in re Opinion of Justices To Governor and Council
| Decision Date | 18 May 1909 |
| Citation | 201 Mass. 609,89 N.E. 174 |
| Parties | In re OPINION OF THE JUSTICES TO THE GOVERNOR AND COUNCIL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
At a meeting of the Governor and Council held on May 5, 1909, the following vote was passed, and on the following day was transmitted to the justices of the Supreme Judicial Court:
Whereas the Executive of the state of New York has made demand upon the Governor of this commonwealth for the surrender of an alleged fugitive from justice, charged in that state with the crime of murder in the first degree, the person so demanded being now confined in the state prison at Charlestown upon a conviction of burglary; and whereas, doubt exists whether or not said fugitive may be surrendered to the agent of the state of New York without pardon or commutation of sentence:
It is voted by the Governor and Council that the opinion of the justices of the Supreme Court be requested upon the following important question of law:
May a person convicted of crime in this commonwealth and duly committed to and confined in the state prison or other penal institution, be taken therefrom under and by authority of a warrant issued by the Governor for the extradition of such person upon lawful demand by the Executive of another state and in accordance with the Constitution and the laws of the United States?
On May 18, 1909, the justices returned the following answer:
To His Excellency the Governor and the Honorable Council of the Commonwealth of Massachusetts:
The undersigned justices of the Supreme Judicial Court, having considered the question upon which their opinion is required by the Governor and Council, respectfully submit the following opinion:
The duty of the Governor of the commonwealth to deliver up a person charged in another state with treason, felony or other crime, who has fled from justice and is found in this state and is demanded by the executive authority of the state from which he has fled, is imposed by article 4, § 2, of the Constitution of the United States. This duty is imperative in every case in which it arises.
The obvious purpose of the provision is to prevent an offender against the justice of one state from obtaining immunity from punishment by fleeing to another state. It does not create a preference in the enforcement of the laws in favor of the demanding state. It has no application to a case where the offender is, at the time, held to answer for an offense against the laws of the state in which he has taken refuge. The demands of justice in that state are as high as in the state from which he came. So long as he is held to answer to the demands of justice in the state where he is found, the demand of the executive authority of the other state should be subordinate to the operation of the laws of his place of refuge. Not only does this follow from the principles on which the constitutional provision rests, but it is stated in decisions of different courts. Taylor v. Taintor, 16 Wall. 366, 373, 21 L.Ed. 287; State v. Allen, 2 Humph. (Tenn.) 258; State v. Adams, 3 Head. (Tenn.) 259; In Matter of Troutman, 24 N. J. Law, 634; In Matter of Briscoe, 51 How. Prac. (N. Y.) 422; In re Rosenblat, 51 Cal. 285. See, also Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717.
In the first of these cases the court said, at page 370 of 16 Wall. (21 L.Ed. 287): 'It is indeed a principle of universal jurisprudence that where jurisdiction has attached to a person or thing, it is--unless there is some provision to the contrary--exclusive in effect until it has wrought its function.' In Ex parte Hobbs, 32 Tex. Cr. R. 312, 318, 22 S.W. 1035, 1037, 40 Am. St. Rep. 782, the court said of a requisition for one who was held under a criminal law of that state:
It has been said that the state in which the fugitive is found may waive its right to punish him for a violation of its own laws and deliver him up to the authorities of the other state. Doubtless this is true, but it does not follow that any one of the three departments--the executive, legislative or judicial--which together represent the sovereignty of the people in their government, can waive this right alone. The only cases that have come to our attention in which it was held that there was a waiver were when the Governor issued his warrant against a person who was at large under bail, and was therefore subject to arrest upon a proper process. So far as appears, the Governor had no knowledge in any of these cases that a prosecution had been begun in his state, and that the offender was held to bail. The most that has been decided is that delivery, under a warrant so issued, should be treated as a waiver of its right by the state that delivered up the fugitive....
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