The Barre daily times. (Barre, Vt.) 1897-1959, 1907-02-27
kidnapping Of Meyer, Hay
wood and PettlbOne.
JUSTICE M'KENNA'S OPININO
Dissents from Decision of United States
Supreme t-DeeIares the Miners
Were Deprived Of Their Rights
Under the Constitution.

4
them the privilege of consulting attor
neys or they friends and comrades OF
Of communicating with their families
and on militia guarded train specially
procured and in waiting for the pur-
pose. railroaded them to Idaho and
there incarcerated them In a peniten-
| tiaIy us If they were condemned Grim
lnals. Through their friends and attor-
neys they applied for writ of habeas
corpus, which ih everyday language
means simply an order to the sheriff
to show just cause why prisoner
| is held in custody. This was denied
| them by the Idaho courts, when they
applied to the United States district
court, only to be again denied the con.
stitutlonal rights of an accused citizen.
They then appealed to the United
States supreme court, which also de-
cided against them
But one supreme Judge, Mr.. Justice
/ NfcKenna, disagreed with his fellow
I Judges and handed down what Is
4 known as dissenting opinion--that Is,
I In this case one In favor Of the petit
TONERS. Here is Justice McKenna's
opinion:
I am constrained to dissent from the
opinion and Judgment OF the court. This
I principle announced as I understand IL,
\ Is that "a circuit court on the United
States. when asked upon habeas corpus
/ to discharge a person held In actual Gus
tody by a state for trial IN one OF It's
courts under an indictment charging a
4 ar TFnrprlV
take into account the methods whereby
1 the state obtained such custody"
In other words. and 10 illuminate the
principle by the light OF the facts in this
case (facts, mean. as alleged. and which
we must assume TO be true for the pur-
pose Of our discussion), that the ofiiHra
OF one state may falsely represent that
person was personally present in the state
and committed crime there and had fed
from its justice, may arrest such person
/ and take him from another state, the ofii-
GERS Of the latter knowing OF the false
accusation and conniying in and aiding It's
purpose. thereby depriving him Of an op-
portunity TO appeal 70 the courts, and
that such person cannot invoke the rights
guaranteed to him by the constitution
and statutes OF the United States In the
state TO which he In taken. And this II
is said, Is supported by the cases OF Ker
versus Illinois ui9 U. 8. 496) and Mahon
versus Justice lZ7 U. s. ZOO. These cases,
extreme as they are, do not Justify, In
my Judgment, the conclusions deduced
from them. In neither case was the state
the actor in the wrongs that brought
within its confines the accused person.
In the case at bar the states. through
their officers, are the offenders They. by
an Illegal exertion OF power, deprived the
accused OF q constitutional right, The
distinction Is important 10 be observed.
NFrF Avs Ytrss
tice. But it does not need emphasizing
kidnapping IS q crime pure and simple.
1t IS difficult 20 accomplish. hazardous at
every step All OF the officers Of the law
are supposed TO be on guard against It.
All OF the officers OF the law may be In
voked against It. But how Is II when the
law becomes the kidnaper-when the oiii-
GERS OF the law. using its forms and ex-
erting its power become abductors? This
is not a distinction without difference,
another form Of the crime OF kidnapping
distinguished only from that committed
by an individual by circumstances. II a
state may say TO one within her borders
and upon whom her process Is served: 1
will not inquire how YOU came here;
must execute my laws and remit YOU 70
proceedings against those who have
wronged you--may she so plead against
her own offenses2 May she claim that
by mere physical presence within her
borders an accused person IL within her
Jurisdiction denuded OF his constitutional
rights though he has been brought there
by her vioIence7
And constitutional rights the accused In
this case certainly did have, and valuable
ones. The foundation of extradition be-
tween the states Is that the accused
should be fugitive from justice from
the demanding state, and he may chal-
lenge the fact by habeas corpus immedi-
49,
he cannot be removed (flyatt versus
Cochran u9S U s. 6gl. and the right 10
resist removal Is not a right of asylum.
To call ii SO In the state where the ac-
cused Is Is misleading. II is the right TO
be free from molestation. II is the right
OF personal liberty In It's most complete
sense. and this right was vindlcated in
Hyatt versus Cochran and the fiction Of
constructive presence IN a state and a
constructive fight from constructive
presence rejected.
This decision illustrates at once the
value OF the right and tho value OF tho
means to enforce the right, 1t Is to be
hoped that our criminal jurisprudence
will not need FOR its efficient administra-
/ ton the destruction Of either the right
or the means TO enforce II. The decision
in the case at bar, rs / view It, brings us
perllously near both results. IL this ex-
aggeration? What are the facts in the
case az bar as alleged in the petition, and
which 1t Is conceded must be assumed
to be true2 The complaint which was
the foundation Of the extradition pro-
ceedings, charged against the accused the
crime OF murder on the Goth Of December,
1866, at Caldwell In the county OF Cam
yon, state OF Idaho, BY killing Ono Frank
Steunenberg BY throwing an explosive
bomb at and against hts person, The
accused avers In his petition that he had
not been lin the state OF Idaho III any
way, shape or form for period OF more
than ten years" prior TO the acts Of
which he complained and that the gov
ernor Of Idaho knew accused had not
been in the state the day the murder was
/ committed NOR al any time near that
day"
a conspiracy is alleged between the gov
ernor Of the state of Idaho and his advisers
and that the governor Of the state OF Col
orado took part In the conspiracy, the pur-
pose OF which was ito avoid the constitu-
5 Non Of the United States and the act OF
congress made in pursuance thereof and
70 prevent tile accused from asserting his
constitutional right under clause 2 sec
ton 2 OF article Of the constitution OF
the United States and tho act made pur-
suant thereof" The manner IN which the
alleged conspiracy had been executed was
set out IN detail Il was IN effect that
the agent OF the state Of Idaho arrived
IN Denver Thursday Feb. IS 1906 but II
was agreNS between him and the officers
OF Colorado that the arrest Of tile ac-
cused should not be made until some time