By the Court,
Civilized nations have seen the necessity and propriety of surrendering fugitives from justice, that they may be tried by the laws of the country in which the offence was committed. This matter has usually been arranged by treaty; but where no treaty exists, the comity of nations requires that offenders against the laws of one nation shall riot find a sanctuary in another. In such cases, a state or nation which is required to surrender-an individual who is under the protection of its laws, owes it to itself as well as the individual concerned, to institute an examination into the facts alleged to constitute the crime, and to surrender the person charged, if upon such examination there appears satisfactory evidence of guilt. Where a treaty exists, the evidence of the commission of the crime, as well as the circumstances under which the surrender is to be made, will of course be explicitly stated and in practice pursued. Had our federal constitution and laws been silent on this subject, and no conventional arrangement existed between the several states composing our confederacy, it may be conceded that the practice arising from the comity of nations would be applicable; and before we would surrender any person demanded as a fugitive from justice, it would be our duty to examine into the facts of the alleged crime, and be satisfied that no reasonable doubt existed as to his guilt. But under our federal government, this matter has been regulated, and we are not left to the uncertainty arising from an inquiry in one state into the particulars of an offence committed in another. The constitution of the United States provides that “ 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 having jurisdiction of the crime.” Here then is the law on the subject—a positive regulation and tantamount to a treaty stipulation ; and we
But how charged ? The law of congress has answered this question as follows: “ Whenever the executive authority of any state in the union, or of either of the territories, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a magistrate of any state or territory as aforesaid, charging the person so demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured.” In order, therefore, to give the governor of this state jurisdiction in such a case, three things are requisite: I. The fugitive must be demanded by the executive of the state from which he fled ; 2. A copy of an indictment found, or an affidavit made before a magistrate charging the fugitive with having committed the crime; 3. Such copy of the indictment or affidavit must be certified as authentic by the executive. If these pre-requisites have been complied with, then the warrant of the governor has properly issued, and the prisoner is legally restrained of his liberty. We must look at the return to the habeas corpus for the facts. 1. It is there expressly recited that the governor of Rhode Island has demanded that John L. Clark be arrested and delivered up as a fugitive from justice ; 2. That a copy of an affidavit was presented, charging Clark with certain acts which the governor of Rhode Island certifies are made criminal by the laws of that state ; 3. That the affidavit is certified' by the governor of Rhode Island to be duly authenticated. Here then is a literal compliance with the constitution and laws
Having thus inquired into and ascertained what are the duties of other officers, we are next to inquire into our own duties. These are to be found in our statutes. They direct, 2 R. S. 567, 8, 9, that the court or officer authorized to allow the habeas corpus shall, upon the return thereof, proceed to examine into the facts contained in the return. If no legal cause be shewn for the imprisonment, the party shall be discharged ; but if he is legally detained, he shall be remanded. The provisions of our statute seem to contemplate an imprisonment upon a charge of an offence against our own laws ; but the prisoner is. entitled to the benefit of those provisions, so far as they are applicable. The 48th section, page 569, permits the party, upon the return of the habeas corpus, to deny on oath any of the material facts set forth in the return, or allege any fact to shew the detention unlawful: and then the court or officer shall, in a summary way, proceed to hear proofs and allegations, and dispose of the party as justice may require. Under this section, the prisoner has made an affidavit denying all criminality or fraud in relation to the Rurrillvilc Bank, which are charged against him in the affidavit presented to the governor of this state. But whether he is guilty or not, is not the question to be decided here; it is whether he has been properly charged with guilt, according to the constitution and the act of congress. The prisoner does not deny any fact set forth in the warrant upon which he has been arrested. It is not denied that the governor of Rhode Island has demanded him as a fugitive from justice. It is not denied that an affidavit charging him with criminality was presented to the governor of New-York; nor is it denied that the governor of Rhode Island has certified that the affidavit is properly authenticated. These are the material facts. Governor Throop does not assert the prisoner’s guilt, but that he had before him such evidence as the law directed, to authorize the issuing his warrant, Whether the prisoner is guilty or innocent is not the question before us; nor is any judicial
It has been objected that no crime has been committed, and that the proceedings contemplated by the statute of Rhode Island are of a civil nature merely. The first answer is that the statute of Rhode Island is not properly before us. An of-fence of a highly immoral character is stated in the warrant, and is certified by the governor of Rhode Island to have been made criminal by the laws of that state. This is evidence enough in this stage of the proceedings, of the nature of the offence ; but if we look into the statute of Rhode Island, which has been informally read from their statute book, we •find a criminal offence ; it is this: that if any officer of a bank shall so fraudulently manage its concerns that the public or any individual dealing with it shall be defrauded in the payment of their just demands, such officer shall be prosecuted in the supreme judicial court by indictment, and on conviction the offender may be fined $5000. This is very plain language. There is to be a prosecution by indictment, and a fine is imposed which goes of course to the public—not to the party defrauded. There is nothing here like a civil remedy ; and though the indictment and trial are to take place in the supreme court, yet criminal proceedings do not commence there. The first proceeding is usually, if not always, before an inferior magistrate; but in this case an affidavit is all that is required, provided it is duly authenticated.
It was also objected that a crime of greater atrocity was intended by the constitution than is here charged. It seems that when proceedings are instituted by the comity of nations
An objection was also taken to the warrant for omitting to state facts; and among other cases that of The King v. Kendall & Roe was referred to, 1 Salk. 347, 12 Mod. 82, 1 Lord, Raym. 65, where, upon a return to a habeas corpus the prisoners were bailed, having been arrested by a warrant of a secretary of state for aiding JamesMontgomery to escape, who was committed upon suspicion of treason, because the treason was not set forth in the warrant with an allegation that Montgomery did the fact. That case is not analogous; the offence of Kendall & Roe was aiding a person to escape from custody, and their offence would be graduated by that of the person assisted; it was important therefore that it should be stated; but this is a proceeding regulated by positive statute, ond the warrant need contain no more than the statute requires.
I am of opinion that the proceedings in this case have been regular; that the prisoner is legally in custody of the officer, and that he should be remanded.
The counsel for Clark then prayed the court to grant a writ of error to the court for the correction of errors in this state, and that until the hearing of the case before that tribunal all proceedings against him be stayed.
This motion was argued by the counsel, and the following points were taken on the part of the prisoner:
If the nature of the decision allowed of restitution, or did not put the party in a remediless condition, then he may be left to prosecute his appeal without stay of other proceedings.
But where the effect of the decision alleged to be erroneous is such as to be executed, and where restitution cannot be awarded, then it is a duty to stay the proceedings on such appeal in good faith, and certificate of counsel of a belief there is error.
To refuse such stay of proceedings, is, in effect, to deny the appeal, and defeat a right given by the constitution and by statute.
The Court allowed the writ of error, but held that they had no power to grant a stay of proceedings; that although the statute gave the prisoner a right of appeal, yet as the legislature had not provided either for his detention or bail in the interim, it was not for the court to interfere.