from it appearing on the face of the warrant that such copy has been produced to the executive, and that the warrant had issued in consequence thereof, it appears on the contrary that the executive acted on the representations of the executive of the state of Arkansas, to the effect that the relator stood charged with the crime of forgery in that state. These were altogether insuffi627] cient to give the governor *jurisdiction in the case. The representations of the executive of the demanding state are of no effect unless supported by a duly authenticated copy of the indictment found, or affidavit made. These are prerequisites to the issue of the warrant; and without these it is void and gives no authority to arrest or detain the person alleged to be charged. We are of opinion that the warrant should show on its face that such authentic copy of the indictment or affidavit had been produced to the executive."

Before the prisoner was discharged the court was moved to detain him until another warrant could be procured, which motion was supported by the affidavit of the sheriff from Arkansas, who was appointed in the requisition, agent, &c., that he had seen the indictment, that he knew a copy had been presented to the goyernor of Texas with the requisition, &c.

But the court said they had no power to detain him. In Missouri it has been held that the governor's warrant should be under the seal of the state, and a warrant upon which an impression of the seal of the state was not discoverable was held void and the prisoner discharged.'

1 Vallad v. Sheriff, &c., 2 Mis. 26. In North Carolina it was held that in deciding questions which arise under writs of habeas corpus, in cases of extradition, the judiciary may review and control the action of the governor in regard to points of law; but cannot interfere with such action in regard to any matter within the discretion of the governor. In the matter of Hughes, Phill. L. (N. C.) 57.

SECTION VIII.

STATE LEGISLATION.'

It does not appear that the constitutionality of the act of Congress of 1793, in relation to the apprehension and surrender of fugitives from justice has ever been contested, or that the executives of the *several states [628 were not thereby invested with power to discharge the constitutional obligation resting upon them.

At the same time it must be confessed that the circuity and consequent delay of the proceeding prescribed renders it sometimes ineffectual; and has led to occasional trespasses upon territorial sovereignty which, between "states dissevered," could never be tolerated.

The testimouy of the late very able and experienced Chief Justice of Pennsylvania would doubtless find some corroboration in every state in the Union. In Dow's case,' Ch. J. Gibson says:

"The constitutional provision was not devised for the benefit of the fugitive. It was intended to obviate the principle that one government may not execute the criminal laws of another. The practice has been to arrest on hot pursuit, a fugitive from justice wherever found; and were not the violation of territory consequent on it, tolerated by common consent, few fugitives from

In Robinson v. Flanders, 29 Ind. 14, it was held that while Congress had not determined what steps the governor should take to secure the arrest of the person demanded, it was left for the states to provide such reasonable method as will best secure the discharge of the obligation imposed by the Constitution of the United States. In California it was held that state courts of general original jurisdiction, exercising the usual powers of common law courts, are fully competent to hear and determine all matters, and to issue all necessary writs for the arrest and transfer of fugitive criminals, to the authorized agent of the state from which they fled, without any special legislation. In matter of Romains, 23 Cal. 585. In that case the prisoner was a fugitive from the territory of Idaho. The provision of the Constitution of the United States was held not to apply, but it was decided that under a statute of that state the governor had a right to issue a warrant for the arrest of the fugitive. 2 18 Penn. 37.

justice would be brought back. In its practical results the constitutional provision is nearly inoperative. The tardy publicity of laying a ground for demand by indictment or affidavit, of transmitting the documents to the proper executive, and of procuring a warrant of arrest from him, necessarily warns the fugitive of his danger, and leads to another flight. It was formerly the practice of the governor of this state to act in the matter by the instrumentality of the judiciary; and though I have issued many warrants, none of them has been followed by an arrest. The consequence of the inefficiency of the constitutional provision has been that extra-territorial arrests have been winked at in every state."

629] *This "constitutional provision" however, it must be remembered, was devised as a rule of conduct between sovereign and independent states, and contains all they could concede with a just regard to their right of exclusive dominion over their respective territories. The act of Congress may be imperfect and imperfectly executed, yet it will not be denied that the sovereign power of the state, in a matter seriously affecting the liberty of its citizens, should act with great circumspection. And the law itself may appear less exceptionable when we remember that if the guilty sometimes escape by the delay which it permits, the innocent are sometimes saved by the deliberation which it requires.

The states have not however been insensible to this obligation, nor have they excused themselves by doing only what the act of Congress required. That requires no arrest of the fugitive until after demand made upon the executive, &c. But we have seen that in several of the states the judiciary, without special state legislation have found authority in the principles of the common law to arrest the fugitive before the executive demand is made, and to detain him in custody until notice could be given to the proper authorities, and his surrender regularly demanded.

In some states laws have been passed conferring this power upon justices of the peace, and other judicial officers; and in some, a summary hearing and surrender appear to have been authorized without requiring the delay incident to executive intervention.

*In the case of Prigg v. The Commonwealth of [630 Pennsylvania,' the Supreme Court say:

"If Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the state legislatures have a right to interfere; and, as it were, by way of compliment to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject matter. Its silence as to what it does not do, is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognized by this court in the case of Houston v. Moore,' where it was expressly held that where Congress have exercised a power over a particular subject given them by the Constitution, it is not competent for state legislation to add to the provisions of Congress upon that subject; for that the will of Congress upon the whole subject is as clearly established by what it had not declared, as by what it has expressed."

This rule was recognized and applied by the Supreme Court of New York in the case of Jack v. Martin."

*It is of course quite obvious that the states can- [631 not add to the conditions specified in the act of Congress, nor release their executives from the duty which it enjoins. They cannot in any manner or to any extent contravene or embarrass the execution of its provisions.

1 16 Peters, 608.

12 Wend. 311.

25 Wheat. 1, 21, 22.

But that they may not by statute enforce the performance of the duty which it enjoins upon their executives by subjecting them to a state accountability for neglecting it, or otherwise facilitate the discharge, of the constitutional obligation, are questions which ought not to be considered as altogether foreclosed by the rule applied in cases not identical.

Perhaps such legislation by the states when in no sense opposed to the law of Congress, may be rested upon the general police power of the states which was so ably contended for by Mr. Justice Baldwin in his opinion delivered in the case of Holmes v. Jennison,' where the power of the states to surrender fugitives from justice from foreign states was in 'question, and which was conceded in the case of Prigg v. The Com. Penn., to exist in the states, in the following terms: "We entertain no doubt whatsoever that the states, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds and paupers."""

114 Peters, 540.

In Kentucky v. Dennison, 24 How. (see p. 610 for the facts of the case), where a mandamus was applied for to compel the governor of Ohio to surrender a fugitive upon the requisition of the governor of Kentucky, the writ was denied. The court said "the demand being thus made, the act of Congress declares, that it shall be the duty of the executive authority of the state' to cause the fugitive to be arrested and secured, and delivered to the agent of the demanding state. The words 'it shall be the duty' in ordinary legislation imply the operation of power to command and coerce obedience. But looking to the subject-matter of this law, and the relations which the United States and the several states bear to each other the court is of opinion, the words 'it shall be the duty' were not used as mandatory and compulsory, but as declaratory of the moral duty which this compact created when Congress had procured the mode of carrying it into execution. The act does not provide any means to compel the execution of the duty, nor inflict any punishment for neglect or refusal on the part of the executive of the state; nor is there any clause or provision in the Constitution which arms the government of the United States