Year: 1879

proceeding by direct route to take him to. the
state OF Illinois, and on his way he did no act
which can be construed into design to take him
to any other place, or use the remedy as pre-
text for any purpose other than the extradition
papers contemplated. It is true the statements
| and conversations of the petitioner might con-
| vey the impression that Frank would be able
t" stop the criminal proceedings in the State of
ILLINOIS by arranging his private Indebtedness
| incurred by the false pretense and he would
aid him in so doing; but court cannot on
| such suspicion declare that the purpose of the
officer was to kidnap his prisoner. He might
| have made such statements with the design of
! quieting Frank and his counsel, and thus avoid
any delay or enquiry into the regularity of his
authority.


However censurable to some persons his con-
duct might appear, cannot say he abused his
authority and is not protected in the arrest of
Frank by the warrant of Gov. Pillsbury


Second-Was the petitioner justified by vir-
tue Of the authority conferred upon him by the
original warrant of the Governor of Minnesota,
| and the other extradition papers, in the rear
rest of Frank after his discharge by the State
court Of Wisconsin and his return to Mime
| sofa?


If the prerequisites of the law of 1898 are
complied with, and the warrant of the execu-
tive OF the State to which the fugitive has fed,
is issued on the requisition of the executive of
the demanding State, accompanied by a copy
OF an affidavit charging crime, under the laws
| OF the latter, certified as authentic by the exc
cutive and an arrest is made and delivery to
the agent of the demanding State then the per-
son so arrested is legally restrained of his lib
! erty and may be removed to the State having
| jurisdiction OF the crime-a discharge of the
person under the writ of habeas corpus by the
judge OF any court, State or federal would be
coram non judiee and void.


This presents the question whether the Judge
of ST. Croix county exceeded his Jurisdiction
under the writ of habeas corpus, and his dis
charge of Frank is nullity. think this ac-
ton of the State court of Wisconsin is tho first
Judiciary of a State through whose territory
the fugitive from justice is being transported
after the concurrent action of the two States
alone interested in the transaction.


If there is any authority of law for it. then it
becomes necessary before the act of
of fugitives from Justice can be sue
cessfully enforced, more than two States
must at the time the requisition is made as
sent to the arrangement. It has always been
supposed that not only the original States of
tins union who adopted and accepted the con-
stltution, but also all States subsequently, ad-
mitted, on an equality with the original States
agreed to be bound thereby, and recognize the
full force of every provision thereof, anything
IN the constitution and laws of the State to
the contrary Notwithstanding.


The first section of the fourth article of the
constitution provides that ''full faith and
credit shall be given to the public acts, records
and Judicial proceedings of every other State"
| etc. And the last clause of the second section
OF the same article, the subject matter thereof
appearing to be in the minds of the trainers of
the constitution, in connection with the first
section provides "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 fed, be delivered up
to be removed to the State having jurisdiction
Of the crime." To carry out this latter pro-
vision OF the constitutions the act of 1893 was
passed.


The papers presented on his return to the
writ OF habeas corpus before the State court of
Wisconsin, and now by the petitioner before
piled with, and if full faith is to be given the
public acts, records and judicial proceedings'
OF any other State in the State of Wisconsin,
these papers duly authenticated under the seals
OF the States of Minnesota and Illinois, and
signed by the executive of each State, are so
entitled. 1t SO, then under the writ of habeas
corpus the court in Wisconsin on discovering
by the return of the agent that the person in
custody was held by virtue of the constitution
and laws OF the United States in respect of fu-
gltlves from justice, and the two States inter-
ested in the transaction had concurred in their
action, should have proceeded no further. Any
action obstructing this constitutional right was
absolutely void.


But if wrong in this view of the case, con-
ceding that the Wisconsin court had jurisdic-
tlon to proceed further than an inquiry into
the authority by virtue of which Frank was
held and examine into the legality of the
requlsltion, affidavit and other papers, let us
see whether the proceedings are not regular
legal and in conformity with the aot of Con-
gress of 1893.


The term crime in this article of the con-
stltutlon means any ofense indictable bv the
laws of the State demanding the surrender and
is not confined to common law crimes. While
the affidavit annexed to Gov. Cullom's requi-
sltlon tested by the common law rule would
not Ilo perhaps be sufficient to charge a crime of


false pretenses,' yet when the requisition is
examined it is there stated that the offense
With which Frank is charged in the affidavit
annexed. IS CRIME under the laws Of the State
OF Illinois. The warrant of Gov. Pillsbury be-
ing issued, not on the affidavit alone but on
| the demand of Gov. Cullom ALSO the reouire-
ments of the law of 1898 were fulfilled and is
conclusive reason to my mind why the action
OF the Wisconsin court is nullity.


10 sum up in the language of Mr.. Spear, an
able writer upon Interstate extradition pro-
cedure, 1T necessarily results that, when the
executive warrant for surrender of the al
legged fugitive has been issued in conformity
with law, no judicial power can interpose to
! arrest or defeat its operation. Unless coun-
termanded by the authority issuing it, all the
remedies the accused party, if he has any,
l
| which he is surrendered.'


The petitioner therefore protected bv
| the executive warrant in the rearrest of Frank
and he is discharged from the custody of the
| sheriff.


Immediately after the court had said the last
word, which gave Burke his freedom. Mr..
O'Brien arose and stated he wanted to take an
appeal.


| The court was under the impression that it
| couldn't be entertained.
Thereupon Mr.. O'Brien quoted the law. and
| readily gained the assent of the court to the
appeal.


Mr.. CIough also broke in with query about
all this, but was also satisfied that an anpea1
was in regular order.


Mr.. O'Brien to Mr.. Clough-Do you intend to
proceed with your warrant?


Mr.. Clough-Most assuredly.


Mr.. OBrien then intimated to the court that
as an appeal had been allowed, he would
request stay of proceedings to leave matters
as they were, until such a time as the appeal
might be heard.


The court declared he was at loss to find
authority for such course; the officer was
free-free to act as he pleased in the premises.


Mr. OBrien asked that Burke might be held |
to bail.


The Court-All right, I will hold him in 300
and take his own recognizance.


This ended the case in court.


The Case O,<t of Co.sst.


SO soon as matters were arranged as above the |
crowd got up and went out. The crowd took |
its station along the stairway and huddled to-
gether on the sidewalk. Frank got out passed
across the street and went into the iail. He |
had small following. Burke came ont.