Petitioner claims his discharge upon the ground that he is accused of having illegally received a deposit in his bank at Juneau, when in fact he had not been in Juneau within three weeks before the deposit was received, and that, at the time it was received, which was about 4 o'clock in the afternoon of June 20, 1890, he was in Illinois, and had been in that State for more than two hours before the deposit was received. He had in fact left Beaver Dam, Wisconsin, at an early hour that day, and travelled continuously to Chicago, not stopping at Juneau, and having no actual knowledge of the illegal deposit charged. Upon this state of facts petitioner insists that his journey from Wisconsin to Illinois was not a "fleeing from justice" within the meaning of Article 4, section 2, of the Constitution; that it is essential to the jurisdiction of the trial court that he should have been a fugitive from justice; and hence that the Circuit Court of Dodge County was without authority to try him for the offence charged, and he should,
We regard this case as controlled in all its essential features by those of Ker v. Illinois, 119 U.S. 436, and Mahon v. Justice, 127 U.S. 700. The former case arose upon a writ of error to the Supreme Court of Illinois. The petitioner had pleaded, in abatement to an indictment for larceny in the criminal court of Cook County, that he had been kidnapped from the city of Lima, in Peru, forcibly placed on board a vessel of the United States in the harbor of Callao, carried to San Francisco, and sent from there to Illinois upon a requisition made upon the Governor of California. After disposing of the point that he had not been deprived of his liberty without "due process of law," the court intimated, in reply to an objection that the petitioner was not a fugitive from justice in the State of California, that "when the governor of one State voluntarily surrenders a fugitive from the justice of another State to answer for his alleged offences, it is hardly a proper subject of inquiry on the trial of the case to examine into the details of the proceedings by which the demand was made by the one State and the manner in which it was responded to by the other." p. 441. The court further held that the petitioner had not acquired by his residence in Peru a right of asylum there, a right to be free from molestation for the crime committed in Illinois, or a right that he should only be removed thereto in accordance with the provisions of the treaty of extradition; and winds up the opinion by observing that "the question of how far his forcible seizure in another country, and transfer by violence, force or fraud to this country, could be made available to resist trial in the State court, for the offence now charged upon him, is one which we do not feel called upon to decide, for in that transaction we do not see that the Constitution, or laws or treaties of the United States guarantee him any protection. There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence... .
The case of Mahon v. Justice, 127 U.S. 700, arose upon an application of the Governor of West Virginia to the District Court of the United States for the District of Kentucky, for the release of Mahon upon a writ of habeas corpus, upon the ground that he had been, while residing in West Virginia, and in violation of her laws, without warrant or other legal process, arrested by a body of armed men from Kentucky, and, by force and against his will, carried out of the State to answer to a charge of murder in the State of Kentucky. As stated in the opinion of the court, the governor "proceeded upon the theory that it was the duty of the United States to secure the inviolability of the territory of the State from the lawless invasion of persons from other States, and when parties had been forcibly taken from her territory and jurisdiction to afford the means of compelling their return." p. 704. This court held that, while the accused had the right while in West Virginia of insisting that he should not be surrendered to the Governor of Kentucky, except in pursuance of the acts of Congress, and was entitled to release from any arrest in that State not made in accordance with them, yet that as he had been subsequently arrested in Kentucky under the writs issued under the indictments against him, the question was not as to the validity of the arrest in West Virginia, but as to the legality of his detention in Kentucky. "The only question, therefore," said the court, "presented for our determination is whether a person indicted for a felony in one State, forcibly abducted from another State and brought to the State where he was indicted by parties acting without warrant or authority of law, is entitled under the Constitution or laws of the United States to release from detention under the indictment by reason of such forcible and unlawful abduction." p. 706. After a full review of all the prior authorities upon the point, the court came to the conclusion that the
There was a vacancy in the office of Chief Justice at the time, and two members of the court (Mr. Justice Bradley and Mr. Justice Harlan) dissented upon the ground that the Constitution had provided a peaceful remedy for the surrender of persons charged with crime; that this clearly implied that there should be no resort to force for this purpose; that the cases upon which the court relied had arisen where a criminal had been seized in one country and forcibly taken to another for trial, in the absence of any international treaty of extradition; and that as the application in that case was made by the governor of the State whose territory had been lawlessly invaded, he was entitled to a redelivery of the person charged.
These cases may be considered as establishing two propositions: 1. That this court will not interfere to relieve persons who have been arrested and taken by violence from the territory of one State to that of another, where they are held under process legally issued from the courts of the latter State. 2. That the question of the applicability of this doctrine to a particular case is as much within the province of a State court, as a question of common law or of the law of nations, as it is of the courts of the United States.
An attempt is made to distinguish the case under consideration from the two above cited, in the fact that those were cases of kidnapping by third parties, by means of which the accused were brought within the jurisdiction of the trial State,
It is proper to observe in this connection that, assuming the question of flight to be jurisdictional, if that question be raised before the executive or the courts of the surrendering State, it is presented in a somewhat different aspect after the accused
As the defence in this case is claimed to be jurisdictional, and, in any aspect, is equally available in the State as in the Federal courts, we do not feel called upon at this time to consider it or to review the propriety of the decision of the court below. We adhere to the views expressed in Ex parte Royall, 117 U.S. 241, and Ex parte Fonda, 117 U.S. 516, that, where a person is in custody under process from a state court of original jurisdiction for an alleged offence against the laws of that State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the Circuit Court of the United States has a discretion whether it will discharge him in advance of his trial in the court in which he is indicted, although this discretion will be subordinated to any special circumstances requiring immediate action. While the Federal courts have the power and may discharge the accused in advance
The judgment of the court below refusing the discharge, is therefore,