Omaha daily bee. (Omaha [Neb.]) 187?-1922, June 12, 1904, EDITORIAL SHEET, Page 16, Image 16

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Qn'.ic Ff 1 1 d to Oort In ni Tcm
1 rr.i .n C
RIGHT OF H.'D-. i. oohPJS IS U.'litlO
Pall Text of tire Uplnlons Delivered
by Jat- r.e.JIrt, Ironpe and
Day Derllinic on ih
For th bcnof.t, ci ti.o JUlty as wcil os
the legal pto'.ff j.j.i .v.: j or ln.cr1til
In the matter, 'iue b-e iiere prinu in lull
the opinion of the threw Judges who sit to
hear the app.:t-i.o.i o. Licr.niion
for a writ of l.a.-J corpus. V!:e great
principle lnvo.vid la unu tnut .whw nut
to every one, the question Wins t.iat ul
whether a pr. iur in ui rived of his lib
erty by due procen of la. 'i'n l'Uht t
habeas corpu U u;l:cld by the court, all
of the Judges agree, im, und nth presenting
his line of reasoning, 'iho opinions are aa
When the court had anemUed, Judse
Pa- iald: "The parties nro In oourt In
the matter Of the app:ieaum Of Thomaa
Dennlfton for a writ of babea corpus and
the court la ready to pis upon the question
which waa suLinittcd to ua i-nd Judge
RedicH Will unnounce the conclusions of
the court on the motion."
Jadge Itvdlck'a Opinion.
Judge Keoick then gave out the Opinion
of the court ua ioi.ovs:
"It will not be i.e-i-sury to make any
extended taiemuiu ua to what tne Issues
f thia case arc than to aay that
the prisoner U hiua u u.e cuJ.udy of tm
respondent on a warrant issued by tnj
governor of the siaio of Noorusna based
upon an tndicinient lounJ lu ino siaie ot
Iowa, charging tne defendant with the
erime Of receiving and aliiug in concealing
tolen property la tho courtiy Of ilarr.son,
In the state 01 luwa, anu upon aa a:Sd.vll
filed before tuc governor that tno defendant
baa fled from tne slate of Iowa and la a
fugitive from tho Justice of the Slate of
Upon that showing the governor Issued a
warrant authorising tho arnal of the pe
titioner, and providing that he should be
turned over to the authorities of tho state
of Iowa, or to an agent appointed by the
authorities of that slato to receive Inm tor
transportation to the county of Harrison
and state of Iowa for trial.
"The petition for a writ of habeas corpus
was filed In this court after the arrest ol
the accused had been mndo, and while he
wao In the custody of the agent of the
state of Iowa. He has been brought Into
oourt upon the writ tasued upon that peti
tion and la bore.
"The petition allege a lnrge number ot
(rounds tending to aliow that the petitioner
1 held unlawfully on this warrant. A
return was made by the agent having the
custody of the prisoner to the effect that
be held dm under a warrant of the gov
ernor. That return 'has not been traversed,
but the matter now submitted la as to the
sufficiency of the petition to sustain the
awuanc of the writ. That question Is
raised by a motion on the pert of the
cent of the demanding state, or the re
spondent in this proceeding, to queen the
writ of habeas corpus Issued by this court
On the ground that the fadu stated In the
application, which Is the basis of the writ,
did not warrant its issuance. We believe
that tbU Is a proper way, and the only
way, to raise the question of the suffi
ciency of the petition. But the argument
proceeds on such a motion the same as
though a demurrer bad been filed to the
, petition., In other words, the motion d-
mils all' the fact alleged In the petition
. and says that they do not constitute proper
' authority for the Issuanos of the writ
What la te De Determined.
' "Were we asked to pass upon the ques
tion simply of the sufficiency of the peti
tion In this case, this motion wou'd have
to be overruled at once, bncaure, among
the allegations In this potltlon. Is one that
there was no competent evidence before
the governor to authorize him to issue
this warrant. Put we have been requested,
. to hear, or tbe court has invited argument,
' upon the main and crucial question wi.loh
the petitioner her aeeks to present, and
have heard arguments upon It, and we pro
pose to pass upon that question regard
..J.cs of the technical one ot the sufficiency
of the allegations of the petition.
"The point made la that, before the gov
' ernor? of a tat Is either authorised or
required to issue his warrant of extradl
, tlon, or his warrant of commitment cai:ing
, for the transportation of the accused to
, tbe other state, It must appear to the gov
- ernor that tbe accused Is a fugitive from
i the justice of that other state, and It la
; claimed that Ike queetlun whether or not
be Is a fugitive I a question f fact, and
that the determination ef that question
In the negative divests tho governor of
any authority he may hare to Issue the
warrant; or, rat nor, to elate it moro ex
gctly, that the non-existence of that fact
' prevents tho governor from taking any
: cation whatever in the matter; that the
fact that the accused Is a fugitive from
Justice la a Jurisdictional tact without the
' existence of which the governor Is power
Jon to taauo his warrant. .
' Essence of Nebraska Statute.
"Upon this question It 1 suggested firsts
,;' by the motion, that the power of the gov-
' ernor of the state to order extradition of a
prisoner I not found exclusively in tho
' ooustltution and laws of the United State,
put that the statute of the state of N.
feraska have provided for ease beyond
; those provided for by the constitution And
laws ot the United Slate. It may be
taken to J a proposition beyond dispute.
Under the decisions of the fedoral courts,
' both Uwer courts and the supreme court
pf the, Unltod States, that no extradition
i eu be bad of a prisoner from on stats
to another unless be be a fugitive from
Justice from the state to which It Is sought
to remove him. Put,, as I say, It Is toon
tended that section Hit of the statute of
Nobraaka, and contained In chapter xxxlll
or xxxlv at any rate contained in the
chapter governing hnboua corpus It I pro
. vided that a prisoner iuay be extracted
regardless of the question whether or not
be la a fugitive from Justice. It may be
that the respondent In this case is pre
cluded from raising this qtfcsilen on the
ground that be doe not claim to hold the
prisoner for any other reisou except that
be committed a crime In tho state of Iowa
and Is a fugitive from the Justice of the
atate of Iowa; and the warrant of the
governor proceede upon no other theory,
but recites that the petitioner, Tom Pn
niaon, Is charged with th-i crime of re
ceiving and aiding In concealing stolen
property and Is a fugitive from the Justice
Of the stato of Iowa. 0o I say that we
' are not clear that It Is open to the re-
s spondent, tbe movor of tb!s motion rather,
to claim any right to l.nld the prisoner
under any dlffcrtnt theory, or under a
different prope'llon than that he I a
fugitive from Justice. However, we will
discuss the quest lou briefly. And I might
aa well uy her that, while ,am an
nouncing the conclusions of the court, the
other member tUircuf d" but mnMr
hlselvs bound, or rut her ure not t
be considered boi n:l by tt-e r.rgumeni that
I may use or any statement I may muk
MMtki law of tbe case. We are agreed
at to the conclusion ef law la Ik ease,
and that Is all
rrorlsfea t the tnte.
"Srttlisn 1A contains a fo'. Iso at the end
of tl.e c;v,n. 'i'h first part ot the see
t en provide that no person shall be re
fnovd frcm the stnlo of Nebraska to any
Other state, a prls-wr, for any crime com
mitted vlth.n the yi?e of Nebraska. It provide certain pvf.altl against any
person v.ho are Inlciested and take part
n nny ric:i rcmjinl; jrovlded, however,
that ftny por.ion who ha committed any
triinc In nny other state, whore ho ought
to be tried for that crimo, liat he may be
sent to tt"t other stnte, and It Is that
proviso which It Is clnirned warrants the
exiriuKlon. reg..rdics of the question of
pettier or hot b la a fugitive from jua
tl e.
"Tills iwctlon "64 contains ttl the first part
an excrptlon, 'nxcrpt la case specially
rrovided for;' that Is. no removal shall be
had except In ca specially provided for
by fl'-ut.ii. It lirit came upon the statute
books of thia stale by an act passed In
i8-, cprroved November i, and was sec
tion I ot that ait and the exception which
I have read doubtless bad reference
to case provided for by another law In
existence at that time, and not now upon
the statute books, providing that the gov
ernor of the slate might enter into con
tracts with the governor ot other states
for the care of prisoners srntenced by the
courts of this state tor crimes committed
In this state, because at that time there
was no adequate provision In this state
for taking care of such prisoner; and. the
exception which I have just read doubtless
had reference to that special provision of
the law.
"Section S33, which la declaratory of the
law of the United States, authorises tbe
governor to extradite an accused when he
has committed a crime, or stands charged
with the commission of a crime in sny
other atnt and 1 a fugitive from Justice
of that state, because the provision Is that
In casvs provided tor by tho constitution
and laws of the United State the governor
shall issue his warrant when It la made to
appear that the defendant stands charged,
to. Under that section it must appear
that the defendant was a fugitive from
Justice, otherwise the governor has no
power to issue his warrant. That section
I have been nimble to find prior to the
Revised Statutes of No doubt it was
passed prior to that time, but it was not
in the criminal code of 1858, so-calied, or
the collation of the criminal laws In 1IJ,
and doubtless was a subsequent enactment
to section 364. Dellevlng that to be true,
It probably was Intended by this proviso
to except or exclude from the prior pro
visions of that section case of extradition.
Dnty f the Conrt.
"The laws of the United State upon that
subject have existed since 1793 and the con
stitution ever since It was adopted. No
provision In this stato with reference to
extradition appears prior to this section
864. As I say. It antedates section 833, and
considered a separate enactments prior to
tho adoption of tho atate constitution of
JSG7, the first constitution, or the constitu
tion of 1875, the latter law would probably
control the former. But we are not called
upon to determine thoae questions. These
two laws were Incorporated Into the re
vision of ISM), and also that ot 1873, and
have been continued In the statute books
from that time down to the present, and
they are two provision apparently refer
ring to th same subject. In that case it
la the duty of the court to harmonize them
if possible.
"Under section 864, when originally en
acted, and until the enactment ot section
833, there was no method provided by the
state for the enforcement of that act no
power granted by the state to the governor
to Issue his warrant M such 'cases. The
power was given and the duty imposed,
however, by the United State statute. It
may be that prior to tbe enactment of sec
tion 838 the power of the governor under the
proviso was greater than It would hav been
under the statutes of the United State,
and w are not agreed upon the question
whether It la competent for a state to en
large the cases In which extrsdltlon may
b had. - I do act propose to dtacuas that,
but assuming that It was, the enactment
of section 838 curtailed the power of the
governor In those oases; It re t rioted hi
power to case provided for by the consti
tution and laws of the United States. And
while the extetnnee of these two
sections Is something of an an
omaly lu a statute, by , construing them
together under the ordinary rules In the
construction of statute so that it may be
possible that both may stand, w con
clude that section 838 Is the only one which
grants power from the state to the execu
tive to Issue hi warrant for extradition,
and that the effect of that section la to
restrict his power to such case aa are
provided for by the constitution and laws
of the United State. .Therefore It fol
lows that In order to hold the defendant In
this caae, or, rather, the petitioner In
this case, the defendant under the war
rant, the respondent In the habeas corpus
proceeding must show that be 1 a fugi
tive from Justice.
Right of the Petitioner.
By disposing of that question, we come
to tbe really - Important question In this
case, aud 1 will not discus It at any
length, but announce the conclusions of
tho court thereon, which, I think, will be
satisfactory to all parties concerned, so
far a the discussion la concerned. The
point Is thia: The petitioner claim the
right in this proceeding to introduce evi
dence upon the question of fact as to
whether or not he was a fugitive from
Justice. The respondent denlee his right
to do that, his position being that the
governor, having before him a duly certi
fied, authenticated copy of the Indictment
found In Harrison county, Iowa, and an
affidavit to the effect that the prisoner or
the accused had actually fled from the
state ot Iowa and was a fugitive from
Justice, and the governor having acted
npon that evidence and issued his warrant,
that It la not competent for the court in
this proceeding to go behind the evidence
before the governor. la other words,
that in this proceeding this court Is con
fined In its Inquiry to the determination of
whether or not there was any evidence be
fore the governor which would warrant
him In the conclusion, or the finding, that
the petitioner w a fugitive from Justice,
and having proceeded to that point and
found that there was anm evidence be
fore the governor upon that proposition,
then the court I powerless to go behind
that evidence or to receive evidence con
tradicting that prima facie ease made be
fore the governor, and that the issuance
of the warrant of the governor having de
termined the first fact, that there was
evidence before him upon' which the war
rant was Issued, Is conclusive upon the
courts, conclusive upon tbe right of the
petitioner In this case, upon that question
cf fact. Or the other hand. It is claim. 1
thnt the warrant of the governor la only
rrlma fr.cle evidence of the existence of
that fact.
Anthorltlee on the Pnlnf,
"The authorities seem to be rretty well
as one upon tho question that the warrant
is only prima facte evldauce ot the exis
tence of that fact, but the respondent
nys Ihnt It Is prima facie evidence without
any further inquiry, and that the oourt
examines tKe evidence taken pefire the
governor "d finds that there wa soma
evidence upon the question of fact Involved,
then the court, having deterrnlnod that fact
the warrant of the governor becomes pon-
luslve. and no further evidence can be.
lecelved. There have been a large number
of case qUcJ Ikud r4 bearing upuu thia
proposition. They may be divided lato
three claeaeet
first where the prisoner ha been com
mitted by a committing magistral on a
preliminary examination, or by a United
State commissioner on a preliminary ex
amination, end he sues out a writ of ha
beas curpus end claims that he u unlaw
fully restralnod of his liberty, and the
weight ot authority unquestionably Is that
In theM ease the court will not Inquire
a to the weight ot tho evidence before
the eommiloner or before the examining
magistrate, but on the writ will simply
Inquire whther or not there wa evi
dence before tbe magistrate eulficletit to
make out a caae of probable cause, and If
o, the court will not Interfere with the
writ, but will remand the priaonor tor
"The eocond class of cams Is thoee where
the prisoner was held upon the governor's
warrant th same aa here, but the caae.
were submitted Upon the record; that la,
there was no attempt made to Introduce
any further testimony by tha party having
the writ, but the question was submitted
upon the record made before the governor,
and in thoso case the rule seems to be
well eatAhlinheri that if thnre was evidence
before the governor, at least competent
evidence before the governor tending 10 ee
tnhtlah the farts neccBsari' to the exercise
of his power to lsuc the warrant, the
courts will hot Interfere with tne exercwe
of that power, but will remand the pris
oner. Cases Directly In Point.
"The third clnns of cases have particular
refnrenr.e to the Question here as to the
right of the petitioner In habcaa corpus to
Introduce further evidence upon the ques
tion. It would subserve no useful purpose
for me to take up these cases and distin
guish them, or give the reasons which ac
tuate the court In reaching tho conclusion
they have, but the distinction between the
various classes of cases may bo proper o
call attention to. In tho case of a com
mitting magistrate the defendant Is enti
tled to be present; he has a right to bo
present he has un enforceable tight to bo
present, end not only has he a right to bo
present, but he has a riftlit to call wit
nesses, and the examining mnlstrate
must receive the testimony of those wit
nesses ond pass judgment on all 1he tcs-
testlmony received. Ho is a juairuu o.n
cer; he 13 exercising' Judicial powers
rnrh.n h nnKsea unon that teF'.lmony: the
defendant Is in court; he has to be heard
In court; he has a rlKht to produce his wu
tiMi and It Is consonant with good logic
and sound common sense that where the
defendant has had an opportunity to D
the very oueetton as to
whether or not he shall be held for trial
before the examining magistrate, that hav
ing been heard, or having had the oppor
tunity or right to be heard, whether he
takes advantage, of It or not, that that
question Is closed so far as he Is con
cerned, and he wjll be held to trial.
HoTrrnor Not a Jude.
"Now, what la the difference between
ih.t aa and tha case that we are dls-
cuaslng? The governor of the- state of Ne
braska haa no Judicial powers, no i.
sometimes act' In a quasl-Judlelal manner,
but It 1 conceded on both sides, and we
think It the law, that in the Issuing of a
warrant he la not exercising Judicial pow
ers He Is obeying the command of the
con'stitjtlon and laws of the United States
to give up to a sister state a fugitive from
Justice. He ha no discretion In the mat
ter when It appears that' a person is
charged with a crime and that he I a
fugitive from Justice. It Is said that the
petitioner In this case was notified. It
does not appear In evidence, but conceding
It to be a fact that the petitioner In this
... notified of the hearing before the
governor, and given an opportunity to go
down there and protest, ir no oesireu .
make such showing a he desired against
the Issuance of this warrant, It Is claimed
that having had such opportunity that he
Is bound by the decision of the governor
the same a he would have been by a pre
liminary examination before an examining
magistrate. But the cases are entirely
diw.l tmm a. letral standpoint. The law
distinguishes between what a man may do
as a matter of grace, a matter oi vur, r
. eniirtrnv. and what a man un
der the constitution and laws of his Stat
haa a right to do and a rignt 10 insist mui
he baa a right to do. The authorities are
unanlmou upon tho proposition that a
prisoner has no legal right to go before
,v.rnor of a state and Introduce evi
dence upon the question as to whether or
not a warrant shall be Issued. If the gov
ernor receives testimony, he receives It as
t at nf crrnoe or favor to the prlfoner,
and not as a matter of legal right to the
Right at the Prisoner.
"It result from these considerations,
h.t n Autv rented upon tha prisoner to
apply to the governor for uch favor in
the least. Ho may stand upon hla legal
right and pront them to any court hav
ing Jurisdiction and power to pas upon
v.. b. in tnv view, there Is a wide
.... tU. ww, " " -
distinction between the cases where there
haa been a preliminary examination oerore
a Judicial officer like a commissioner of
tv.. TTnitct states havlna- power to ex
amine preliminarily, or an examining mag
istrate ot tne .staie or , nrur
county of Douglas, and the case where
the governor of a state, who Is the execu
tive officer In this particular Instance, any
no tudlclal powers, hears
a matter ex parte, and the defendant has
no right to appear and re neara ana io
call witnesses. Therefore we think those
cases do not apply to this case.
"The second class of cases, where It wa
on a governor's warrant, but the cases
wr submitted upon the record, are not
authority In a case where It la sought to
try the case upon ms'ters not in tne
record beforf the governor. They are
not authority upon th question of the
right of the party to be heard. I can at
i.niinn rtht here to this class of cases.
where the court say. In some cases that
the warrant of the governor Is conclusive
upon the prisoner. Of course it is enn
the Diisoncr where he sub
mits his cass upon theroeord, and aa ex
amination of that record ry tne court
shows that th governor acted within hla
4,i!.iitlnn There 1 only on Question.
a question practically of law there: Doe
the record ahow that the governor acted
within hi lurlsdlctlon and wa he author
ized to Issue the warrantT That Is the
only question in tne case. Ana wnen you
submit It In that way the warrant of the
governor It conclusive when the court
find that he had Jurisdiction to act. But
In this case it la practically conceded that
tho warrant of the novernor la nrlma
fuels evidence only until that prima facie
evidence I overtnrown py competent proor.
Pawer of th Court.
The third cine of case, It seem to
m- and to- th court, control here. The
theory upon which a court ot justice, on
the hearing of n application fur a writ of
habeas corpus, will Inquire Into a question
of faot before an inferior tribunal, board
or officer, that la Inferior In the sens of
being subject to review by this oourt. Is
that the existence or nonexistence of a
fact inquired of determines the Jurisdic
tion ot the party to proceed and act, or
ef th officer to proceed at all. Jurisdic
tion means only this, In the briefest defini
tion: It I th power ond the right to
bear and determine the question. When
the power I granted to an officer or to a
court, or to a board In special cases, the
power does not extend beyond the cases
mentioned In the get. Whore the power I
to be exercised la a certain niannvr. the
rnRnner cf the exercise constitutes the
measure of the power, and where the
jurisdiction ef aa officer t get d open 4
upon the eaiwence ef some f?t, that fact
Is always open to Inquiry In another court
where the finding or Judgment or order
sought to be enforced sgalnst him Is
brought Into question. Th Jurisdiction of
court, even to act Judicially, has always
been the subject of Inquiry before It Judg
ment are said to be binding and con
clusive. Mast Establish raets.
"W consider It beyond question that the
governor In this state ha authority to
Issue his wirrnnt to extradite a piieoner
to a lster state for trial for crtm only In
a ca authorised by the constitution and
laws of the United States, and they pro
vide only that h may be extradited when
he Is a fugitive from Justice. So, before
the governor may act and Issue his war
rant. It must be established that (he) the
accused I charged with a crime, and the
fact must be established that he Is a fugi
tive from Justice. The decisions of the
supreme court of the United States, and
other federal courts, are at one upon tbe
proposition that no man can be considered
a fugitive from Justice unless at or about
the time of the commission of the crime
he waa In the atate where the crime Is al
leged to have been committed, and It Is
proposed to prove here by this testimony
offered that the petitioner waa not In the
state of Iowa at or about the time this
crime was committed. It Is objected that
this testimony tends to prove an alibi, and
that that Is a matter of defense for the
prisoner to make In the state of Iowa, and
not on which he can call upoh this court
to decide. It is a question Involving his
Innocence or guilt. There Is no doubt but
that this court has no authority to Inquire
Into the guilt or Innocence of the accused;
they have nothing to do with that proposi
tion In this proceeding, and they have noth
ing to do with any questions which are
solely and only matters of defense to the
prisoner upon the trial, and If the matter
sought to be Introduced In evidence goes
no further than a mere alibi, then the
authorities are to the effect that evidence
merely amounting to an alibi havo no ap
plication. That is the rule unquestionably
If It were sought to Introduce evidence, for
instance, in this case that the petitioner
was not In Harrson county, Iowa, simply,
or that he was In the city of Council
Mluffs, or that he was In the city of
Dubuque, Dos Moines, or any other city
within the slate of Iowa, tho question
would be governed by those cases, that evi
dence only tending to prove nny alibi will
not be received. It would be competent for
the respondent In that case to prove an
alibi, to prove that he was anywhere
within fifty or 100 feet of the place where
the crime was committed and not at the
place where the crime waa committed. If
he could aa'tlsfy the Jury that, he was not
there at the particular place, his alibi
would be proved and perfect. He would
not have to provo that ho was out of the
city, or even of the county, or In another
building. So much evidence merely tend
ing to prove an alibi would not be re
ceived. But the evidence here goea farther
than that. The evidence here la offered, not
for the purpose of proving an alibi, but tor
the purpose of proving the nonexistence of
a Jurisdictional fact, without which the
governor could not act. It does not mat
tor that the same evidence upon this
Jurisdictional fact might or would estab
lish, if sufficient, an alibi. That does not
make any difference; if It establishes the
fact in question, it Is Immaterial that It
may also establish an alibi.
Questions Well Settled.
"These question, It seems to us, have
been settled and determined by the circuit
court of appeals of the District of Mary
land In the matter of Bruce against Ray
ner. In that case the accused was charged
with having committed bigamy In the state
of New Jersey. A requisition was obtained
and presented to the governor ot the state
of Maryland requiring that the prisoner be
delivered over to the authorities of New
Jersey for trial, and the governor Issued
his warrant. A writ of habeas corpus wa
Issued out of the circuit court for that dis
trict, or the district court, and the matter
wa heard, and the petitioner proposed te
introduce evidenoe upon the question of
fact to show that he was not a fugitive
from Justice. The lower court refuted to
permit that evidence to be Introduced. Now
the facts were that he was a married man
hi New Jersey prior to 1897, and while his
first wife was living, and In the year 1897,
the prisoner contracted a second marriage.
The charge was that bis former wife was
living, and that his second marriage wa
bigamous, and that he was guilty of th
crime of bigamy. No Indictment waa found
until 1902, some five year after the con
traction of the seoond marriage. Upon th
hearing of th writ of habeas oorpus the
piieoner proposed to show that he was mar
ried at the time alleged In 1897; that he re
mained within the state of New Jersey for
a period of three year after hi marriage
and did not conceal himself during that
time, and that by the laws of the state ot
New Jersey no Indictment could be found
unless within two year after the date of
the marriage. That is a defense of the
statute of limitations. It Is a- perfect de
fense, it is true, to the prisoner, If the law
did not permit an Indictment to be found
except within two years. It was a perfect
defense for the prisoner . to go Into the
state of New Jersey and set up the very
facts upon which be relied for hi writ of
habeas corpus of his residence In the state
of New Jersey for three year and th fact
that an indictment was not found within
two years after that date while he was In
New Jersey, and subject to their law, and
within the reach of their oourt. It would
have been a perfect defense, aa I aay.
Court Must Receive Evidence.
"The lower court In this case refused to
permit the accused person to present that
testimony. Tho court of appeals, In a
thorough discussion of the authorities, re
versed the case, and aald It waa error
for the lower court not to receive the evl
denne offered by the prisoner, not for the
purpose of establishing the fact In Mary
bind that the crime had been barred by
the statute of limitations In New Jersey,
but to establish the faot that he waa not a
fugitive from justice; that he had lived In
the state of New Jersey during the entire
period within which he oould have been
arrested. Indicted and tried for the, crime
charged, and that therefore, having lived
In the state ot New Jersey for that time
he was not a fugitive from justice and
oould not be extradited on the ground that
he was a fugitive. That Is, tbey received
the evidence upon that question of fact,
and you will notice that the same faot
Identically upon which the court acted In
tho habeas corpus proceeding would have
ccnstltuted a perfect defense to the caae
had the prisoner been extradited and sent
over for trial. So It dons not matter that
the same evidence proves an alibi. If It
serves to prove another fact which Is Juris
dictional, It would be received aa proof of
that fact, no matter If It may at the same
time prove an alibi.
vffleleney ot Indictment,
"This case la crltlclaed by counsel for the
motion on th ground, a they claim, that
It does not appear that there wo any evi
dence before the governor upon the ques
tion that the prisoner wo a fi'gitlv from
Justice. The stntement of th case con
tain this language: The warrant of the
governor of Maryland doe not disclose
whether he considered any evidence bear
ing up the question: Wa the piieoner,
Thomaa Bruce, a fugitive from justice,
nor whether be considered the sufficiency
of the Indictment. When the caae wa
heard In th circuit court no teettmony
wa received upon that question: Wa
the petitioner a fugitive from justice It
I also claimed tfcat the ease doe net
how that there waa any teettmony before
th governor upon that ftaeatlo, a4 the
12, 1904. '
statement I hot dear on th subject, but
It ayt The paper accompanying the
demand by aald got ernor of New Jersey
being certified a authentic by him.' It
speak of th Indictment having been pre
vented to the governor, and the paper ac
companying tbe demand were certified a
autbentio by him. It 1 a fair inference
that there waa an affidavit probably before
the governor upon the question of hi being
a fugitive from justice. It may not be nee
essary, however, to determine that fact ab
solutely. Governor Finds Ha Fact.
"What does the record say In that regard
In thia warrantT It Is addreaaed to Oeorg
M. Christian, respondent. 'Where, Albert
B. Cummin, governor of th Ute of Iowa,
ha demanded of the governor of this state
Thorns DennUon, charged with th crime
of receiving and aiding In the concealing
of atolen property a a fugitive from Jus
tice of said atate of Iowa, and complied
with the requisite In that cas made and
provided.' Does the governor say there
that he considered any evidence upon this
caee? He says he has complied with the
requisites. What requisites are theyT They
are mentioned In tbe statutes of tbe United
States and of this state: First, demand I
made by the governor; second, an Indict
ment Is presented to the governor duly au
thenticated; third, an affidavit of some
person to the effect that he Is a fugitive
from Justice. The governor does not find
any fact In thl connection. H
doe not reclt any fact that he
found. He ' doe not say that he
considered the evidence. All he says Is
that he haa complied with the requisites In
that case made and provided. That Is, he
has filed an indictment, duly suthentlcated,
and has filed an affidavit of somebody that
the defendant is In the state of Nebraska
and that he Is a fugitive from justice.
"So that It does not appear upon this
hearing, beyond the return, that any other
evidence waa before the governor than the
formal evidence necessary to constitute
a legal demand. As I say, th warrant
does not recite that the governor con
sidered that evidence and determined the
question whether or not DennUon wa a
fugitive from Justice. The only thing that
he determined was that the applicant had
compiled with the requisites in that case
made and provided.
Proposition I Prepoeteraa.
"Now, can It be possible can It be pos
sible that a court of justice will say, as a
matter of ' law, that an executive officer
of a tate, acting In an ex parte proceed
ing, upon affidavit and indictment which Is
subject to criticism and comment on ac
count of a number of thing omitted from
it, and does not aay that he considered the
evidence; who doe not say in hla warrant
that he finds any fact to be true, a a
Justification for, hi action In a proceeding
where th defendant 1 not entitled a a
matter ot right, or as a matter of law,
to be beard and produce hla testimony
to assist In the determination of the ques
tion of fact which la Jurisdictional before
the governor can act I say, la It poeaible
that a court of Justice in this century, in
the early part of It. la going to announce
the rule that the finding of an executive
officer in such cases is binding and con
clusive upon a prisoner, and thst on such
a finding, or on such a warrant (In which
the decision is only prima facie evidence
at most, and that only until overcome by
competent proof), la absolutely oonciuslv
upon th right of thl prisoner, or any
other person, ta walk the street of hi
chosen place of residence, whatever hit
business may be, and whatever the char
acter of the defendant may be. In such
manner a be sees fit; and that be shall
be taken away from auch place and trans
ported to som foreign country on auch
testimony a that, without the right to a
judicial hearing upon the queetlon of
whether or not the officer ha acted with
authority T W say such a proceeding
would be monetroua euch a decision would
be monstrous. : It does not make any dif
ference that the plaoe to which' tbe pris
oner 1 now sought to be taken I only
thirty, forty or fifty mile away. Th
principle I th same a though b wa In
dicted In Portland, Me., and requisition
made upon the governor of California to
transport him across the country, or even
a foreign country, upon a prima facie show
ing of that kind.
Term I Relative, ,
"The term prima facie ought not to be a
matter of dispute. It ha a meaning In a
court of law. It ought not to b necessary
to cite authorities or to argu It, for th
purpose of rendering a decision. What Is
meant by prima facte case T It means sim
ply that until overthrown such will be con
eidered to be the facta. It is prima facie
until overthrown, and unless overturned
by the offer of other competent proof, of
course It Is conclusive. It Is prima facie
until competent evidenoe establishes an
other proposition, and It la conclusive if
no such evidenoe la offered, and become
conclusive If no competent evidence la In
troduced to overturn It.
"So, on th whole case, thl motion will
be overruled and the respondent given an
exception. The court announce aa It con
clusion that It will receive evidence upon
the' question of fact as to whether or not
the petitioner In thia caae I a fugitive from
Justice, or was a fugitive from Justice at
th ttm the governor burned hi warrant
The other members of the court may be
Inclined to expreaa their view upon some
Judge Tronp'a Remark. '
At the conclusion of Judge Redtck' de
livery, Judge Troup said:
"Inasmuch aa I concur In the conclusions
that have been announced by Judge 1
Bedlck, it Is probably of hut very little
consequence how I arrived at that con
clusion, but I have been aaked to express
some personal view In respect to th !
question before us, and I will do so a
briefly as possible. .
"I want to say that throughout thl en
tire proceeding I have endeavored to Rave
ever present before me the Importance and
gravity of the question that we are called
upon to decide. Important and grave be
cause It Involves the personal liberty of a
citizen of our state who, It Is asked, shall
be transported to another state, there to
answer for the alleged commission cf a
crime therein. I do not suppose that at
at this day, and In this country at least,
there I anybody who will question the
statement that there can be no matter of
more importance, except life Itself, which
can come before a court or tribunal for
arbitrament, than that which Involves the
personal liberty of a human being. And
I care not, and It matter not, who that
Individual 1. Be he rich or poor, black or
white, high or low. good or bad, ao long
a h Is a human being, be I entitled to
the benefit and protection which a just
and fair administration of the laws of the
land In which be live, afford htm. On
th other hand, however, it seems to me
that It Is fair and right to aay and be
lieve, that In our country, composed a It
I of a union of states, so closely linked
together, that each Individual state Is
scarcely less Interested and concern ed In
the perfect obedience to the laws of every
other state, and that a Just punishment
hall follow an Infraction thereof,
a a th particular atate la which
the Infraction may have occurred. Nor
do I regard the transportation of a cltlsen
from one state to another for the purpose
oc standing trial for ao alleged offense
committed In the latter with that earns
degree of horror which would seem to be
felt by so rue from such a proondur. For
It seems to me that It la very gratifying
to know and believe that thl court, a
well a all ef the oourt In our land, may
tiury and justly tak judicial knowledge
of tbe fact that the law of every etate.
and th firooedure of all our art, wher
ever th' may be, are th product of a
elvlllaed I and enlightened people, and that
their nrfy desire 1 that their laws shall
be Just faithfully hut humanely admin-
Istered, land that a Just punishment shall
follow an Infraction thereof, but that no
where and under no circumstances, sjiall
that punishment be of an exceptionally
cruel or unusual nature. So that It seems
to me that It Is fair to presume that a
Cltlaen taken from one state to another
for the purpoee of being tried for an al
leged offense committed therein, will be
fairly and Justly dealt with, and that
under th law and the courts of that state
to which ho Is taken he will receive all
the consideration and rights that he could
or would be entitled to receive at the
hand of the courts and under the laws
of the state of which be happened to be a
Power af the Governor.
"As I understand It, the eole power the
governor of this state has to extradite on
of Its cltlsena Is derived from the con
stltutlon and laws of the United States.
I. say the sole power, because It Is my
unqualified opinion that anything that our
state Itself haa enacted upon that subject
gives no additional power whatever to the
governor than tht already conferred by
the federal law. That law reposes or en
trusts this power exclusively to the execu
tlve of the state. It might have lodged
that power In other officials. It might have
given It to the judge or to the courts of
tbe states, but it has not seen fit to do. so.
It ha lodged It exclusively In the hands
of the executives of the several state and
It prescribes how and when that power
ahall be exercised. That law provides sub
stantlnlly that when the executive author
ity of any state shall demand a person as
a fugitive from Justice from the executive
authority of any other state to which that
person haa fled,, ar.d hall further produce
to the executive a copy of an Indictment
found, or an affidavit made before a mag
istrate, charging auch person with a crime,
It shall be the duty of that executive of
the state to which such person has fled to
cause the arrest of that person and de
liver him to the agent already appointed
by the demanding state for the purpose of
having him transported to the state from
which he has fled. The act itself does not
prescribe further the character or amount
of testimony, beyond that which I have
mentioned, as to what should be before the
governor before he shall act, but very early
In the history of this law, both the courts
of the states and the federal courts decided
that there ought to be and must be some
testimony of a competent character before
the executive in order to justify him lu Is
suing the executive warrant.
What th Governor May Do.
"Now, when the matters are presented
to him aa prescribed by the statute, the
governor may demand such testimony as
Is satisfactory to him. He may demand
more than the law requires. He should not
and must not, demand lees, but when he
Is satisfied ha should Issue the warrant;
and that warrant In Itself, by all the au
thorities or the land, Is held to be prima
fade evidence of what? Not prima faele
evidence of the truth of the finding of the
governor, but prima facie evidenoe
of the fact that the proceeding
before the governor have been reg
ular, and that the prerequisite of
the ' law have been substantially com.
piled wltt). But the governor may, In in
stances, issue his warrant without having
the proceedings before him regular, or
without having complied with the pre
requisites of the law. And so may the
party arrested come Into the courts of
the Jurisdiction of his arrest and say that
In this Instance such has been done, 'I
claim the governor's warr-nt Is unlawful
I aak to come Into a court of Justice under
the writ of habeas corpus and ask that
thl be Inquired into, that the legality of
my arrest b Investigated.' That In this
Instance ha been done. How far shall that
investigation got The investigation, in my
Judgment, must be made, and when that
Investigation proceeds It Is to determine
whether or not the proceedings before the
governor have been regular, and the pre
requisite of the law have been complied
with; and In the event that It is found
that they have not been, then forthwith
the warrant has failed and the prisoner
must be discharged. If It Is ever renewed,
It must be under tbe institution of new
proceedlnss, and not under the warrant
olready unlawfully Issued. The respondent
cannot. In th case of a habeas corpus,
patch up the case and offer to introduoe
evidence ta supply that which he should
have given to the governor. He must
stand or fall upon the caae which he hlm
olf has made before the chief executive.
On the other hand, If It be determined upon
this Investigation that there was evidence
before the governor; that the proceedings
before Mm were regular; that the pre
requisite ot the law, aa prescribed by the
constltuUon and laws of the United States,
have been compiled with, then, In my
Judgment, the warrant is lawfully Issued
and the prisoner haa been lawfully arrested
and roust be remanded to the arresting
Fail Csnrnetlen ot Miw,
It seem to m that that Is a just a
fair and correct construction and interpre
tation of all of the cases, either state or
federal, up to and even Including the
Hyatt case, decided In 1, by the court
of appeals of New York and later affirmed
by the supreme court of the united mates,
upon this question. If It were otherwise,
what would be the procedure? The door
would be open to Inquire, not whether
these proceedings before the governor had
been regular, but whether or not Independ
ent of that he Is a fugitive from Justice,
and thu hav virtually determined for
hlmelf the defense of alibi which is
proper to b made onty i in iocai upon
the merit of the case. That involves In
many Instances, and probably In thia, an
examination of aeorea of witnesses; It In
volves the transportation of all the wit
nesses that are Informed upon the question
from the foreign state, a procedure, It
seems to me, entirely without the design
contemplation and purpose of the extradi
tion proceeding. And It eeems to tne that
such a course would be entirely subversive
of the extradition proceedings a they
have been exercised and acquiesced In by
the people and the court of thl country
for mora than a hundred years. '
Right ot th Individual.
"I do pot mean to overlook the fact that
the queetlon as raised here, whether or not
the defendant under auch circumstances
as these, haa bad due process of law. I
should want to be th lsst person, feeling
I do npon that question, by anything
that I should do or say, to undervalue that
right which every man ha to appear and
be heard In bl own defense. But It eeems
to m that when a law baa been prescribed
for oertaln procedure, a ha th extradi
tion law, by th congress of th United
State, applicable alike to all persona, and
to whloh all person are amenable. It seems
to me that when the defendant In such a
ease baa th right to make hi application,
and la permitted to eorae Into a court of
justice and Inquire whether or not tbe
law which apprehends him ha been com
piled with, la all of It particulars, that
he I not In a position to say that h ha
not; had do procee of law. It would seem
t m to go further than that In a matter
like thia, would be much th m a
would b an individual who waa arrested
here ta ur own community to ay that
h had wt had du prooeea of law, be
rsuse he had not had the light te defend
hlmaelf ktor h bad bad hi preliminary
examination, la other word, that he bad
not had due proo of law becau he waa
not adv4 in advance that b waa to be
airat4; that pa bad not had due arevea j
ef law because b had.
t defend hlmaelf against tb
arrest before he had been lodgo,
rnunlf 1 n ( I V.
neelilea at th t'anrt.
"This, w must recollect I not the occa
sion of inquiring into Ui guilt or Innocenc
of the defendant but purely whether or
not he shall be arprehended for the pur
pose of having hla preliminary examina
tion, and all the difference In the caae I
have cited and tho cae at bar 1 th
difference of the place where tho examlna
llon shall be held. And so thoroughly con
vinced waa I of the soundness of my Judg
ment In this matter, and th correct Inter
pretation of the authorities upon th ques
tion, that I waa almost Inclined to disre
gard the case of State against Clough so
recently decided by the supreme court of
New Hampshire, a very strong case op
posing the view that I have expressed;
aa a case excoptlonal In It nature,
and so far beyond that which the
cases before It had gone that I
thought It should not stand aa au
thority against the many before It But
when I am presented, sa I am, by tbe caae
of Bruce against Itayoer, a strong opinion
by th Fourth circuit oourt of appeals,
a court next to the highest tribunal In our
land, I sm bound, a I do, to yield my
humble end Insignificant Judgment to the
opinion of that eminent court And it
seems to mo that no person who can read
that opinion can come to a conclusion other
than to aay that the defendant In this oas
has a right lrrcapecUv and Independent
of what the governor may have found, to
Inquire anew Into the question cf fact of
Whether or not he 1 a fugitive from Jus
tice. I regard that opinion aa one that
has virtually placed a construction or an
Interpretation upon all of the decision
upon this question that have gone before
It, and It unquestionably decides and give
this court the authority for announcing the
rule that a defendant under such circum
stances as the case at bar haa the right In
a writ of habeas oorpus to Inquire Into
and determine whether or not In fact he
Is a fugitive from Justine. .
"So that I conclude that my theory and
my opinion have been wrong, that I have
placed a wrong construction upon tho opin
ions, either state or federal, that have
preceded thl caae, and that the opinion
ot the circuit court ot appeal, only on
door removed from the auprems oourt of
the United State, plaoe upon It the right
construction, and I o hold and decide."
Jndsr Day's Position.
Following th remarks made by Judge
Troup, Judge Day spoke aa follows:
'I did not Intend to announce my per
sonal views-In respect to the case now
being conaldered by the oourt, but Judge
lied Irk ha announced that we were not
all agreed upon the method and reasons
by which we arrived at the conclusions
which we all agree upon. Since the two
Judge have announced their opinions and
stated their reasons, I deem It I if justice
to myself and perhaps to th attorney who
are Interested In the case, to tate In a very
brief manner the manner In which I have
reached the conclusion which we all hav
agreed upon.
"It was argued before u that the two
section of the statute of our own state
with reference to this subject give the gov
ernor the power to Issue an order of ex
tradition upon evidence such a might seem
proper to him; that the provision of the
constitution of the United State that
whenever a person Is charged in any state
with treason, folony or other crime, who
shall flee from the justice and be found
In another etate, shall on demand of the
executive of the state from which he fled,
be delivered or be removed to the atate
having jurisdiction of the crime, waa a
matter which affected the right of the
state to the individual, and did not con
fer upon the Individual hlmaelf any rights;
that bis rights must be determined by
the statutes of the state, but that the
state under thl constitutional- provision
oould not decline to deliver him up when
the fact shown came clearly within this
provision of the constitution of tbe United
States, and whloh I have Just quoted.
Right of the Indlvtdaal.
"Upon an examination of th author
ities (I might say that we spent all day
yesterday In examining them) the founda
tion of practically all of the. oaaea la
based upon this Identical provision of the
constitution, and my construction of the
opinion which have been determined 1
this: That thl constitutional provision
confers upon the Individual the right which
he has the light to demand that It be
c'early compiled with in his favor before
he can be extradited from the state, and
that If the governor, In the exercise of tha
power vested In him by hls provision of
the statute and the acts of congress should
see fit to determine that he should be
extradited, and the fact was not estab
lished that be was a fugitive from the
Justice ef the atate, that he could apply to
the courts fo tho purpose of having
that fact determined aa to whether or not
he had been, or whether the facts showed
that he had come clearly within the pro
vision of that article of the constitution.
'Another fact whioh I have laid a great
deal of stress upon, and that Is this: It I
conceded that a hearing before the gov
ernor on these formal applications to'hlm
are purely ex pnrte matters. In other
words, it is not necessary under tbe law
that he give notice cf a t hearing before
Mm, and the reason for the failure of no
tice Is apparent to every on. If he should
give notice to a person charged with an
offense that a hearing wa to be had be
fore Mm on an application for extradition
a to whether or not such person should
be extradited, bofore he was arres.ed, It la
l.luln to all that the person who was
sought to be npprehended, If ho saw fit
to do so, could fie and conceal hlmaelf.
o that the very purpose of the extradition
might be defeated, So, I say, II Is con
ceded that tl.ose application are purely
ot an x part character. The governor
may, If In hi discretion he thinks it
proper, serve r.otlue upon the pnrty, and
permit him. If h ees fit to do so, to ap
pear before him. But it Is not a matter
of right which the (.tcusod can demand,
neither I It compulsory upon the governor
that tbe opportunity to upixar before til m (
be given, but hi the exercise of his wis
discretion he can give permission to th
accused to be present and be heard. Ua
that it becomes apparent ihat a man may
be arrested end depilVed of. hi liberty
without any opportunity to present hi
Arensed May Always Be Heard.
"There is another provision of the con
stitution which reeins to hav a vry Im
portant bearing right here, and that 1
that no man shall be deprived of hi life,
liberty .or property without due process of
of law, and the court are practically unaii-
Uiiou in th determination ot what W
meant by due proc-AA of law. It 1 a man's
right to b heard tu bl own behalf. A
person Is arrested upon th warrant of
governor without any opportunity or
right to be heard. Tou have deprived blm
of his liberty without due prooea of law.
It seem to me that when we bear lu
mind these two provision of th consti
tution of th United State, which in oy
judgment are paaeed for the protnotion of
the Individual, that you could not slat
the finding of governor could not be re
viewed by a court, and X have concurred
pa the conclusion which our brother hav
both announced, that wher a ponton ha
been apprehended, that he may rain the
question ot fact a to whether -or not U ,
b a fugitive from Juatloe. Th governor.
In paaaiiig upon the question ot aruatbar
(Continued cm P itovratawa.)
' t . . ... .