Ex parte Morgan

• Decision Date: 01 October 1883
• Citation: 20 F. 298
• Parties: Ex parte MORGAN.
• Court: U.S. District Court — Western District of Arkansas

20 F. 298

Ex parte MORGAN.

United States District Court, W.D. Arkansas.

October, 1883

[Copyrighted Material Omitted]

Brizzolara Marcum & Tiller and Taliaferro & Tabor, for petitioner.

Grace &amp Duncan, for the Cherokee Nation.

PARKER J.

The demurrer to the sheriff's return, from the nature of that return, raises all the questions affecting the legality under the constitution and laws of the United States of the imprisonment of Morgan. I have no concern with the morality or public policy of this case. From the state of the case, I am called on to consider it from a purely legal stand-point, and to view it as a naked, simple legal question. It is true that, in the construction of a law, where there is doubt as to the purpose to be subserved by the law-maker we may take into consideration an existing condition of affairs, and the demands of public policy as to such affairs. But, in a case of this kind the chief executive of a state cannot act on grounds of public policy. His power, and his only power, under the law as it now stands, to extradite a person from his state, must be found in the constitution and laws of the United States. If it is not there, it does not exist. Not only the power, but the manner of its exercise, is based exclusively on the constitution of the United States, and the law of congress passed in pursuance thereof.

Interstate extradition is regulated by law. No such power can ever be exercised by the chief executive of a state on the ground of comity. Rorer, Interstate Law, 225. Nor has it ever been, in this country, properly and legally exercised on such ground. Comity may and does afford a strong reason for the enactment of laws providing for the extradition of criminals, that they may be brought to justice, and society be thus protected. But we must look to the law for the right to exercise this extraordinary power. Even before our present form of government came into existence we find a number of the colonial plantations entering into a compact in the nature of a treaty for the extradition of fugitive criminals. If it could be done upon comity alone why enter into a compact. As early as 1643 the plantations under the government of Massachusetts, the plantations under the government of New Plymouth, the plantations under the government of Connecticut and the government of New Haven, and the plantations in combination therewith, pledged themselves to each other to render to the colony from which he escaped, the fugitive from justice, and they prescribed the means to be employed in such rendition. Kentucky v. Dennison, 24 How. 66; Winthrop's Hist. Mass. 121, 126. A similar compact was entered into by the American colonies when they organized themselves under the articles of confederation and assumed the title of 'The United States of America.' The fourth of these articles provided that if 'and person, guilty or charged with treason, felony, or other high misdemeanor in any state, shall flee from justice and be found in any of the United States, he shall, upon demand of the governor or executive power of the state from which he fled, be delivered up and removed to the state having jurisdiction of his offense. ' This article of the confederation was one of the principles of the 'firm league of friendship and perpetual union' that the then acting as sovereign and independent states established. The reasons of the creation of this power were public policy and public peace and public justice. But the reasons for the creation of a power are not the power, but they can only be used as a means of ascertaining what the created power is. The power under the articles of confederation is to be found in the fourth of these articles. The same power was incorporated into the constitution of the United States. The second section of the fourth article is as follows:

'A person charged in any state with treason, felony, or any 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 fled, be delivered up to be removed to the state having jurisdiction of the crime.'

On the twelfth of February, 1793, congress passed an act respecting fugitives from justice, and persons escaping from the service of their masters. The first section of this act is substantially reproduced in section 5278 of the Revised Statutes of the United States, and is as follows:

'Whenever the executive authority of any state or territory demands any person, as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found, or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled, to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear,' etc.

We are able to see by this history of the method of extradition among the colonies and states that almost from the first organization of civil society in this country it has been regulated, as to the right of and the method of the exercise of the right, by law. Those who founded the colonies came from countries where personal liberty was not at that time very secure, and they were therefore extremely jealous of any discretionary power founded upon comity or anything else affecting the liberty of the citizen. Hence they sought early in our history to provide by positive enactments, in the shape of compacts or laws, in what cases and in what manner the citizen shall be restrained of his liberty.

There is no doubt of the right of this court, by habeas corpus, to inquire into the legality of the arrest of Morgan, as it is alleged in the petition that he is restrained of his liberty contrary to the constitution and laws of the United States. If he is properly held in arrest, it must be by virtue of the constitution and laws of the United States. If he is improperly held, it is in violation of such constitution and the law of congress. This state of the case clearly gives this court jurisdiction, by habeas corpus, to inquire whether the governor of Arkansas had the power to honor the requisition of the Cherokee chief; and, again, if he had such power, did he comply with the act of congress in the exercise of it? The state of the case at the time the governor issued the warrant for the arrest of Morgan, as shown by the record before him, is what is to be passed on by this court. The provision of the constitution on the subject of interstate extradition is the fundamental law of the land. This provision, together with the act of congress on the subject passed in pursuance of the constitution, is a part of the supreme law of the land, and is therefore a part of the law of each state. Congress having acted, the law passed by it is the one to be observed in the manner of interstate extradition.

The question most material in this case, and the one going to the very marrow of it, is, could the governor of the state of Arkansas honor a requisition from the chief of the Cherokee Nation by issuing a warrant for the arrest of Morgan that he might be delivered to the agent of the Cherokee Nation? Suppose the act of congress was fully complied with as to the manner of executing this power, is the chief of the Cherokee Nation the executive authority of any state or territory in the sense in which the word 'state' is used in the constitution, and the words 'state' and 'territory' are used in the act of congress? If so, and the demand is made in due form as prescribed by the act of congress, the governor has done no more in causing the arrest of Morgan than to properly exercise the power vested in him by the laws of the United States. The power making the demand must be the chief executive of a state, as required by the constitution, or of a state or territory, as provided by the act of congress.

The question has been raised in argument that the act of congress, so far as it provided that the demand for extradition could be made upon the governor of a state by the chief executive of a territory, was void as being against or beyond the constitution. Of course, congress cannot legislate beyond the power given it by the constitution. The exercise of its legislative authority must be because of a power expressly given, or of one which is necessary to carry out and make effective one expressly given, by the constitution. The constitution uses the word 'state' alone, and the act of congress uses the words 'state' and 'territory.' It is a question that will admit of serious discussion. But it must be remembered that, under article 4, Sec. 3, of the constitution, congress has power to make all needful rules and regulations respecting the territory or other property belonging to the United States. Is not this part of the constitution a part of the fundamental law of the land? It is a part of the supreme law of the land, and therefore a part of the law of each state. Are not all laws deemed necessary to be passed by congress and within their power under the constitution to pass, binding on the states and to be observed by them? If congress deems it a needful rule or regulation, relating to the territories of the Union, to extradite their fugitive criminals, it has the power to pass such a rule, not, perhaps, under the...