St. Paul daily globe., 1893-02-17
HAM WILL Be Hello,
Judge Kelly Quashed the Writ
Of Habeas Corpus
Issued.
A Decision interesting From
the Fact That 1t Was
the First.
Another of the Famous Bush
nell Cases Won by the
Plaintiff.
Several More Damage Suits
Loom Up in the
Courts.

that there is no decision of the Mime
| sofa supreme court in such cases. The
following is synopsis of Judge Kelly's
opinion:
The REALTORS counsel rests his case on
two propositions: They claim that
having been surrendered by the terri
| tory of Utah to the state of Minnesota
| for trial upon one crime, he cannot be
now held to answer for another and a
different crime until he have reasonable
opportunity to return to the territory
whence he was taken. And they insist
| that this is SO upon two principal
grounds: first. comfy and good faith
| between the states require it; and sec
ond, they insist that such is the REALTORS S
constitutional right.
The Rauscher case is referred to as
arising under treaty between the
| United States and Great Britain. Rau-
Scher was eXtradlted from England on a
| charge of murder and tried in New
York. The eXtradition in that case in
volved treaty between sovereign
states. On the question of sovereign
states the court reasons as follows:
Sovereign States.
Now. the first inquiry is, What con-
| stitutes a sovereign state" as the
| words are used in this definition? 1t
| necessarily means state which makes
| treaties with other states; coins moneys,
levieS duties; decareS war and makes
peace, in addition to the ordinary eX-
ecutive, lawmaking and judicial func-
tions of states
The several states of the Union, COM
posing the one sovereign state known
| as the United States of America, are
not in their separate capacity sovereign
states within this meaning. They have
many of the attributes of sovereignty,
but not all of them; for, by the consti-
tuition, they yielded to the United States
the great distinguishing powers OF real
sovereignty. Some politicians ques-
toned this up to 1861, but in April, 1865,
at AppomattoX court house the dispute
was set at rest forever. | refer to this
ger of loose and illogical statements.
They are, $50 far as concerns their in
ternal government, separate sovereign
! ties, independent of each other, but no
farther" KY. VS.. Denison. "a How. &C..
| A state cannot, on demand of a'fOr-
eign government, surrender fugitive
| from justice within her borders. She
| may properly eXpel him, but she cannot
| surrender. This is an act of sovereign
! ty belonging solety to the United
| States. A state cannot enter into a
| treaty with foreign government, and
i it has been held that q state cannot act
in the matter Of eXtradition under the
! law of nations, or out of comfy with a
| foreign government, even though the
| state may have statute authorizing her
, to do so and the general government
have none. Elk parte Holmes, II Yer,
631; Z. S. vs.. Rauscher, supra.
Between the states. then, there is no
such thing as eXtradltion in its technical
and legal sense, because eXtradition in
that sense can only take place between
independent sovereignties and not be-
ton, calls the delivery of fugitives be-
tween the states by better word, ''ren-
dition."
Rendition of fugitives, on proper de-
mand, between the states exists by yir-
tue of the constitution of the United
States and the law of congress there
under, and does not depend on any
principle of international law or of
comfy which ought to exist between
civilized and independent nations. By
stepping across the border of the state
the criminal finds an asylum from az
rest. To obvlate the danger of this
Clear Abuse of Asylums
the United States constitution and law
provide in effect that MinnesOta'S proc
eSS, when issued in a certain way, will
reach the fleeing offender. 1t is in effect
the extending for the purposes of arrest
and rendition to justice the criminal
arms of any state, when used in proper
way and in proper case. into and over
Inn Of Othnr fot
There is, therefore, no question of
comfy in this case. If there was, this
| this relator cannot raise it. When the
territory of Utah complains it is time
enough to consider that question.
The constitution of the United States
does not give the prison at bar rene
| dy In this case.
Those courts and text writer's, in my
| opinion, are wrong when they say that
| sin principle thre can be no difference
| between the case of q fugitive brought
/ from a neighboring state. under the
! constitution, and one brought from a
! foreign country. For there is the plain
difference that in international eXtradi-
| ton under treaty it is expressly Stipu-
/ lated in the law that the person extra
dited shall be tried only upon the charge
named in the reQulSitlon, while neither
in the constitution, nor Ill any law OF
| congress providing for interstate rendi-
ton, is there any such provision. and
besides. as | have said, treaties name
particular extraditable crimes, etc.
Again, neither law nor reason ever
requires the doing of that which at best
is but an idle ceremony. Take the case
at bar. Why should Utah territory eX-
pect or Minnesota be compelled. in
good faith, to return the relatOr to the
territory whence he was received. ii it
he Utah'S duty under the constitution
to Immediately reSurrender-him on de-
mand to Minnesota to be tried under
this indictment2 The founders of the
government never intended so foolish a
thing. No one can possibly be benefited
by contrary holding, save sheriffs,
marshaIS or agents of the several states
in increase of fees by the multiplication
of ceremoniouS Surrenders and ceremo-
NOUS redelivereS.
As have heretofore decided. that the
service of the summons i'll a civil action
on this relat0r, while he was confined
in Jail awaiting trial, by virtue of the
interstate rendition here considered, was
void-it is proper 70 say that decision
depends on the following principles. and
can have
No Weight in This Matter:
First. although in confinement in
Minnesota, the relator may still be sued
in civil action in Utah. and is ordin-
arily entitled to be sued there if that is
his domicile. Second, it has been held
by the supreme court of Minnesota that
! resident of a sister state who volun-
tarily comes into this jurisdiction to at
tend the triai of a lawsuit, either as
witness or asa party, is privileged from
service OF summons in a civil action
| while so actually attending on
the court and for time reason
ably sufficient, under the crcum-
! stances, after the trial is over,
| for him to return to his home. A for
| tori, where one is compelled. by GRIM
NAL procedure, to attend as party, or
WHO may. if he choose. also become
| a witness on.the trial. This distinction
between the civil and criminal practice
| renders. impossible also one of the
! abuses OF ?jiltepstatf rendition most7ta.
| be feared, i. e., when it is used 10 bring
the defendant within the jurisdiction