It has also been decided that the Federal courts have jurisdiction to prevent a State court from proceeding with the trial of an extradited prisoner for an offence for which he was not extradited."

quired according to the exigency | ing; on habeas and certiorari the of the bond, which the facts stated District Court of the United States show that it was not, it follows released him and allowed him a that when he actually did come reasonable time to return to New back to Michigan he had lost his Jersey, the State whence he was exemption. brought by the United States marshal. In re Reinitz, 39 Fed. Rep. 204, distinguished; United States vs. Rauscher, 109 U. S. 407, followed.

"But we cannot concur in this view. The treaty and statute secured to Cosgrove a reasonable time to return to the country from which he was surrendered, after his discharge from custody or imprisonment for or on account of the offence for which he had been extradited, and at the time of this arrest he had not been so discharged by reason of acquittal; or conviction and compliance with sentence; or the termination of the state prosecution in any way. United States v. Rauscher, 119 U. S. 407, 433.

Hall vs. Patterson, U. S. Cir. Ct. N. J. 1891, 45 Fed. Rep. 352, GREEN, J. Following U. S. vs. Rauscher, held that an extradited offendant can only be charged in the proceeding in which he was extradited.

People ex rel. Young vs. Stout, N. Y. Sup. Ct. 1894, 81 Hun, 336, BRADLEY, J. A prisoner indicted for two different degrees of assault, one of which was extraditable and the other not, having been extradited and tried and found guilty of the second degree, cannot be held.

"The mere fact that he went to Canada did not in itself put an end to the prosecution or to the custody in which he was held by his bail, In re Reinitz, U. S. Cir. Ct. S. D. or even authorize the bail to be N. Y. 1889, 39 Fed. Rep. 204, forfeited, and when he re-entered BROWN, J. A person extradited, Michigan he was as much subject | tried and acquitted and rearrested to the compulsion of his sureties immediately on another offense. as if he had not been absent."

In re Baruch, U. S. Cir. Ct. S. D. N. Y. 1890, 41 Fed. Rep. 472, BROWN, J. Held that a prisoner discharged on habeas corpus from arrest under extradition proceedings under treaty with Austria, and who has been brought into the State of New York on the petition of the Austro-Hungarian Consul, cannot be arrested in a civil suit in a New York State court for embezzlement of the same funds involved in the extradition proceed

Held that he could not be arrested for another offense except that for which he was extradited until after a reasonable time had been given him after the acquittal to enable him to return to the country from which he was brought. Right of asylum, numerous cases cited.

In re Mineau, U. S. C. C. Vt. 1891, 45 Fed. Rep. 188, WHEELER, J. Proceedings against man in jail for other offense.

On the other hand, the Supreme Court has held that when a person, charged with crime, has been brought within the jurisdiction of a State from a foreign country in treaty relations with the United States by means other than the surrender by the government of that country on requisition of the United States, made pursuant to treaty stipulations, the United States will not interfere with the trial in the State courts, notwithstanding such proceedings would be irregular

8 Ker vs. State Illinois, U. S. Sup. Ct. 1886, 119 U. S. 436, MILLER, J. The plaintiff in this case is the same as the petitioner in habeas proceedings in the Circuit Court of the United States for the Northern District of Illinois, In re Kerr, 18 Federal Reporter, 167.

After his discharge had been refused by the Judge of the Circuit Court he was tried and convicted and sued out a writ of error from the Supreme Court basing the writ upon the effect of the question involved in the right of a State court to try a prisoner brought from Peru but not in accordance with the extradition treaty.

On the criminal trial the prisoner had set up that he had been improperly extradited as a plea in abatement which, on a demurrer had been overruled.

The plaintiff in error contended that the removal from Peru was practically unlawful and unauthorized and therefore in direct violation of the extradition treaty.

The court held that it was not an effective question to determine that point, as the State court had exclusive jurisdiction in regard thereto, because if not extradited under the treaty, jurisdiction was not conferred upon the United States Courts.

In this respect the court says (pages 441-444):

"This view of the subject is presented in various forms and repeated in various shapes, in the argument of counsel. The fact that this question was raised in the Supreme Court of Illinois may be said to confer jurisdiction on this court, because, in making this claim, the defendant asserted a right under a treaty of the United States, and, whether the assertion was well founded or not, this court has jurisdiction to decide it; and we proceed to inquire into it.

"There is no language in this treaty, or in any other treaty made by this country on the subject of extradition, of which we are aware, which says in terms that a party fleeing from the United States to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled; indeed, the absurdity of such a proposition would at once prevent the making of a treaty of that kind. It will not be for a moment contended that the government of Peru could not have ordered Ker out of the country on his arrival, or at any period of his residence there. If this could be done, what becomes of his right of asylum?

Nor can it be doubted that the government of Peru could of its own accord, without any demand from the United States have surrendered

if the fugitive had been surrendered on a requisition. In the case referred to in the notes to this section the Federal courts held that they had no jurisdiction because the prisoner had not been brought from Peru under extradition proceedings.

Ker to an agent of the State of Illinois, and that such surrender would have been valid within the dominions of Peru. It is idle, therefore, to claim that, either by express terms or by implication, there is given to a fugitive from justice in one of these countries any right to remain and reside in the other; and if the right of asylum means anything, it must mean this. The right of the government of Peru voluntarily to give a party in Ker's condition an asylum in that country, is quite a different thing from the right in him to demand and insist upon security in such an asylum. The treaty, so far as it regulates the right of asylum at all, is intended to limit this right in the case of one who is proved to be a criminal fleeing from justice, so that, on proper demand and proceedings had therein, the government of the country of the asylum shall deliver him up to the country where the crime was committed. And to this extent, and to this alone, the treaty does regulate or impose a restriction upon the right of the government of the country of the asylum to protect the criminal from removal therefrom. "In the case before us, the plea shows, that, although Julian went to Peru with the necessary papers to procure the extradition of Ker under the treaty, those papers remained in his pocket and were never brought to light in Peru; that no steps were taken under them; and that Julian, in seizing upon the person of Ker and carrying him out of the territory of Peru into the United States, did not act nor profess to act under the treaty. In fact, that treaty was not called into operation, was not relied upon, was not made the pretext of arrest, and the facts show that it was a clear case of kidnapping within the dominions of Peru, without any pretence of authority under the treaty or from the government of the United States.

"In the case of United States vs. Rauscher, just cited, ante, [119 U. S.] 407, and considered with this, the effect of extradition proceedings under a treaty was very fully considered, and it was there held, that, when a party was duly surrendered, by proper proceedings, under the treaty of 1842 with Great Britain, he came to this country clothed with the protection which the nature of such proceedings and the true construction of the treaty gave him. One of the rights with which he was thus clothed, both in regard to himself and in good faith to the country which had sent him here, was, that he should be tried for no other offence than the one for which he was delivered under the extradition proceedings. If Ker had been brought to this country by proceedings under the treaty of 1870-74 with Peru, it seems probable, from the statement of the case in the record, that he might have successfully pleaded that he was extradited for larceny, and convicted by the verdict of a jury of embezzlement; for the statement in the plea is, that the demand made by the President of the United States, if it had been put in operation, was for an extra

Extradition papers had indeed been prepared but the prisoner was seized and, as he claimed kidnapped, by the detectives who brought him to Illinois, without any presenta

dition for larceny, although some forms of embezzlement are mentioned in the treaty as subjects of extradition. But it is quite a different case when the plaintiff in error comes to this country in the manner in which he was brought here, clothed with no rights which a proceeding under the treaty could have given him, and no duty which this country owes to Peru or to him under the treaty.

"We think it very clear, therefore, that, in invoking the jurisdiction of this court upon the ground that the prisoner was denied a right conferred upon him by a treaty of the United States, he has failed to establish the existence of any such right.

"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, and presents no valid objection to his trial in such court. Among the authorities which support the proposition are the following: Ex parte Scott, 9 B. & C. 446 (1829); Lopez & Sattler's Case, 1 Dearsly & Bell's Crown Cases, 525; State vs. Smith, 1 Bailey So. Car. Law, 283 (1829); s. c. 19 Am. Dec. 679; State vs. Brewster, 7 Vt. 118 (1835); Dow's Case, 18 Penn. St. 37 (1851); State vs. Ross and Mann, 21 Iowa, 467 (1866); Ship Richmond vs. United States (The Richmond), 9 Cranch 102.

"However this may be, the decision of that question is as much within the province of the state court, as a question of common law, or of the law of nations, of which that court is bound to take notice, as it is of the courts of the United States. And though we might or might not differ with the Illinois court on that subject, it is one in which we have no right to review their decision.

"It must be remembered that this view of the subject does not leave the prisoner or the Government of Peru without remedy for his unauthorized seizure within its territory. Even this treaty with that country provides for the extradition of persons charged with kidnapping, and on demand from Peru, Julian, the party who is guilty of it, could be surrendered and tried in its courts for this violation of its laws. The party himself would probably not be without redress, for he could sue Julian in an action of trespass and false imprisonment, and the facts set out in the plea without doubt sustained the action. Whether he could recover a sum sufficient to justify the action would probably depend upon moral aspects of the case, which we cannot here consider."

tion of the papers or action by the Peruvian government. The same rule applies to fugitives voluntarily returning, and, even though an agreement be entered into, the Federal Courts cannot interfere.

§ 438. General summary of views in regard to extradition as depending on treaty.-The power of the United States to extradite is either based upon the treaty-making power, or exists as one of the general attributes of nationality and sovereignty. If the former premise is true, it may be impossible for the United States to deliver any fugitive except in pursuance of treaty provisions with foreign powers. If, however, the right to extradite is an attribute of sovereignty, the United States must possess the same power to extradite aliens as it does to exclude or to deport them; in such event the power of the United States to extradite fugitives must be governed by the rules of international law and the general rights of the Government to exercise those attributes of sovereignty which we have discussed in preceding chapters. A

In re Cross, U. S. D. C. E. D. Nor. Car. 1890, 43 Fed. Rep. 517, SEYMOUR, J. Prisoners tried and convicted for forgery committed in North Carolina asked for a writ of habeas corpus on the ground that after escaping to Canada they voluntarily came back with the United States marshal, under agreement to be tried for an offence specified in an agreement and submitted to such trial. They now contended that the offence for which they were tried was not the common-law offence of forgery as understood by the treaty of 1842 with Great Britain, and that they should not have been tried therefor. The writ was denied on the ground that such position should have been taken on the trial and could not be subsequently raised, and also on the ground that as they came back voluntarily "no question arises."

"No question arises under the constitution, treaties, or laws of the United States, and therefore the federal courts have no jurisdiction. The defendants were not extradited, and therefore could not have been tried in violation of the treaty of 1842. The case of Ker vs. Illinois, 119 U. S. 436, 7 Sup. Ct. Rep. 225, was a stronger one than this, for Ker, who had taken refuge in Peru, had, pending extradition proceedings, been kidnapped in that country, and carried to Illinois for trial. Nevertheless the supreme court held that no case arose under the treaties, laws, or constitution of the United States. Conceding, contrary to the fact, that the state authorities violated the contract between their agent and defendants, there would at most arise either a defence to be interposed by a plea of abatement to the prosecution in Wake county or an action for damages, neither of which matters are relevant to this proceeding."