In re Mahon , 34 F. 525 ( 1888 )

BabR, J.,

(orally, after stating the facts as above.) The question presented to the court under this writ of habeas carpus is much narrower than the discussion of counsel would indicate. It is now settled that the courts of the United States recognize the treaty obligation between the United States and other nations in regard to the extradition of fugitives from justice. In a recent case, the supreme court recognized the provisions in regard to extradition, in the treaty known as the “Ash-burton Treaty” between the United States and Great Britain, and decided that a person extradited under that treaty could only be tried for the crime for which be had been extradited. This was not because of the comity which should exist as between nations, nor because the law of nations would have been violated, but because of the terms of the treaty, and the act of congress made to carry out treaty obligations in the matter of extradition of fugitives from justice. U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234. It is also settled that there is not a personal right of asylum in a refugee, who has fled from this country, being charged with crime, to a foreign country. Thus, if there be no treaty authorizing extradition, or if the fugitive from justice is not brought back from a foreign country under and according to the provisions of the treaty, if there be one, then the courts will not allow the fugitive to plead the mode oí his capture and return to this country as an answer to his crime or in abatement to the indictment against him. Ker V. Illinois, 119 U. S. 437; 7 Sup. Ct. Rep. 225; 110 Ill. 630; State v. Brewster, 7 Vt. 118.

As lo a person charged with crime in one of the states of this Union, and who has fled to another state, there is some difference in the reasoning of the courts; but I think all of the American authorities concur in the conclusion, that the refugee, under such circumstances, has not a personal right of asylum in the state to which he has ñed. They agree that the refugee, when returned to the state wherein he committed the crime, by whatever means he may have been returned, cannot plead as an answer to his crime the manner of his return, and that he had not been extradited according to and under the law. State v. Smith, 1 Bailey, 283; State v. Ross, 21 Iowa, 467; In re Noyes, 17 Alb. Law J. 407; Dows’ Case, 18 Pa. St. 37. In Dows’ Case, a great jurist, Chief Justice GibsoN, made an important statement, though it was not necessary in the discussion of the case, and" that was, that although a refugee from justice, who is brought to the state where he is charged to have committed the crime, from the state to which he had ñed, has not of himself the right of asylum, if the chief executive of the state from which he has been brought by unlawful means demands his return, he should be discharged under a writ of habeas corpus. This is because of the sovereignty which still exists in the states of this Union, and the comity which should exist between them. This court cannot, however, consider what is or should be the law of comity between the states of this Union, because, by the express language of the act under -which this habeas corpus was issued, this court is confined to the inquiry whether the petitioner is detained in custody by the jailer of Pike county in violation of the constitution or laws of the United States; nor can this court consider any controversy, if there be one, between the state of West Virginia and the state of Kentucky. All such controversies are within the exclusive jurisdiction of the supreme court.

The right to extradite a refugee, who is charged with crime in one state and has fled to another state of this Union, is governed by the second section, art. 4, Const., which provides:

“A person charged in any state with treason, felony, or other cfimes, who who'shall flee from justice, and be found in another state shall, on demand of the executive authority of the state from which he has fled, be delivered up to be removed to the state having jurisdiction of the crime. ”

Congress has enacted laws to carry out this provision of the constitution-, and it is settled that both state and federal courts may, under a writ of habeas corpus, revise the action of the governor of a state upon whom a requisition is made if he acts, and has the refugee arrested, ,to see that the constitution and the act of congress have been complied with. The courts, however, cannot, by any process known to the law, compel a governor upon such a requisition, to act and have the refugee arrested and delivered over. Kentucky v. Dennison, 24 How. 66. It is claimed that the petitioner is detained in violation of the constitution of ihe-United States, and this court should discharge him. And it is argued that the only process by which he could have been extradited was the process provided by the constitution of the,United States, and the laws made thereunder, and that in this case this-process has been invoked in so- fai’ ;as to give this court jurisdiction to revise the action taken under it." It is quite clear,-as will be seen from the statement of facts already -read,: that there Was no. action taken by the authorities of West Virginia under the requisition made by the governor of Kentucky. Phillips, though designated by the governor of Kentucky as the agent to receive from the proper authority of West Virginia the petitioner and others, and bring them to Kentucky, never in fact acted as the agent- of the state of Kentucky. It is true, he represented himself to the petitioner as having authority from the governor of West Virginia to arrest him, and as being the agent of the state of Kentucky, but that was false. The governor of West Virginia never issued a warrant for tho arrest of petitioner, nor had Phillips any authority to do so, either from the governor of West Virginia or the governor of Kentucky, or any one else. The process by which a lawful extradition coúld be made was never used; nor did Phillips act under color of authority, and hence this court cannot revise his action as being an effort to act under tho provisions of the constitution and laws of the United States.

This brings us to consider the other proposition, which is that since the adoption of the fourteenth amendment to tho constitution of the United States neither a resident or citizen of one state having been charged with crime in another state, and having fled therefrom, can be extradited from that state, except by the due process of law which is provided in lire federal constitution; and the laws made thereunder, and unless he is thus extradited, he is within the protection of that amendment. It is true, I think, that the only legal mode of arresting a refugee from justice under such circumstances is under and according to the constitution of the United States, and the laws made thereunder, and such state laws as may he constitutionally made in aid thereof. This being true, it may bo insisted that due process of law, as required by that amendment, when a refugee from justice has fled from the state where he is charged with crime to another state, is — First, the mode of extradition as provided by the federal constitution, and the laws thereunder; second, after he is returned éo the state from which he has fled, his arrest under and in accordance with the regular and lawful process of that state. Hence, as he was not extradited according to or under the process provided by tho constitution and laws, but by force and against his will, he is now deprived of bis liberty by the slate of Kentucky without duo process of law within tho meaning of this amendment. That amendment declares, among other declarations that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law.” It will be observed that this is not a grant to the citizen resident, or sojourner, as an individual, of any right which he did' not theretofore have, but it is a limitation upon the power of the states, put in the federal constitution. It is not a declaration of what privileges or immunities citizens of the United States are entitled to, but is a declaration that no state of the Union shall abridge them. The previous part of the section which declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,” created a national citizenship, but does not declare or define the privileges, rights, or immunities of a citizen of the United States. These rights, privileges, and immunities are assumed to exist from the relation of national citizenship, and have not yet been clearly defined by the courts, but whatever they may be, and however they may be extended to rights and privileges which are national in their nature, and beyond what theretofore existed from the relation of state citizenship, I think national citizenship would not confer upon a refugee who has fled from a state in which he is charged with crime to another state, the right of asylum in said state. We have seen that no such individual right of asylum exists because of state citizenship, and if it existed at all, it would be because of the sovereignty which still remains in the states. There is no reason why a national citizenship should confer the right of asylum which could arise and exist in a state of this Union only because of a reserved sovereignty in the state. It is true that a citizen of a state and of the United States both before and since the adoption of the fourteenth amendment to the constitution is entitled to be extradited under and according to the constitution and laws of the United States, and that he was and is entitled to a writ of habeas corpus, and to his release, when deprived of his liberty by force, and not in accordance with the provisions of the laws regulating extradition. Before the adoption of this amendment and the act of 1867, the state courts alone could issue a writ of habeas corpus in favor of one seized by force, and without any process of law. But since that time the federal courts as well as the state courts would perhaps have jurisdiction in such cases because of the second section of article 4 of the constitution, and laws made thereunder, and the national citizenship of the person forcibly seized and held in custody. The writ of habeas corpus, whether issued from a state or federal court would have no extraterritorial force, and neither court could discharge a person, although originally unlawfully seized, who had been legally arrested, and was then held by due process of law, unless a state court should, as Chief Justice GibsoN indicates, release as a matter of comity between the states, the fugitive from justice upon the demand of the governor of the state from which he had been kidnapped. We therefore conclude that Kentucky has not abridged the privileges and immunities of the petitioner as a citizen of the United States by arresting him under a bench-warrant, after he was within the state.

The next inquiry is, has the state of Kentucky deprived him of his liberty without due process of law, within the meaning of this amendment. The petitioner had been indicted by a grand jury for willful murder, and was arrested in this state under and by the usual and regular process which has existed in this state from time immemorial for the arrest of persons indicted for crime by a grand jury. He is held by due process of law, if the inhibition of the fourteenth amendment is to be limited to the process of the state which deprives him of his liberty. If, however, the phrase “due process of law,” is to include the means by which others brought him into this state, then it is not due process of law. Clearly, the prohibition is upon “any state,” and we think the “ due process of law” which is required to be used by the state is its own process, and not the process of another state or the process of the United States. The supreme court has declined to define or attempt to define the meaning of “duo process of law,” and has wisely left its meaning to lie ascertained by a “gradual process of judicial inclusion and exclusion.” This case does not, however, require that we shall attempt to define it, because there can be no doubt the Kentucky process by which the petitioner was arrested after he was brought into the state, was “due process of law,” so far as the process of that state is concerned. If, therefore we are correct in construing this part of the fourteenth amendment as meaning that the prohibition is confined to “a state,” and that the “due process of larv,” which is required to be used before any person can be deprived of his life, liberty, or property by a state, is the due process of that state, then the petitioner’s arrest and detention in the jail of Pike county is not a violation of this provision of the fourteenth amendment of the constitution of the United States. The fifth amendment to the constitution of the United States declared that “no person shall be * * * deprived of life, liberty, or property without due process of law'.” The uniform construction of this amendment is that the United States shall not deprive any person of life, liberty, or property without due process of law, and that the process which is meant is a federal process. Indeed, the form and character of the government precludes any other construction. When this question was first presented, 1 was inclined to the opinion that “due process of law” in the meaning of the fourteenth amendment required the petitioner’s extradition from West Virginia by a legal process, as well as his legal arrest after he was in Kentucky; but a more critical examination has satisfied me that this amendment has not been violated by the state of Kentucky in thus arresting and detaining the petitioner in the jail of Pike county. The petitioner must therefore be remanded to the custody of the jailer of Pike county, and it will be so ordered.