Page:The Green Bag (1889–1914), Volume 19.pdf/682

 INTERSTATE EXTRADITION be the strongest authorities against the con stitutionality of state legislation. The first is People v. Hyatt, 172 N. Y. 176, 60 L.R. A. 774. In that case the only question before the court was whether or not a man could be held as a fugitive from justice under the federal statute, when he was not within the State of New York at the time the crime was committed. A determination of this question simply required an examina tion of the statute and the Constitution, and, upon such examination, the court holds that the case does not come within the statute. For some unknown reason, the court goes out of its way to say: "No person can or should be extradited from one state to another unless the case falls within the constitutional provision, and the power which independent nations have to surrender criminals to other nations as a matter of favor or comity is not possessed by the states." There was no, claim or argument made that the prisoner was held by virtue of any power inherent in the state of New York; in fact it does not appear that there was any statute under which the right to so hold him could be claimed, and, in the absence of a statute, it is elementary that the power could not be exercised; State v. Hall, 28 L.R. A. 289, Cyclopedia of Law and Procedure, Volume XIX, page 53, note 3. The court denies to the state a right which was not raised or involved in the case. The reason assigned is that where a prisoner has been surrendered under the constitutional provision and brought within the jurisdiction of the demanding state, the surrendering state cannot procure his release as a matter of right, even though its process has been abused in the proceed ings; Mahon v. Justice, supra; and Lascelles v. Georgia, 37 L. Ed. 549. But all this proves is that the states do not act on the ground of comity in cases arising under the statute of the United States. This is freely conceded; it needs no further proof than the mere wording of the constitutional provision. The question still remains:

643

Have the states relinquished all power to legislate concerning interstate rendition, simply because they have made it obligatory upon themselves to deliver up persons as fugitives in certain cases? The question whether the rule of Mahon v. Justice and Georgia v. Lascelles would apply in a case where a state delivered up a person as a fugitive on the ground of comity, does not concern us here. It might well be that a different rule would be applied, and that the complaint of the surrendering state that its process had been abused would prevail in the demanding state, as a matter of comity. If so, there would be no conflict with the provisions of the Constitution of the United States, for the Constitution would not be involved in the slightest degree. It is conceded that the states act under obligation, and not as a matter of comity, in cases arising under the Constitution; to say that for this reason the states have surrendered all power to act. in cases not covered by the Constitution, seems to be begging the question. The court cites in support of its" contention Lascelles v. Georgia, supra. In that case also a person was delivered up as a fugitive under the statute of the United States. It was argued on behalf of the prisoner that he could not be tried in the demanding state on any charge except the one designated in the rendition proceedings, and, as premises for this conclusion, it was stated that this was the rule in cases of extradition from foreign countries, and that the relations between the states in such matters were similar to those between independent nations. The court holds that the second premise is false, and that for this reason the analogy does not hold. The only relations before the court for consideration are those existing between the states with reference to the delivery of fugitives from justice under the Constitution. The decision is that these relations are not like those between inde pendent nations. This is manifestly true. But it does not answer the question whether