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There can be no douot that congress has the power to protect pension money against seizure under our State laws until it shall have passed into the hands of the pensioner. U. S. v. Hall, 98 U. S. 343. But a pension being a gratuity involving no claim of right, or agreement of parties, or rights of third persons (Harrison v. U. S., 20 Ct. Cl. 122), I am unable to perceive any principle which would render it incompetent for congress to make that gratuity, even in his hands, inaccessible to his creditors. That question, I think, is not one to be determined by reference to the constitution of the United States, or to the powers of congress under the same, but by reference to the law of the State in which the question arises. Now, an unbroken line of decisions, from Fisher v. Taylor, 2 Rawle, 33, down to such recent ones as Overman's Appeal, 88 Pa. St. 276; Thackara v. Mintzer, 100 Pa. St. 151; Stambaugh's Estate, 135 Pa. St. 585, 19 Atl. Rep. 1058; Ghormley v. Smith, 139 Pa. St. 584, 21 Atl. Rep. 135,has settled the law in this commonwealth that one may provide for another without exposing his bounty to liability for the debts or improvidence of the bene ficiary. If a private person has that right in this State, why not the United States? And what substantial difference can it make whether the provision be made through the medium of a trustee, or directly to the beneficiary? It has never been deemed indispensable that, e. g., in a gift of a separate estate to a married woman, a trustee should intervene between her and the grantor in order to protect her estate against the usual incidents of legal estates of married women. Wright v. Brown, 44 Pa. St. 224. True, in both this and the former instance cited as illustrations, the interest of the beneficiary is an equitable one. But I need not quote authorities to prove that, in this State, equity is part of the law, and that the legal rights and liabilities of persons are determined upon principles of equity. Neither, as I am well aware, is the analogy between the instances cited and a case like this a complete one; and, if it were, 'analogies

are as likely to misguide as to guide safely.' Overman's Appeal, 88 Pa. St. 285, per Woodward, J., I have referred to them simply to show that the theory of our law does not exclude the possibility of the exemption I am discussing. It seems to me, however, that, apart from theory, the question of the right of congress to exempt pension money, even in the hands of the pensioner, from seizure by his creditors under our State laws is no longer an open question, any more than that the language of the pension law is sufficient to indicate an intention so to do. This act,' says Mr. Chief Justice Paxton, in Holmes v. Tallada, 125 Pa. St. 133, 135 17 Atl. Rep. 138, 'not only protects the pension money from attachment while on its way to the pensioner, but it goes further, and declares that it "shall enure wholly to the benefit of such pensioner:" and upon the strength of that declaration it was held that where a pensioner, having received a check for accrued pension, indorsed and gave it to his wife, who drew the money and applied it to the purchase of real estate, taking the title in her own name, the property was not liable to seizure and sale for the husband's debt. Id. We all know that it is the law of Pennsylvania that where a married woman acquires property by gift, or by means of the proceeds of a gift, from her husband, it may be taken by his creditors, who would otherwise be kept out of their claims. See Herr's Appeal, 5 Watts & S. 494; Duffy v. Insurance Co., 8 Watts & S. 413; Stickney v. Borman, 2 Pa. St. 67; Coats v. Gerlach, 44 Pa. St. 43; Ammon's Appeal, 63 Pa. St. 284. It is equally clear that the only exception to this rule can be where the gift by the husband to the wife is of something which, in his hands, would be exempt from seizure by his creditors. See Robb v. Brewer, 60 Iowa, 539, 15 N. W. Rep. 420. Hence it follows that the logic of the decision exempting the property in the hands of the wife implies an exemption in the hands of the husband of that whereby it was acquired. It is further to be observed that the ruling in Holmes v. Tallada, supra, was not put upon the ground that the check, not being cashed when indorsed to the wife, represented money in transit from the government to the pensioner, and, for that reason, at the time exempt from seizure under the first clause of section 4747, above quoted. See Farmer v. Turner, 64 Iowa, 690, 21 N. W. Rep. 140; Hissem v. Johnson, 27 W. Va. 652; Hayward v. Clark, 50 Vt. 617. It is, on the contrary, based upon the language of the last clause, declaring that the gratuity shall inure wholly to the benefit of such pensioner.' Concerning that provision, it is said: "We think the rational interpretation of this language is that the pensioner may use the money in any manner he may see proper, for his own benefit and to secure the comfort of his family, free from attacks of creditors. . . . In his hands it was not liable to seizure." Holmes v. Tallada, 125 Pa. St. 136, 17 Atl. Rep. 238. I cannot understand this decision otherwise than as authorizing the inferences (1) that congress may exempt the gratuity given by it to a pensioner, in his hands, from liability for his debts under the laws of this State; (2) that by the language of its enactment it has done so; and (3) that, therefore, property acquired by means of pension money is exempt from levy and sale upon execution. So understood, the case is in perfect harmony with the decisions in Crow v. Brown, 81 Iowa, 344, 46 N. W. Rep. 993, (holding that property purchased by a pensioner with pension money is exempt from execution or attachment by virtue of Rev. St. U. S. § 4747, and overruling a whole line of earlier cases to the contrary); Marquardt v. Mason (Iowa), 54 N. W. Rep. 72 (hold

ing on the authority of Crow v. Brown, supra, that property purchased by a pensioner's wife with the proceeds of a pension certificate presented by him to her was not to be subjected to the payment of a judg. ment recovered against the pensioner before the purchase); Bank v. Carpenter, 119 N. Y. 550, 23 N. E. Rep. 1108 (holding that, where the receipts from a pension can be directly traced to the purchase of property, the latter is exempt from execution); Folschow v. Werner, 51 Wis. 85, 7 N. W. Rep. 911 (holding that the specific money received from the govern. ment in payment of a pension cannot be attached); and a dictum in Haywood v. Clark, supra (similar in effect to the rulings in the cases just cited). I am not unmindful of the fact that there are a number of authorities to the contrary. Besides, in the overruled Iowa cases (Webb v. Holt, 57 Iowa, 712, 11 N. W. Rep. 658; Triplett v. Graham, 58 Iowa, 135, 12 N. W. Rep. 143; Farmer v. Turner, 64 Iowa, 690, 21 N. W. Rep. 140; Baugh v. Barrett, 69 Iowa, 495, 29 N. W. Rep. 425; Foster v. Byrne, 76 Iowa, 295, 300, 35 N. W. Rep.. 513, and 41 N. W. Rep. 22), the doctrine that the exemption from seizure enacted by Rev. St. U. S. § 4747, extends only to pension money remaining in the pension office or its agencies, or while in course of transmission, and not to pension money paid and in possession of the pensioner, or to property bought with such money in his or in his wife's name, seems to be maintained in the following: State v. Fairton, etc., Bldg. Ass'n, 44 N. J. Law, 376; Spelman v. Aldrich, 126 Mass. 117; Faurote v. Carr, 108 Ind. 126, 9 N. E. Rep. 350; Robion v. Walker, 82 Ky. 61 (overruling Eckert v. McKee, 9 Bush, 355); Johnson v. Elkins (Ky.), 13 S. W. Kep. 448; McFarland v. Fish, 34 W. Va. 548, 12 S. E. Rep. 548; Friend v. Garcelon, 77 Me. 25 (citing Knapp v. Beattie, 70 Me. 410, and the overruled Iowa cases); Berry v. Berry, 84 Me. 541, 24 Atl. Rep. 957; Cranz v. White, 27 Kan. 319; Fulwiler v. Infield, 6 Ohio Cir. Ct. R. 36. They are, however, clearly inconsistent with the latest deliverance of our Supreme Court on the subject to which they relate (Holmes v. Tallada, supra), and therefore not applicable to the question before me. Under that decision, and those of other States which agree with it, it is my duty to hold that pension money in the hands of a pensioner, and property acquired by him or his wife with such money, are exempt from execution; and that, I think, settles this case.

"When the defendant placed his check with the Farmers' Bank for collection, and after collection by it received a credit with the bank for the amount, what did he do? He did not receive the money. The bank received it. The bank, however, does not hold it for him as his bailee. The deposit made the money paid upon the pension check the property of the bank. Thompson v. Riggs, 5 Wall. 663, 678; Scammon v. Kimball, 92 U. S. 362, 369, 370; Bank v. Jones, 42 Pa. St. 536, 537. In return, the bank became debtor to the defendant for that amount (Bank v. King, 57 Pa. St. 202, 205; Thompson v. Riggs, supra; Mining Co. v. Brown, 124 U. S. 385, 391, 8 Sup. Ct. Rep. 531); i. e., the defendant became the holder of a claim upon the bank, a chose in action (Bank v. Millard, 10 Wall. 152, 157, and cases there cited). In other words, in exchange for the money paid by the government of the United States as a pension to the defendant, the latter became the owner of another kind of property (for a chose in action is property, Carlton v. Carlton, 72 Me. 115, 116; Ide v. Harwood, 30 Minn. 195, 14 N. W. Rep. 884; Vaughan v. Town of Murfreesboro, 96 N. C. 317,-2 S. E. Rep. 676), viz. a credit with the bank which enabled him to draw upon it. This property,

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therefore (for a credit is property,-People v. Worthington, 21 Ill. 171), being acquired with pension money, and in the hands of the pensioner, was, under the decisions I must regard as conclusive upon me, exempt from seizure for the owner's-the defendant'sdebts under the law of this State. Neither can I perceive any inconsistency in this respect between the decision in Holmes v. Tallada, supra, which I am following, and that in Rozelle v. Rhodes, 116 Pa. St. 129, 9 Atl. Rep. 160, relied upon by plaintiff's counsel. The language of the Supreme Court must be understood with reference to the facts to which it was applied. Bank v. King, 57 Pa. St. 202, 208; Hart v. Carroll, 85 Pa. St. 508, 511. The money attached, in Rozelle v. Rhodes, supra, was pension money. But it was neither in the hands of the pensioner, nor was it, by a general deposit in a bank, converted into another species of property. It had been placed by the pensioner in the hands of another as a bailee for safekeeping, the identical money to be returned to the pensioner. It was held that, thus in the hands of the bailee, it might be attached. It may not be clear to me why this should be so, whilst in the pensioner's hands, or converted into some other kind of property, it would not be liable. But it is enough for us that it has been so decided, that the present case falls within the latter category, and that, therefore, the decision in Rozelle v. Rhodes, supra, is not here applicable. There are, indeed, in Holmes v. Tallada, supra, two expressions that may be referred to as making against my interpretation of that decision. The chief justice on page 136, 125 Pa. St., and page 238, 17 Atl. Rep. says: (1) 'We need not discuss the question whether property purchased by a pensioner with the pension money, and held in his own name, would be liable to execution for his debts. No such question is before us.' And (2), 'In Rozelle v. Rhodes, 116 Pa. St. 129, 9 Atl. Rep. 160, the pensioner had deposited the pension money with a bailee for safe-keeping, and it was held that it could be attached in the hands of the bailee. So here, if Jackson Tallada had deposited this money in his own name in bank, it might, under the authority cited, have been liable to attachment.' (1) The former of these observations simply amounts to a declaration of that which, without it, is self-evident, viz. that the facts of the case were not such as to render the decision upon them an express decision of the status of property acquired with pension money while in the hands of the pensioner. That, however, the point is incidently covered,-that the proper rule upon it results logically from the decision of the precise question in the case,-is not excluded by that statement. Nor, of course, can the latter by any possibility be construed as being even an intimation that such property acquired with pension money would not, in the hands of the pensioner, be exempt. (2) In the other, the first sentence is but an accurate statement of what was decided in the earlier case, and a recognition of it as authority to that extent, and no further. The second sentence, following in immediate sequence, must be read in connection with the first. So read, the word 'deposit' obviously has reference to a special deposit, such as was proven and passed upon in the earlier case, and is mentioned in Thompson v. Riggs, ubi supra. If, however, the learned chief justice had in mind a general deposit in a bank, then it is equally clear, that, that question not being before the court, the observation is to be taken as intended merely for illustration or as an obiter dictum, and in either aspect, upon a very familiar principle, not authoritative.

"It would be an omission not to refer, in concluding

my discussion of this subject, to several decisions which, though not binding upon me, are entitled to great respect, and support the views I have expressed. In Moore v. March, 16 Wkly. Notes Cas. 239 (1885), the C. P. of Clearfield county, per Krebs, P. J., held a deposit by a pensioner of pension money in a bank not attachable. In Clark v. Ingraham (1881), 38 Leg. Int. 393, where defendant, a pensioner, had directed his banker through whom the pension had been collected, to give to defendant's wife a certificate of deposit for an unused balance of the pension money, it was held by the C. P. of Tioga county, per Williams, P. J., that this deposit could not be attached for the defendant's debt. In Stockwell v. Bank, 36 Hun, 583, it was decided that moneys received from a pension, and deposited in a bank in the name of the pensioner, were not subject to seizure by his creditors, the claim of the pensioner upon the bank by virtue of the deposit representing the pension money itself. True, this decision is directly based, not upon Rev. St. U. S. § 4747, but upon the Civil Code of New York, § 1393, providing that 'a pension granted by the United States for military services is exempt from levy and sale by vir tue of an execution ⚫ or in any other legal proceeding.' But it is manifest that this enactment does not make the matter any clearer, or go any further, than the federal statute with which we are here concerned. The latter speaks of any 'sum of money due or to become due to any pensioner.' The former exempts the 'pension' granted by the United States. Now, a pension is defined to be 'a periodical allowance granted by a government for services rendered.' And, Law Dict. ad verb. The word 'pension' as used in the New York statute is, in other words, identical in meaning with the 'sum of money due or to become due to any pensioner,' as used in the act of congress. Hence, if the one is to be understood as including property acquired by means of the gratuity received, such as a credit in a bank,-the other ought to include it also.

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"For the reasons stated, I am of the opinion that the attachment ought to be dissolved. I am glad to be able so to hold, consistently with the decisions in this State, as I understand them, because, apart from any authority, I feel very certain that the act of congress meant to exempt pension money, or property representing pension money, in whatsoever form, in the hands of the pensioner, from liability for his debts."

CRIMINAL LAW-ADULTERY—ATTEMPT TO COMMIT SOLICITATIONS.-A novel point was involved in the case of State v. Butler, 35 Pac. Rep. 1093, decided by the Supreme Court of Washington. It was held that solicitation to commit adultery is not attempt to commit adultery. Scott, J., says:

It being impossible for one alone to commit adultery, as that requires the co-operation of two persons, it would seem to follow logically that one acting singly could not make an attempt. One person could no more attempt to commit adultery than he could attempt to commit a riot, which, under our statutes, requires the participation of three or more persons. The instances given in the books where the solicitation of another to commit a crime is held to be an offense generally relate to those acts or crimes which can be performed or committed by one person, or where the solicitation

to commit the crime is an offense in itself, as distinguished from an attempt. It is urged that a person may be convicted of adultery, or of an attempt to commit adultery, although not a direct participant in the act, by reason of aiding or abetting; but in such a case, where an attempt is charged against such third person, it should appear that there were two persons willing to commit the act of adultery, and that something was done in the way of an attempt. The cases upon this subject are very limited in number. The case of State v. Avery, 7 Conn. 266, cited by counsel for appellant, which was decided in 1828, does not sustain this contention. That case was based upon a letter sent by the defendant to the wife of another man, containing words importing that she had acted libidinously towards the writer, and inviting her to an assignation for adulterous purposes; and it was held that the writing and sending of such letter was libelous. It was further said that it was immaterial to inquire whether the facts stated in the information amounted to a libel, or a solicitation to commit a greater crime, for, if they constituted an indictable offense within the jurisdiction of the superior court, it was sufficient for the purposes of that case. It was not decided that solicitation was an attempt to commit adultery. In Smith v. Com., 54 Pa. St. 209, decided in 1867, it was held that such solicitation did not amount to an attempt.

A distinction has been sought to be drawn, in this particular, to the effect that solicitation to commit adultery is indictable as an attempt in those States where adultery is a felony, which was the case in the State of Connecticut, while in Pennsylvania adultery was but a misdemeanor. The distinction attempted to be drawn, it seems to us, is not sound in principle. It is based on the ground that in trivial misdemeanors the law will look upon an attempt to commit them as not of sufficient gravity to justify or call for punishment. The decision of the case last cited, however, was not founded upon this distinction, although it recognizes the fact that such a one has been sometimes made, in citing State v. Avery. The court evidently entertained a different view. The opinion says: "An attempt to commit a misdemeanor is a misdemeanor, whether the offense is created by statute or was an offense at common law. These were the words of Baron Parke in the case of Rex v. Roderick, 7 Car. & P. 795, delivered in the year 1837. They have been adopted by the compilers on criminal law. 1 Russ. Crimes, 46; 1 Archb. Cr. Pl. 19; Whart. Cr. Law, 79, 873." And apparently this had the sanction of the court. The reasons given in that case showing why solicitation should not be held an attempt to commit adultery apply with equal force whether adultery be a misdemeanor or a felony. These relate to the difficulty of determining what is a solicitation. "What expressions of the face," says the court, "or double entendres of the tongue, are to be adjudged solicitation? What freedoms of manners amount to this crime? Is every cyprian who nods or winks to the married men she meets upon the sidewalk indictable for soliciting to adultery? And could the law safely undertake to decide what recognitions in the street were chaste, and what were lewd? It would be a dangerous and difficult rule of criminal law to administer." If adultery is a crime in this State, it is a felony, and, if solicitation is an attempt to commit adultery, it is a criminal offense here. Pen. Code, § 303. It will be observed that this section makes no distinction between an attempt to commit a felony and an attempt to commit a misdemeanor, except as to the degree of punishment; and the distinction

above mentioned could not be recognized here, even if adultery was but a misdemeanor under the statutes. It may be well to note, however, what some of the courts and law writers have said relating to the subject under consideration. In the case of Com. v. Willard, 22 Pick. 476, it was held that the purchaser of spirituous liquor sold in violation of the statute does not subject himself to any penalty, either at common law, as inducing the seller to commit a misdemeanor, or under the statute. It was said in that case: "It is difficult to draw any precise line of distinction be tween the cases in which the law holds it a misdemeanor to counsel, entice, or induce another to commit a crime, and where it does not. In general it has been considered as applying to cases of felony, though it has been held that it does not depend upon the mere legal and technical distinction between felony and misdemeanor.

One consideration, however, is mani

fest in all the cases, and that is that the offense proposed to be committed by the counsel, advice, or enticement of another is of a high and aggravated character tending to breaches of the peace or other great disorder and violence, being what are usually con sidered mala in se, or criminal in themselves, in contradistinction to mala prohibita, or acts otherwise indifferent than as they are restrained by positive law." In the case of Com. v. Harrington, 3 Pick. 26, it was held that the letting of a house for the purposes of prostitution, with the intent that it should be thus used, was an offense at the common law. The keeping of such a disorderly house was not a felony, but a misdemeanor of a high and aggravated character tending to general disorderly breaches of the peace, and a common nuisance to the community. There was no statute in Massachusetts relating to it. In Whart. Cr. Law (9th Ed.), § 179, in speaking of solicitations, the author says: "Are solicitations to commit crime independently indictable? They certainly are, as has been seen, when they, in themselves, involve a breach of the public peace, as is the case with challenges to fight and seditious addresses. They are also indictable when their object is interference with public justice; as, where a resistance to the execution of a judicial writ is counseled, or perjury is advised, or the escape of a prisoner is encouraged." "But," says the author, "is a solicitation indictable when it is not either (1) a substantive indictable offense, as in the instances just named, or (2) a stage towards an independent consummated offense?" And he says: "The better opinion is that, where the solicitation is not in itself a substantive offense, or where there has been no pro. gress made towards the consummation of the independent offense attempted the question whether the solicitation is, by itself, the subject of penal prosecution, must be answered in the negative;" and he maintains that solicitation is not an attempt to commit adultery. In speaking of the subject further, he says: "For we would be forced to admit, if we hold that solicitations to criminality are generally indictable, that the propagandists, even in conversation, of agrarian or communistic theories, are liable to criminal prosecutions; and hence the necessary freedom of speech and of the press would be greatly infringed. It would be hard, also, we must agree, if maintain such general responsibility, to defend, in prosecutions for soliciting crime, the publishers of Byron's Don Juan, of Rousseaus's Emile, or of Goethe's Elective Affinities. Lord Chesterfield, in his letters to his son, directly advises the latter form illicit connections with married women. Lord Chesterfield, on the reasoning here contested, would be indictable for solicitation to adultery. Undoubtedly, when such

we

solicitations are so publicly and indecently made as to produce public scandal, they are indictable as nuisances or as libels; but to make bare solicitations or allurements indictable as attempts not only unduly and perilously extends the scope of penal adjudication, but forces on the courts psychological questions which they are incompetent to decide, and a branch of business which would make them despots of every intellect in the land. What human judge can determine that there is such a necessary connection between one man's advice and another man's action as to make the former the cause of the latter? An attempt, as has been stated, is such an intentional preliminary guilty act as will apparently result, in the usual course of natural events, if not hindered by extraneous causes, in the commission of a deliberate crime. But this cannot be affirmed of advice given to another, which advice such other person is at full liberty to accept or reject. Following such reasoning, several eminent European jurists have declined to regard solicitations as indictable, when there is interposed between the bare solicitation, on the one hand, and the proposed illegal act, on the other, the resisting will of another person, which other person refuses assent and co-operation." In a somewhat later work (1 Bish. Cr. Law), a partially contrary view is indorsed. This author goes further. In section 768 he says: "Though, to render a solicitation indictable, it is, as in other attempts, immaterial, in general, whether the thing proposed to be done is technically a felony or a misdemeanor, still, as the soliciting is the first step, only, in a gradation reaching to the consummation, the thing intended must, on principles already explained, be of a graver nature than if the step lay further in advance." He is of the opinion that solicitation is an attempt to commit adultery as a necessary step or ingredient in the offense. Section 767.

The question is a somewhat vexed one under the conflict of authorities relating to the various phases of the subject. The inquiry in this case is not whether solicitation to commit adultery is an offense in itself of a distinct character, but whether it is an offense because it is an attempt to commit adultery. The instances of such solicitation which have been brought to the attention of the courts are but few indeed, extending over a long period of years, but resort can be had to some of a kindred nature, or perhaps, more properly, which have a bearing on some of the principles involved. In the case of Rex v. Butler, 6 Car. & P. 368, decided in 1834, sometimes cited, it was said: "An attempt to commit a misdemeanor created by statute is a misdemeanor itself;" citing Rex v. Harris, 6 Car. & P. 129. In Shannon v. Com., 14 Pa. St. 226, it was held that a conspiracy to commit adultery was not an offense; and in Miles v. State, 58 Ala. 390, a similar decision was arrived at. Adultery was but a misdemeanor, however, in that State also, though it is not apparent that any importance was attached to this fact in either of these cases. In Cox v. People, 82 Ill. 191, it was held that solicitation to commit incest was not an attempt to commit the crime of incest, which was a felony. We have not failed to note the criticism of this case, and the citation it relies on from Wharton's Criminal Law, above quoted by Mr. Bishop in his valuable work. But the case also. relies on Smith v. Com. and Com. v. Willard, supra and these cases are authority, as we view them, with other authorities herein cited, on the ground that the distinction mentioned sometimes drawn between attempts to commit felonies and attempts to commit misdemeanors, or between attempts to commit grave,

as distinguished from trivial, misdemeanors, is not a well-established one, nor well founded, when viewed merely as an attempt, and not as a substantive offense. Now, it seems to us that solicitation to commit adultery is no part of the act of adultery itself, and consequently cannot be held to be an attempt.

SUGGESTED

AMENDMENTS IN THE LAWS OF THE STATES AUTHORIZING THE ARREST AND DETENTION OF FUGITIVES FROM JUSTICE IN ANTICIPATION OF THE EXECUTIVE DEMAND.

The matter of extradition between the States composing the Union, and the proceedings incidental to extradition, are governed in part by the federal constitution and acts of congress, and in part by laws enacted by the several State legislatures. The act of congress upon this subject reads as follows: "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 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 no. tice of the arrest to be given to the executive authority making such demand or the agent of such authority appointed to receive the fugitive, and to 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 and expenses incurred in apprehending, securing and transmitting such fugitive to the State or Territory making such demand shall be paid by such State or Territory.

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Any agent so appointed who receives the fugitive into his custody shall be empowered to transport him to the State or Territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent while so transporting him shall be fined not more than

hundred dollars, or imprisoned not

more than one year. " This act was intended to carry into effect the following provision of the constitution: "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." It will be noticed that there is here no express authority for congressional legislation; and whatever power congress possesses in the premises is implied from the nature of the subject and the need of a uniform procedure in all, parts of the country. Upon these grounds the validity of the act of congress has been upheld by the courts. "This duty of providing by law the regulations necessary to carry this compact into execution, from the nature of the duty and the object in view, was manifestly devolved upon congress; for if it was left to the States each State might require different proof to authenticate the judicial proceeding upon which the demand was founded."' "There is no express grant to congress of legislative power to execute this provision; and it is not in its nature selfexecuting. But a contemporaneous construction, contained in the act of 1793, ever since continued in force and now embodied in the revised statutes, has established the validity of its legislation on the subject."" The act of congress, being valid, precludes any action by the State legislatures inconsistent with its provisions. It was, indeed, formerly doubted whether any legislation by the States, even upon matters wholly incidental and in aid of the purposes aimed at by congress, was not also impliedly forbidden;" but this doubt has been removed by the later decisions, as we shall soon see. The power

of arrest and surrender of fugitives from justice, on proper demand made, existed in this country before the adoption of the constitution and is therefore not dependent upon that instrument for its existence. Its exer. cise was a recognized practice among the

1 Act of 1793, 1 Stats. at Large, 302; Rev. Stats. of the U. S., §§ 5278, 5279.

2 Article IV, § 2, Cl. 2.

3 Kentucky v. Dennison, 24 How. 66, 104.

4 Roberts v. Reilly, 116 U. S. 80.

5 By Story, J., in Prigg v. Penna., 16 Pet. 539, 617; Degant v. Michael, 2 Ind. 396; Ex parte McKean, 3 Hughes, 23.

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