IN THE MATTER OF JAMES ROMAINE et al., 23 Cal. 585

The application for discharge was heard before Justice Crocker,, by whom the opinion was delivered. The parties in this case were arrested and held in custody under a warrant issued by the Governor of this State, upon a requisition made by the acting Governor of Idaho Territory, alleging that they were charged with the crime of murder and highway robbery, committed in Idaho Territory, and that they fled from that Territory to this State. They have obtained a writ of habeas corpus to determine the validity of their arrest and imprisonment.

The first question raised by the counsel for the applicants is, that Congress had no power to pass the act relating to the rendition of fugitives from justice; and if they have, it is confined, under the provision in the National Constitution, to fugitives escaping from one “ State ” to another “ State,” and does not extend to fugitives fleeing from a “ Territory.” The clause of the National Constitution thus brought in question is as follows: “ 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 haóeg^j»i$sdiction of the crime.” It will be noticed that Congr^Wp^f^feWd to in this clause, nor is any power over the mat^,¿qnferrecGppm,)tiiat body.

In the same

article in which it is fcmd^é'everaj'iiiiportenfeubjeets are treated of, over some of which Jpoiler i^ conferr^’umn Congress, and in others not. Thus in regá^t^the mifeái a<^#frecords, and judicial proceedings of the States, ti^e ad^ri^on offfiew States, the disposal of the territory and other propfc^voftijiPunited States, and the guaranty of a republican form of government to each State, full power over these subjects is directly conferred upon Congress; but as to all other matters in that article, including the clause in question, no power is conferred upon Congress.

They stand as solemn compacts between the States, to be enforced by State legislation, or by judicial action. They are, to a great extent, a recognition of rights founded upon principles of international law, but which were, under that law, often deemed more a matter of comity, than of absolute right, except the provision respecting the rights of citizenship, which go beyond any rule of international law.

Upon this very subject of the surrender of fugitives from justice fleeing from one State or nation to another, under the rules of international law, it has been a question very fully and ably discussed by public writers, whether such surrender was a matter of right and duty, or merely of comity. (Story on Conflict of Laws, Secs. 626-628.) This was deemed too important a question to leave unsettled, and the framers of our National Constitution wisely inserted the clause referred to, making it no longer a matter of mere comity, subject to the pleasure of each State, but an absolute right and duty.

This provision being a part of the supreme law of the land, it is a part of the law of each State, and State officers whose duty it is to adjudicate or execute the laws, are governed by it the same as by every other law in force. A Court of general original jurisdiction, exercising the usual powers of a Common Law Court, is fully competent to hear and determine all matters, and to issue all necessary writs for the arrest and transfer of the fugitive criminal to the authorized agent of the State from whence he fled.

Where a right is established by law, such Courts can apply the appropriate remedy and issue the necessary writs without special legislation. It may be considered doubtful whether the transfer of this power from the Courts to the Governor of the State is

an act of wisdom. Certainly Courts of Justice are more competent to adjudicate the difficult and perplexing questions which often arise in such cases, than the Governor. The great object of the National Constitution was to create a national government, with adequate powers; and a secondary object was, by articles of solemn compact, to settle certain matters of right and duty between the States and between the citizens of the different States. In pursuance of its first and great purpose, it establishes a government, defines its sphere, prescribes its duties, and confers upon it certain powers.

And in carrying out its secondary purpose, it contains certain articles of agreement between the States. These different ends of the Constitution are entirely distinct in their nature, and if all the articles of compact were stricken out, the government created by it would still exist. The clauses of compact confer no power upon the government, and the powers of the government cannot be exerted except by virtue of express provisions to enforce these matters of compact.

The clause in question is purely a matter of compact or agreement between the States, and it confers no powers upon Congress over its subject matter. The great object of rules of construction is to ascertain the intention of the parties making the instrument. The simple fact that while in several clauses in the same

article power over the matters therein are directly, and in express terms, conferred upon Congress, while in the clause under consideration, such power is carefully withheld and omitted, would seem to be conclusive as to the intention of those who adopted the Constitution.

If this was a new question, free from the political excitements which have grown out of the discussion of the subject of slavery, and the enforcement of the succeeding clause relating to fugitives from service, few would have disputed that this clause confers no power upon Congress over the subject, and that all Congressional legislation founded thereon is void. In the view I have taken of this case, it is not necessary to determine this question.

The clause, by its terms, applies only to criminals fleeing from one “ State ” to another “ State,” and does not in express terms apply to those fleeing from a Territory to a State, which is the case now under consideration. This case is not directly provided for by the National Constitution, and we are therefore compelled to look elsewhere for the power to return the parties before us.

The State has passed a law upon this subject which' is in the following terms : “A person charged in any State or Territory of the United States with treason, felony, or other crime, who shall flee from justice, and be found in the State, shall, on demand of the executive authority of the State or Territory from which he fled, be delivered up by the Governor of this State, to be removed to the State having jurisdiction of the crime.” Succeeding sections provide for the arrest and detention of the fugitive until he can be arrested under the warrant of the Governor. Under this

section the Governor had a right to issue a warrant for the arrest of the parties in this case, and their surrender to the agent appointed by the acting Governor of Idaho Territory, and their removal from the State, upon a proper application being made to him therefor.

The power to issue the warrant depends upon the following facts: 1st, that the persons are charged in some State or Territory of the United States with treason, felony, or-other crime; 2d, that they have fled from justice; 3d, that they are found in this State; and 4th, that the executive authority of the Territory from which they fled, had demanded their delivery, to be removed to the Territory having jurisdiction of the crime.

Properly, these facts should be clearly stated in the warrant issued by the Governor, to show that it is issued in a case authorized by law. ' The warrant issued for the arrest and removal of these parties is defective in this respect, as it merely states that they are “ charged with the crime of murder and highway robbery in the Territory of Idaho,” and that a demand or requisition has been made upon the Governor of this State for their arrest and delivery, by the acting Governor of the Territory; but it omits to state that they have fled from justice or that they are found in this State.

The return to the writ of habeas corpus of the officer who has them in custody sets forth, however, certified copies of the original affidavit, add the requisition of the acting Governor of Idaho Territory issued thereon, and upon which the warrant of the Governor of this State was issued. These papers supply these facts omitted in the warrant, and substantially show that the warrant was issued in a case within the provisions of the law of this State. The applicants for the writ have not attempted to controvert any of these facts, or to show any valid reason why the warrant should not be enforced against them.

For these reasons, their application to be discharged is denied, and they are ordered to be remanded to the custody of the officer having them in charge, to be removed from the State, in accordance with the warrant of the Governor.