an order for his surrender to a person
appointed by the Governor of Illinois to receive him and take him
to the latter state. On his arrival at San Francisco, he was
immediately placed in the custody of this agent, who took him to
Cook County, where the process of the criminal court was served
upon him, and he was held to answer the indictment. He then sued
out a writ of habeas corpus before the circuit court of the state,
contending that his arrest and deportation from Peru was a
violation of the treaty between that government and ours, and that
consequently his subsequent detention under the process of the
state court was unlawful. The circuit court remanded him to jail,
holding that whatever illegality might have attended his arrest it
could not affect the jurisdiction of the court or release him from
liability to the state whose laws he had violated. He then applied
to the circuit court of the
Page 127 U. S. 714
United States for a writ of habeas corpus, asking his release
upon the same ground, but the court refused it, holding that it was
not competent to look into the circumstances under which the
capture and the transfer of the prisoner from Peru to the United
States were made nor to free him from the consequences of the
lawful process which had been served upon him for the offense which
he was charged with having committed in the State of Illinois. When
arraigned on the indictment in the trial court, he raised similar
questions on a plea in abatement, which was held bad on demurrer,
and after conviction he carried the case on a writ of error to the
supreme court of the state, where the same conclusion was reached,
and the judgment against him was affirmed. He then brought the case
to this Court, where it was contended that under the treaty of
extradition with Peru, he had acquired by his residence in that
country a right of asylum, a right to be free from molestation for
the crime committed in Illinois -- a right that he should be
forcibly removed from Peru to the State of Illinois only in
accordance with the provisions of the treaty, and that this right
was one which he could assert in the courts of the United States.
But the court answered that there was no language in the treaty on
the subject of extradition which said in terms that a party fleeing
from the United States to escape punishment for a crime became
thereby entitled to an asylum in the country to which he had fled;
that it could not be doubted that the government of Peru might, of
its own accord, without any demand from the United States, have
surrendered Ker to an agent of Illinois, and that such surrender
would have been valid within Peru; that it could not, therefore, be
claimed, either by the terms of the treaty or by implication, that
there was given to a fugitive from justice in one of those
countries any right to remain and reside in the other, and that if
the right of asylum meant anything, it meant that. So in this case
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
Page 127 U. S. 715
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 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.
It follows that the judgment of the court below must be
Affirmed.
MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE HARLAN,
dissenting.
I dissent from the judgment of the Court in this case. In my
opinion, the writ of habeas corpus was properly issued, and the
prisoner, Mahon, should have been discharged and permitted to
return to West Virginia. He was kidnapped, and carried into
Kentucky in plain violation of the Constitution of the United
States, and is detained there in continued violation thereof. It is
true he is charged with having
Page 127 U. S. 716
committed a crime in Kentucky. But the Constitution provides a
peaceable remedy for procuring the surrender of persons charged
with crime and fleeing into another state. This provision of the
Constitution has two objects: the procuring possession of the
offender and the prevention of irritation between the states which
might arise from giving asylum to each other's criminals and from
violently invading each other's territory to capture them. It
clearly implies that there shall be no resort to force for this
purpose. The Constitution has abrogated, and the states have
surrendered, all right to obtain redress from each other by force.
The Constitution was made to "establish justice" and "insure
domestic tranquility," and to attain this end as between the states
themselves, the judicial power was extended "to controversies
between two or more states," and they were enjoined to deliver up
to each other fugitives from justice when demanded, and even
fugitives from service. This manifest care to provide peaceable
means of redress between them is utterly irreconcilable with any
right to redress themselves by force and violence, and, of course,
what is unconstitutional for the states is unconstitutional for
their citizens. It is undoubtedly true that occasional instances of
unlawful abduction of a criminal from one state to another for
trial have been winked at, and it has been held to be no defense
for the prisoner on his trial. Such precedents are founded on those
which have arisen where a criminal has been seized in one country
and forcibly taken to another for trial, in the absence of any
international treaty of extradition. It is obvious that such cases
stand on a very different ground. It is there a question between
independent nations bound by no ties of mutual obligation on the
subject, and at liberty to adopt such means of redress and
retaliation as they please. But where an extradition treaty does
exist and a criminal has been delivered up under it, he cannot,
without violating the treaty, be tried for any other crime but that
for which he was delivered up.
United States v. Rauscher,
119 U. S. 407.
This shows that even when rightfully obtained for one offense, he
cannot be prosecuted for another. It is true that in the same
volume is found the case of
Ker
v.
Page 127 U. S. 717
Illinois, 119 U. S. 437,
in which it was held not to be a good plea to an indictment that
the prisoner was kidnapped from Peru, with which country we had an
extradition treaty. But this was because, as before said, the
prisoner himself cannot set up the mode of his capture by way of
defense if the state from which he was abducted makes no complaint.
Peru made none.
But this is not such a case. The state from which Mahon was
abducted has interposed not only by a formal demand for his
restoration but by suing out a habeas corpus. Perhaps the writ
might have been sued out of this Court, as the controversy had come
to be a controversy between the states, Kentucky having availed
herself of the fruits of the unlawful abduction by retaining the
victim and refusing to restore him on demand. The State of West
Virginia, however, has elected, as she might do, to have the writ
directed only to the person holding Mahon in custody. I take this
to be a legal and apt remedy to settle the case by peaceable
judicial means.
A requisition would not apply. That is provided for the
extradition of fugitives from justice. It would apply for the
delivery up of the kidnapers, but not for the restoration of their
victim. It is a special constitutional remedy, addressed by the
executive of one state to the executive of another, imposing a
constitutional duty of extradition when properly made in a proper
case. But the present case is a different one. It is not the
surrender of a fugitive from justice which is sought, but the
surrender of a citizen unconstitutionally abducted and held in
custody. There must be some remedy for such a wrong. It cannot be
that the states, in surrendering their right of obtaining redress
by military force and reprisals, have no remedy whatever. It was
suggested by counsel that the State of West Virginia might sue the
State of Kentucky for damages. This suggestion could not have been
seriously made. No, the remedy adopted was the proper one. Habeas
corpus is not only the proper legal remedy, but a most salutary
one. It is calculated to allay strife and irritation between the
states by securing a judicial and peaceful decision of the
controversy.
But it is contended that although it may be within the
Page 127 U. S. 718
spirit of the Constitution, it is not within its letter, and
special legislation is necessary to enable the courts or judges to
issue a habeas corpus. I do not think that the conclusion follows.
Congress, from the beginning, clothed the courts and judges of the
United States with the general power to issue writs of habeas
corpus, with the restriction at first not to extend to prisoners in
jail, unless in custody under authority of the United States, etc.
But in 1833, 1842, and 1867, this restriction was modified, and by
the last act removed altogether "in all cases where any person may
be restrained of his or her liberty, in violation of the
Constitution, or of any treaty or law of the United States." 14
Stat. 385; Rev.Stat. § 753.
And see Ex Parte Parks,
93 U. S. 18,
93 U. S. 22,
where the reference to 14 Stat. should be page 385, instead of page
44. This is legislation enough. A citizen of West Virginia is
deprived of his liberty contrary to the Constitution and laws of
the United States. The exigency has arisen in which the law
applies, and if the party himself is precluded from setting up his
wrongful abduction as a defense to an indictment, and perhaps
precluded from demanding his discharge on habeas corpus, his state
has intervened for his protection, and has sued out the writ. But I
think that his own application for the writ is well grounded. He is
not in the situation of a criminal who has been abducted from a
state which takes no interest in his case. His restoration has been
demanded by his state, and habeas corpus may be issued either at
his own instance or that of the state.
This Court does not hesitate, on the plea of insufficient
legislation, to issue the writ of habeas corpus as an appellate
remedy wherever a citizen is deprived of his liberty in violation
of the Constitution or laws of the United States and is refused a
discharge by other tribunals, and has no other remedy.
See Ex
Parte Royal, 112 U. S. 181;
Ex Parte Royal, 117 U. S. 241.
I think that the judgment of the circuit court should be
reversed, and the prisoner restored to his liberty with permission
to return to the State of West Virginia. I am authorized to say
that MR. JUSTICE HARLAN concurs in this opinion.