The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1888-06-24
THE HATPIELD.M'COY CASE.
Dissenting Opinion of Justices Bradley aud
Harlan, ofthe Supreme Court.

Z ! hprcini tOFTGspOndEllrc OF the ihttttgcileers
WAsntSoroS, D. c., June 23.--Jastict
, Bradley and Harlan, Of the United State
Supreme Court, have filed their dissen
ing opinion in the case of the Hatfield
Mccoy murderers, on the hGbeds corpu
proceeding instituted on behalf Of Ply
ant Mahon. The opinion OF these tw,
justices wholly ignores the proposition
argued by the counsel Of the State o
Kentucky, and confirmed by both sub
ordinate United States courts, and finally
by the majority Of the Supreme court
that the Supreme Court has exclusive
Jurisdiction in contests between States
OF the Union. The INTELLtGRNcER cor.
respondent called on Justice Bradley and
was given the following points on the
case, with permission TO print:
u dissent from the judgment OF the
court in this case. In my opinion the
writothabeas corpus wasproperly issued,
and that the prisoner, Mahon, should
have been discharged and permitted to
return to West Virginia. He was kid
mapped and carried into Kentucky in
plain violation OF the Constitution OF the
United States, and is detained there in
continued violation thereof. 1t is true,
he is charged with having committed a
crime in Kentucky. But the constitu-
ton provides u peaceable remedy for
procuring the surrender OF persons
charged with crime and fleeing into an-
other State. This provision OF the con-
stitution has two objects: the procuring
possession OF the offender, and the pre-.
vention OF irritation between the States,
which might arise from giving asylum to
each others criminals, and from violent
ly invading each others territory to
capture them. 1t clearly implies
that there shhll be no re-
sort to force for this purpose. The
constitution has abrogated, and the
States have surrendered, all right to OBJ
tain redress from each other by force.
The constitution was made to "estab-
lish justice" and ENSURE domestic tran
quility;" and to attain this end as be-
tween the States themselves, the judicial
power was extended ito controversies
between two or more States" and they
were enjoined to deliver up to each
other fugitives from justice when de-
manded, and even fugiHVes from SER
vice. This manifest care to provide
peaCeahle means OF redress between
them Is utterly irreconcilable with any
right to redress themselves by force and
violence; and, OF course, what is uncon-
stitutional for the States is unconstitu.
tional for their citizens, 1t is I'M
don tnIlv tp,1n kkof noooc;apnI =,
stances Of unlawful abduction OF n
criminal from one State to another for
trial, have been winked at; and it has
been held to be no defence for the pris-
oner on his trial. Such precedents are
founded on those which have arisen
where criminal has been seised in one
country and forpihly taken to another
trial, in the absence of any international
treaty OF extradition. 1t is obvious that
such cases stand on very different
ground, 1t Is there question between
independent nations bound by no ties
Of mutual obligation on the subject, and
at liberty to adopt such means OF redress
and retaliation MS they please. But
where an extradition treaty does exist,
and n criminal has been delivered up un.
der it, he cannot, without violating the
treaty, be tried for any other crime but
that for which he was delivered up.
UNITED States vs.. Rauscher, 10 U. S.
407.) This shows that, even when
obtained for one offence, he
cannot be prosecuted for another. 1t
is true that In the same volume isfound
the case Of Ker VS.. Illinois, ID. 427, in
which it was held not to be a good plea
to an indictment, that the prisoner was
kidnapped from Peru, with which Coun-
try We had an eXtradition treaty. But
this was because, as before said, the
prisoner himself cannot set up the mode |
OF his capture by way Of defence, il the |
State from which he was abducted makes |
no complaint. Peru made none,
"Hut this Is not such case, The
State from which Mahon was abducted
has interposed, not only by formal de-
mand for his restoration, but by suing
out a habeas corpus. Perhaps the writ
might have been sued out OF this court, |
rs the controversy had come to BIO a con-
troversy between the States, kentucky
having Ryailed herself Of the fruits OF
the unlawful abduction by retaining the
victim, and refusing to restore him on
demand. The State Of West Virginia,
however, has elected, as she might do,
to have the writ directed only to the
person hlldIng Mahon in custody.
take this to be legal and apt remedy to
settle the case by peaceable judicial
means.
A requisition would not apply. That
is provided for the extradition OF fugi-
tives from Justice. 1t would apply for
the delivery up OF the kidnappers, but
not for the restoration OF their victim.
1t is n special constitutional remedy, ad-
dressed by the executive OF one State to
the executive OF another, imposing u
constitutional duty OF eXtradition when
properly made in proper case. But
the present case is a different one. 1t
is not the surrender Of n fugitive from
justice which is sought, but the surren-
der OF q citizen unconstitutionally alb.
Quoted and heidin custody. There must
be some remedy for such a wrong. 1t
cannot be that tho States, In surrender
ing their right Of obtaining redress by
military force and reprisals, have no
remedy whatever. 1t was suggested by
counsel that the State Of West Virginia
might sue the State Of Kentucky for
damages. This suggestion could not
have been seriously made, No; the
remedy adopted was the proper one.
Habeas corpus is not only the proper
legal remedy, but a most salutary one.
1t is calculated to allay strife and irrita-
ton between the States by securing a
judicial and peaceful decision Of the
controversy.
But it is commended that, although it
may be within the spirit OF the constiu-
ton, it is not within its letter, and
special legislation is necessary to enable
the courts or Judges TO issue habeas
corpus. ! do not think that the conclu-
sion follows. Congress, from the be-
ginning, clothed the courts and judges
OF the United States with the general
power to issue writs Of habeas corpus;
with the restriction, at first, not to ex-
tend to prisoners in Jail, unless in Gus:
tody under authority Of the United
States, &c. But in 1888, 1912, and 1867
this restriction was modified, and by the
l.,t nnk rn,,, quad o1tO1athnr ain nil coan1