IN RE MA.HON.
625
arid Randall, his gain would have been :the difference between the contract price of carriage and the cost of transportation. What the plaintiff would have made if the contract had been kept by the defendant is the measure of damages if the contract is broken. This was the rule given to govern the jury. The ofter of evidence by defendant which was rejected was not for the purpose of showing freight earned by plaintiff in order to recoup, but what the boat was "said to have earned;" and it was properly excluded. This is not a charter-party, but a contract of affreightment, and the measure of damages for a breach is to be determined by the rules applicable to such contracts. The right to show by parol evidence that the defendant was an undisclosed principal is not doubtful. F01;d v. Williams, 21 How. 287. Motion for a new trial is denied.
In re
MA.HON.
(DiI/n'et (Jourl. D. Kentucky. March $, 1888.)
1.
EXTRADITION-INTERSTATE-ARREST AND . PnIVATE PARTIES. .
BRINGING INTO JURISDICTION
BY
On a petition for lwbea/l CorPU8, where it appears that the petitioner,.being charged with crimein one state. had tied to another, where he was arrested by a private party without authority. and that the authorities of the latter state had not acted upon a requisition of the executive of the former. the district court will not revise the arrest as being an effort tORct under Const. U. S. art. 4.. 2, providing for interstate extradition of persons charged. with crime. and laws passed thereunder. A lawful arrest, under aJlthorityof a state 90urt, of one unlawfully brought into the state by private parties, is not a violation of the fourteenth amendment to Const. U. S.· providing- that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." . 8. SAME-DUE PROOESS OF LAw. . .. In the fourteenth amendment toConst. S., providing that no state shall "deprive anl; person of life, liberty, or property. without due process of law," the phrase' due process of law" refers to the state's own process, and a lawful arrest under. authority of a state court of one unlawfully brouglit into the state by private parties, is not a violation of the provision. . 2. SAME-PRIVILEGES OF CITIZENS-FOURTEENTH AMENDMENT.
Petition for writ of Habeas (Joryus, by Plyant Mahon. Abner Justice, jailer of Pike county, having made his return to the writ of habeas coryus herein. on the day of February, II and Plj'ant Mahonhavmg filed hIS 'response thereto, and produced eVIdence, the colirt certifies the following to be the facts as admitted by the parties or proven to the court's satisfaction, viz.: The petitioner, Mahon, together with 19 other pereons, was, at the September term, 1882, of the circuit court· of Pike county, Ky., indicted by· the grand jury ,impaneled in and by said cburt,forwillful murder, alleged to have been bommittcdby them in said county. Mahon was at the time, and had
626 always:,booD,and lltill.· of at:esid.ent of 'Logan county iD$aiq stll,te. ,H.is, excellency, S. Buckller, governor of the 10th day 1&87" madeupon bis excellency, E. W. WilSOIl, governor of the state of West Virginia, a requisition under the seal of the commonwealth, demanding of him, the governor of West Virginia, ,the arrest and rendition of ,the said Plyant Mahon, and the, others named in said indictment, to thest;:tte of Kentucky, to answer the f!$.m,e, claiming that the said Plyatit Mahon and others had fled as fugitives from justice from said state. ,Said requisition was accompaniedby:a copy of the indictment therein referred to, which wae certifi.edby:thegoverner of Kentucky to be authentic. In said requisition he appointed one Frank Phillips agent of the state of Kentucky, to receive said Mahon ancltlle others, and, bring them to the state of Kentucky. This requisition was not acted upon by the governor of West Virginia, because, as he stated, of the wnnt of an affidavit in conformity with the laws of West Virginia. An affidavit was then made by said Frank Phillips in compliance with said request, and on the 13th of October, 1887, was sent bybis excellency, Gov. Buckner, to his excellency, Gov. Wilson. There was no further correspondence between the said governors in regJlordto said requisition, until the 9th of January, 1888. In the mean time,the Hon.Henty J. Walker, secretary of state by letter. dated November21, 1887, wrote to P. A, Cline, who was deputy-jailer of Pike county, in reply to a letter of quiryfrom 'him,'and notifiE'd him that the said requisition of the governor of Kentucky would be honored,e:x:cept as to Elias Hatfield and Andrew Varney, and that warrants would be issued for their arrest upon the receipt of .54, his feesIor issuing the stune.The reason given for iIIot issuing warrants for Elias Hatfield and Andrew Varney was because they were not guilty, in the governor's opinion, from the evidence which. ha:dbeen presented to him; Subsequently, by letter dated December L3, 1887, FJ:8.Jlk Phillips, the person appointed as agent wrote :to his Gov. Wilson, inc10sing $15 to pay fees. of the secretary of state, and requesting he should issue his warrants for the arrest of Anderson Hatfield, Johnson lIatfield, Capt; Hatfield, Daniel Whitt, and Andrew McCoy. and he Sent these warrants to him (Phillips) at Pike,ville. This money ($15) was returned to Phillips, and the order for the by Gov. Wilspu, because, as he states, from inwarrants formation subsequently obtained he believed the requisHion and expected money warrants would be used, not to ,secure p:ubl,ic justice, but to ·fromthe His excellency, (lov. Bllckner, on the 9th day of January, 1888,. wr,ote to hisexcellen<:y, Gov. Wilson, a letter of inquiry "ioregard to his action unller the requisitio);l., This letter of inquiry was ,replied to Ja,nllary21, 1888, by Gov. "'ruson. No warrants had been issuedby,tbe governor of West Virginia for the arrest of any persollmentioned'in the said requisitiolls on the 9th, ofJan uary, Qr before or since that time. Frank Phillips, with 25 or 30, armed men, went from Ken. tucky,acr,oss i.ntoWest Virginia, and ,'vjtll fprce and arms arrested the petitioner",Flyant Mahon, on and against his willanq.
:a.
IN RE MAllON.
527
by force brought him to the town of Pikeville in the state ofKentticky, and on the 11th of January, 1888, placed him in the jail of Pike county in said town, which was then in charge of Abner Justice, jailer of said county; and on the nextday,January 12,1888, while thus con:finedin said jail in said town, he was served with a bench-warrant, and arrested by the deputy-sheriff ofsaid The bench-warrant under which he was arrested was issued from the clerk's office of the criminal court of Pike county, which court theu had jurisdiction to issue bench-warrants, and try persons charged under the aforesaid indictments. When he was arrested, Phillips was asked by Mahon by what authority he did so, and he said he was state's agent to arrest him, and takEbimto "Pike,"and that he was authorized by the governor of West Virglllltl to makethearrest. His excellency, Gov. Wilson, did, under seal of West Gov. Buckner, the surrender and reVirgihia, dem.and of his turn to the state of West Virginia of the said Mahon, and the others who had been seized by force and arms and carried away to Pike county,by said Phillips and others, which request was declined by his excellency, Gov. Buckner, on the 4th of February, 1888. U. Gibstm andJ. H. Sinclair, for petitioner. P. W. Hardin, Atty. Gen., and J. ProcWr KnoU, for BAltR, (oraUy, after stating th8facta as above.) The question presented to the court under this writ of habeas C07pU8 is much narrower than the discussioriof counsel would il1dicate. It is now settled that the courts of the United States recognize the treaty obligation between the United States and other nations in regard to the extradition of fugitives from justice. In 'a recent case, the supreme court recognized the provisions in regard to extradition, in the treaty lmownas the" Ashburton Treaty" between the United States and Great Britain, nnd 'dedded that,a person extradited under that treaty could only be triedfot the crime for which he had beebextradited. 'fhis was not because 6f the comity whicn should exist' as between nations, nor because the law <>fnations ·would have been violated, but because of the terms, of thl! treaty, and the act of congress made to carry outtreaty obligations in the matter of extradition of fugitives from justice:U. S. v. Ra:u.8CMr, 119 U. S.407, 7 Sup. Ct. Rep. 234. It is also settled that there is not a personalright'ofasylum in a refugee. who has fled from this country, being charged with crime, to a foreign country. Thus, if there be no treaty authorizing extradition, or if the fugitive from justice' is not brought back from 'a foreign country under and according to the provisions of the treaty, if there be one, then the courts willuot allow the fugitive to plead the mode of his capture and return to this country as an llnswer to his crime or in .abatement to the indictment against him. Ker v. Illin0i8, 119 U. S. 437;7 Sup. Ct. Rep. 225; 110 Ill. 630; State v. Brewster, 7Vt. 118. As toa person charged with crime in one of the states ofthis Union, and who has fled to another state, there is some difference in the rea:soning of the courts; but I think allof the American authorities concur in the
528
FEDERAtt REPORTER,
conclusion,that the refugee, under such circumstances, ita£! not lI. personal right of asylum in the state to which he has fled. They &gree that the refugee, when returned to the state wherein he committed the crime, by whatever meaus he may have been returned, cannot plead as an answer to his crime the his return, and that he had not been extradited according to and under the law. State v. Smith, 1 Bailey, 283 ; State v.· Ross, 21 Iowa, 467; In re Noyes, 17 Alb. Law J. 407; Dows' Case, 18 Pa. St. 37. In Dows' Case, II. great jurist, Chief Justice GIBSON, made an important statement, though it was not necessary in the discussion of the case, and that was, that although a refugee from justice, who is brought to the state where he is charged to have committed the crime, from the state to which he. hadfied, has not of himself the right of asylum, if the chief executive of the state. from which he has been brought by unlawful means demands hiareturn, he should be discharged under a writ of habeas (XYT"jJUlI. . Thia isbeeause of the sovereignty which still exists in the states of this UJ;iion; and the cOlliHy which should exist ber tween them. This court cannot, however, consider what is or should. be the law of comity between the states of this Union, because, by the express language of the act under. which this habeas CorpUll was iSf'lued, this court is confined to the inqUiry w hether . petitioner is detained in custody by the jailer of Pike county in violation of the constitution or laws of the United States; norean this court consider any controYersy, if there be one; between the state ofWl;lst Virginia and the state of Kentucky. All such controversies. Rl;ewithin the exclusive jurisdiction of thesuprerue court. The right to extradite II. refugee, who is charged with crime in one state and has fled to another state of this Union, is governed by the second section, a,rt. 4, ConsL, which provides: ".A. person charged in any state with treason, felony, or other crimes, who wbo shaH .11ee frt/m justice, and be found in another state shall, on demand the executive authority of the statefrom which he has fled. be delivered up to be removeci to tIle state having jli'risdiction of the crime." Congress has enacted laws iocarry out this provision of the tion, and it is settled that both state and federal courts may, under a writ of habeas corpU8., revise the aGtion of the governor of a state upon whomti requisition is made if he Rnts. !llld has -the refugee arrested, to soothst the cODl"titution and the act of congress have been complied with. 'rhe courts, however, cannot, by process known to the law, compeLll governor upon l'luch a requisition, to act and have the refugee arrested and delivered oyer. Kentucky y. Dennison, 24 How. 66. It is claimed. that the petitioner is detained in violation of the constitution of the United States, and this .court should discharge him. And it is argued that the onlyprocp.ss by which he could have been extradited was tbeprocess.provided by the conl;\titution oftije United States, and the laws made thereunder, and that in this case this pl.'ocess has been invoked in so far to give this court jurisdiction to revise the ac.tion taken under it. Itis quite clear; as will be seen from the statement of facts already read,. that there wal:! noactioD, .ta}{en by the authorities of West Virginia
IN BE MAHON.
529
under the requisition made by· the governor of Kentucky. Phillips, though designated by the governor of Kentucky as the agent to receive from the proper authority of West Virginia the petitioner and others, and bring them to Kentucky, never in fact acted as the agent of the state of Kentucky. It is true, he represented himself to the petitioner as having authority from the governor of West Virginia to arrest him, and as being the agent of the state of Kentucky, but that was false. The governor of West Virginia never issued a warrant for the arrest of .petitioner, nor had Phillips any authority to do so, either from the governor of West Virginia or the governor of Kentucky, or anyone else. The process by which a lawfulextradition could be made was never used; nor did Phillips act under color of authority, and hence this court cannot revise his action as being an effort to act under the provisions of the constitution and laws of the United States. This brings us to consider the other proposition, which is that since the adoption of the fourteenth amendment to the constitution of the United States neither a resident or citizen of one state having been charged with crime in another state, and having fled therefrom;G/ln be extradited except by the due process of law which is provided in from that the federal oonstitution; and .the laws made thereunder, and unless he is thus extradited, he is within the protection of that amendment. It is true, I think, that the only legal mode of arresting a refugee from justice under such circumstances is under and according to the constitution of.theUnited States, and the laws made thereunder, and such state laws as may be constitutionally made in aid thereof. This being true, it maybe insisted that due process of law, as required by that amendment, when a refugee from justice has fled from the state where he is charged with crime to another state, is-First, the mode of extradition and the Jaws thereunder;BeCas provided by the federal and, after he is returned to the state from which he has fled, his arrest under and in accordance with the regular and lawful process of that state. Hence,as he was not extradited according to or under the process provided by the constitution and laws, but by force and against his will, he is now deprived of his liberty by theatate of Kentucky without due process of law within tho meaning of this amendment. That amendment declares, among other declarations that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state dl'prive any person of life, liberty or property without due process of law." It will be observed that this is not a grant to the citizen resident, or sojourner, as an individual, of any right which he did not theretofore have, but it is a limitation upon the power of the states, fut ill the federal constitution. It is not a declaration of what privileges or immunities citizens of the United State's are entitled to, but is a declaration that no state of the Union shall abridge them. The previous part of the section which declares:. "All personR born or naturalized in the United States, and Bubo. ject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside," createcl a national citizenship, but does v.34F.no.7-34
530
FEDERAL REPORTER.
not declare,or:define thepTivileges, rights, or 'immunities of a citizen of the United States. These' rights, privileges, and immunities are RSsumed to' exist from the relation of, national citizenship, and have not yet been cleaxly defined by the courts, but whatever they may be, and however they. may be extended. 'to rights and privileges which arenational in their nature, and beyond what theretofore existed from the relation of state citizenship, Ithink national citizenship would not confer upon a refugee who has fied: from a state in which he is charged with crime to another state, the right of asylum in said state. We have seen that no such individual right of asylum exists because of state citizenof the sovereignty ship, and if it existed at all, it would be which still remains in the states; There is no reason why a national citizenship should, confer the right of asylum which could arise and exist in a state of this Union only because of a reserved sovereignty in the state. It istl"ue that a state and of the United States both before and"since the adoption of the fourteenth amendment to the constitution is entitled to be extradited under and according to the tution 'and laws Qf the United States, and that he was and is entitled to a writ ofhqbeaacoryus, and tohisl'elease, when deprived of his liberty by force, and nat in accordance with the provisions of the laws regulating extradition'., Before the adoption of this amendment and the act of 1867,the staiecourts alonec()uld issue a writ of habeas corpus in favor or one seized by force, and process of law; But since that time the federal coa1'ts as well as the 'state courts would perhaps have jurisdiction in. such caSes because of, the second section. of article 4 of the arid laws made thereunder, and the national citizenship ·of the person forcibly seized and held in custody. The.writof habeas corpus, '!tV hether il!llued· from R state "01' '. fuderal court would have· no extraterritorial fOrCe{'l111d neither court could discharge a person; although originall;y unlawfully seized, whQhad been legally arrested, and was then of law, unless Rstate court should,as Chief Justice held by .indicates, release as a matter of comity between the states,the iugitive:fi.1orn justice upon the demand of the governor of the state from whichchehadbeen kidnapped. We therefore conclude that Kentucky has' not abridged the privileges and immunities of the petitioner as a citizen of the United States by arresting him under a bench-warrant, after he was \vithin the state." ' The nextinql1iry is, has the state of Kentucky deprived him of his witliin the meaning of this amendliberty without due process ment. The petitioner had been indicted by a grand jury for willful murder, and was arrested in this state under and by the usual and regular process which has existed ·in this from time immemorial for the aITest of persons indicted for crime by a grand jury. . He is held by due process of Jaw, if the inhibition of the fourteenth amendment is to be limited to· the process of the state which deprives him of his liberty; If, however, the phrase "due process of law," is to include the means by which others brought him into this state, then it is not due process of law. Clearly, the prohibition is upon "any state," and we think the
,INRE, CHARLESTON.
531
IIdueprocess oflaw" whicb ifrequired to beusedbv the state is its own process, and not the process of another stf:lte or the process of the United States. The supreme court has declined to define or attempt to define the meaning of "due processoflaw," and has wisely left its meaning to be ascertained by a"gradual process of judicial inclusion and exclusion." This case does not, however, require that we shall attempt to define it, becansetbere can be no doubt the Kentucky process by whi.ch thepetitioner was arrested after he was brought into the state, was "due procetls of law," so far as the process of that state is concerned. If, therefore we are correct in construing this part of the fourteenth amendment as meltning that the prohibition is confined to "a state," and that the "dlle process of law," which is required to be used before any person can be deprived of his life, liberty, or property by a state, is ,the due process of that state, then the petitioner's arrest and detention in the jail of Pike county is not a violation of this provision of the fourteenth amendment of the constitution of the United States. The fifth amendment to the constitution, ;of the United States deciared that 'Ino person shall be * * * deprived of life, liberty, or property;without due process of law." The uniform construction of this amendment is that the United States shall. not deprive any person of life, liberty, or property without due process oflaw, and that the process which is meant is a federal process. Indeed,the form and character of the government precludes any other construction. When this question was first presented, I was inclinedtotheopinion that '!due process of law" in tbe, meaning of the fourteenth amendment required the petitioner's extradition from West Virginia by a legal process, as well as his legal arrest after he was in Kentucky; but a more critical examination has satisfied me that this amendment has not been violated by the state of Kentucky in thus arresting and detaining the petitioner in the jail of Pik.e county. The petitioner must therefore be remanded to the custody of the jailer of 1'ik.e county, and it will be so ordered.,
CHARLESTON.
(IJilJtr(ct Court, D. Minne8ota. Hay, 1888 )
ExTRADITION-COMPl-AINT-FoRGERY.
forth the note alleged to be forged, its amount. the date. and names of the partiell. and the bank whic1l. discounted the note, is sufticient,both in sub· stance and in form. 2. SA1Ul:-IDENTITY OF PERSON; The identity of. the prisoner is sufficiently establlshed when, upon beinA brought before the commissioner. he admits that he is the person named in the complaint, and ,thl1t he. executed the note therein describe.d..
A complaint in extradition proceedings for forgery, which minutely sets
.
8.
SAME-EvlDENCE-DEPollITi:ONs-AUTHENTICATION..
The- act of congress (22, St. at Large, p. 216, § 0) 'declares that ineX'trscUtion cases copies of depositions, relating to' allegations in the complaint shall be
'.