Belgium and Prussia. There was no extradition treaty between the United States and Belgium. The question arising was, can the German government, under the provisions of the existing treaty for the extradition of criminals, rightfully demand the surrender of the fugitive, in order that he may be tried and punished in Prussia for the offence which he is alleged to have committed in Belgium? The treaty provided that the two governments should, on requisition, deliver up to justice all persons who being charged with the crimes therein specified, "committed within the jurisdiction of either party, shall seek an asylum, or shall be found, within the territories of the other." Blatchford, J., decided inasmuch as the laws of Prussia provided for the punishment of those who, while subjects of Prussia, committed the crime with which Stupp was charged, in foreign territory, and as a prosecution had been commenced against Stupp therefor in Prussia, that the crime of Stupp could properly be held to have been committed "within the jurisdiction of Prussia," in the sense in which that term was used in the convention. The prisoner was remanded to the custody of the marshal. After this decision had been rendered, the question involved was submitted to the consideration of the Attorney-General, by the Secretary of State. The opinion of the Attorney-General was that the case did not come within the treaty, and the prisoner should not be surrendered to Prussia. In his opinion, the Attorney-General says: "To affirm that the jurisdiction of Germany, by virtue of its own laws for the punishment of crime, extends over the territory of Belgium, is necessarily to hold that the same jurisdiction extends to France, Great Britain and the United States, and indeed to every nation and country of the world. Manifestly, the words 'committed within the jurisdiction' imply that the crimes named in the treaty may be committed without the jurisdiction thereto. But if the crimes committed in Belgium were committed within the jurisdiction of Germany, then it follows, as Belgium is as independent of Germany as any other nation, that it is impossible for crimes to be committed outside of the jurisdiction of the German empire.” The prisoner not having been delivered up within two calendar months after his final commitment, an application was made under the 4th section of the act of Aug. 12, 1848 (9 ̊U. S. Stat. at Large, 302), to Judge Blatchford, on notice to the Secretary of State to discharge the prisoner out of custody, and he was discharged. Afterwards Stupp was rearrested to await the issuing of a warrant for his surrender to Belgium, under a treaty of extradition with that country concluded March 17, 1874, on a charge of having committed murder and arson at Brussels, in Belgium, on October 2, 1871. He was brought before the Circuit Court for Southern District of New York, on a writ of habeas corpus, and the proceedings before the commissioner were brought up by certiorari. In re Joseph Stupp, 12 Blatchf. 502. The provisions of the Revised Statutes were considered as affecting jurisdiction of the court on habeas corpus, over the findings of the commissioner, and the conclusion reached are stated supra, that that court had no power to review the evidence adduced before the commissioner to decide as to its sufficiency. The court refusing to review the questions of fact, the writ was discharged, and prisoner remanded to the marshal. EXTRADITION OF FUGITIVES FROM JUSTICE, FROM THE SEVERAL STATES OF THE UNION. Section I. Nature of the obLIGATION. II. THE CRIME COMMITTED. III. THE ACCUSATION. IV. THE FLIGHT OF THE ACCUSED. V. THE DEMAND OF THE FUGITIVE. VI. THE ARREST AND SURRENDER. SECTION 1. NATURE OF THE OBLIGATION. THE Colonies recognized the obligation without formal compact. Ch. J. Tilghman, in the case of The Commonwealth v. Deacon,' says: "That prior to the American revolution, a criminal who fled from one colony, found no protection in another. He was arrested wherever found, and sent for trial to the place where the offence was committed." The following extract from the Colonial Records of Pennsylvania will show that in 1585, the rights of sovereignty were duly respected and the law of national comity readily conceded. "The 24th of ye 5th Mo., 1685.” "Wm Haigue request ye secret that a hue and cry from East Jersie after a servant of Mr John White, 593] march at *New York, might have some force and 1 10 S. & R. 129. authority to pass this Province & Territoryes; the Secrety indorsed it and sealed it with y° seale of y° Province."1 The "articles of confederation," contained the following clause: "If any person guilty of or charged with treason, felony or other high misdemeanor in any state, shall flee from justice and be found in any of the United States, he shall, upon the demand of the government or executive power of the state from which he fled be delivered up and removed to the state having jurisdiction of the offence.' The provision as it now stands in the Constitution, Art. 4, sec. 2, is in these words: "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 is stated by Mr. Madison that the word "crime" was substituted for the words "high misdemeanor," in order to comprehend all proper cases, it being doubtful whether "high misdemeanor" had not a technical meaning too limited." The executive of Virginia having, in 1791, in consequence of the want of direction as to the mode of discharging the duty, shown some hesitation to deliver up a fugitive from justice on the demand of the executive of Pennsylvania, the attention of Congress was called to the subject by President Washington, *and on 12th [594 February, 1793, was passed the "Act respecting fugitives from justice, and persons escaping from the service of their masters." By the 1st and 2d sections of this act it is provided: 1 1 Penn. Col. Laws, &c., 96. 1 Rob. Pr. 11; Madison Papers, vol. 3, p. 1447. 31 U. S. Stat. at Large, 302. Sec. 1. That whenever the executive authority of any state in the Union, or of either of the territories north-west or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled, and shall, moreover, produce a copy of an indictment found or an affidavit made before a magistrate of any state or territory as aforesaid, charging the person so 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 prisoner so charged fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured, and 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. But if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged. And 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. "Sec. 2. That any agent, appointed as aforesaid, who shall receive the fugitive into his custody, shall be empowered to transport him or her to the state or territory from which he or she shall have fled. And if any person or persons shall by force set at liberty, or rescue the fugitive from such agent while transporting, as aforesaid, the person or persons so offending, shall, on con595] viction, be fined not exceeding five hundred dollars and be imprisoned not exceeding one year.' Mr. Justice Story, speaking of these sections in the 1 These sections with some immaterial verbal modifications have been reenacted to the Revised Statutes of the United States, page 1027. case of Prigg v. Commonwealth of Pennsylvania,' says: "Not a doubt has been breathed upon the constitutionality of this part of the act; and every executive in the Union has constantly acted upon and admitted its validity." Although the constitutionality of the law of 1793 has not in respect to the first and second sections been questioned, and the obligation imposed by the Constitution has been uniformly recognized; there nevertheless has occurred an occasional conflict of opinion among the executive magistrates of the states as to their respective right and duties under them. Some of the points thus raised remain undetermined, the contending parties standing respectively upon their convictions and their sovereignty, and calling no umpire; and some have experienced those vicissitudes of fortune to which all legal questions connected with the politics of the day are exposed in a country of free and earnest and incessant discussion. Several particulars contemplated in the statute will be considered in following sections. SECTION II. THE CRIME COMMITTED. The words of the Constitution are, "treason, felony or other crime." No controversy has arisen as to the crimes enumerated, viz., "treason and *felony"; [596 but the words, "or other crime" have been the subject of frequent discussion. The opinion has been advanced by some that the provisions referred only to such "crimes" as were offences by the laws of the respective states at the time the Constitution was adopted. Others have maintained that the character of the alleged criminal act is to be determined by the laws of the state to which the fugitive has fled, 116 Peters, 620. |