¹ This Journal, Vol. 28 (1934), p. 231.

² (1886), 119 U. S. 436, affirming 110 III. 627 (1884). Applications for release on habeas corpus had been denied by the Circuit Court of Cook County, 16 Chicago Legal News 17 (1883), and by the Federal Circuit Court, N.D. III. (1883), 18 Ted. 167.

³ At p. 238.

⁴ (1952), 342 U. S. 519.

⁵ Citing, in addition to the Ker case, Mahon v. Justice (1888), 127 U. S. 700; Lascelles v. Georgia (1893), 148 TJ. 8. 537; and In re Johnson (1896), 167 U. S. 120.

⁶ At p. 522.

⁷ 119 U. S. 407.

⁸ At p. 430.

⁹ At p. 422.

¹⁰ Scott, J., in his cogent opinion for the Supreme Court of Illinois, said: “The arrest and detention of defendant was not by any authority of the general government, and no obligation is implied on the part of the Federal or any State Government, to the republic of Peru, to secure defendant immunity from prosecution for any offense. What was done was done by individual wrong …” Ker v. The People (1884), 110 III. 627, 643. On the case as it was made, this seems inaccurate.

¹¹ 18 Stat. 719.

¹² At p. 15.

¹³ Bush 697 (Ky., 1878).

¹⁴ 10 Tex. Crim. App. 627 (1881).

¹⁵ 14 Fed. 130 (D.C. Cal. 1882).

¹⁶ 39 Ohio St. 273 (1883).

¹⁷ Sir Arnold McNair, in his recent article on “Extradition and Exterritorial Asylum,” British Tear Book of International Law, 1951, p. 172 at p. 173, refers to the “intense political individualism” that surrounded the British approach to extradition in the nineteenth century. The same preconception is reflected in American judicial opinions.

¹⁸ State v. Vanderpool (supra), at p. 279.

¹⁹ Id. at p. 275.

²⁰ Brief and Argument for Plaintiff in Error, by Eobert Hervey and C. Stuart Beattie, at p. 20.

²¹ Even Justice Miller slipped in his language in the Bauscher opinion, when he spoke of “fraud upon the rights of the party extradited.” Justice Miller had worked hard on that opinion, realizing that it “would attract the attention of statesmen and diplomats of both nations.” Fairman, Mr. Justice Miller and the Supreme Court, 1862–1890 (1939), at p. 326, where a few other remarks on the case are recorded. But Miller had had no great experience with problems of international law, and here he tended to dwell upon the authorities rather than, as was his wont, exercising his own independent judgment.

²² Brief for Defendant in Error, at pp. 7, 9, 12.

²³ Cf. Cook v. U. S. (1933), 288 U. S. 102, 121; this Journal, Vol. 27 (1933), p. 559.

²⁴ Cf. Mahon v. Justice (1888), 127 U. S. 700, where Mahon, wanted in Kentucky on a charge of murder, had been kidnapped from West Virginia and was held by the State of Kentucky. The State of West Virginia, by its Governor, went into the Federal Court in Kentucky and brought habeas corpus proceedings to secure the release of Mahon. Denying relief, the majority of the Court, per Field, J., cited Ker as holding that the fugitive had no right of asylum in a foreign country where he had taken refuge, and continued: “So in this case, it is contended that … he has the right of asylum in the State to which he has fled,” unless removed as provided in the Constitution and laws of the United States. “But the plain answer to this contention is, that the laws of the United States do not recognize any such right of asylum … on the part of a fugitive from justice …” At pp. 714, 715. To which Justice Bradley (Harlan, J., with him), dissenting, replied with his usual acuity: the result in Ker was reached “because … the prisoner himself cannot set up the mode of his capture by way of defense, if the State from which he was abducted makes no complaint. Peru made none.” He continued: “But this is not such a case. The State from which Mahon was abducted has interposed, not only by a formal demand for his restoration, but by suing out a habeas corpus. … I take this to be a legal and apt remedy to settle the case by peaceable judicial means.” At p. 717.

²⁵ Cf. the trial of Alexander McLeod in the New York courts, after the affair of the Caroline. At the direction of President Harrison, communicated with instructions drawn by Secretary of State Webster, the Attorney General proceeded to New York to signify the views of the Federal Government to Governor Seward, and to observe proceedings. See Works of Daniel Webster (1890), Vol. V, p. 130 et seq., Vol. VI, p. 262 et seq.; Writings and Speeches of Daniel Webster (1903), Vol. IX, p. 130 et seq., Vol. XI, p. 262 et seq. Other key citations to this historic incident are People v. McLeod, 25 Wend. 483 (N. Y. 1841), and the critical note and letters in 26 Wend. 663; 2 Moore’s Digest of International Law (1906) 24 et seq.; Jennings, , “The Caroline and McLeod Cases,” this Journal , Vol. 32 (1938), p. 82 Google Scholar.

²⁶ See Republic of Mexico v. Hoffman (1945), 324 U. S. 30.

²⁷ “A final judgment or decree in any suit in the highest court of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error….” The present provision is 28 U.S.C. § 1257 (1948).

²⁸ Sec. 693, Rev. Stat. (1875).

²⁹ This states generally a principle illustrated by The Charming Betsy (1804), 2 Cr. 64.

³⁰ At p. 444.

³¹ As by the Act of Aug. 29, 1842, 5 Stat. 539, 28 TJ.S.C. § 2241 (c)(4) (1948), extending the power of the federal judiciary to grant habeas corpus where the petitioner was held for an act done under the sanction of a foreign state. This was an outcome of the McLeod Case (note 25 supra). President Tyler, in his Annual Message to Congress of Dec. 7, 1841, had said: “The Government, by our institutions, is charged with the maintenance of peace and the preservation of amicable relations with the nations of the earth, and ought to possess, without question, all the reasonable and proper means of maintaining the one and preserving the other. Whilst just confidence is felt in the Judiciary of the States, yet this Government ought to be competent in itself for the fulfilment of the high duties which have been devolved upon it under the organic law, by the States themselves.” Cong. Globe, 27th Cong., 2d Sess., Appendix, 1.

³² Brief for Defendant in Error, pp. 19–21.

³³ Transcript of Record, p. 11.

³⁴ Memoria que el Contra-Almiante D. Patricio Lynch, Jeneral en Jefe del Ejercito de Operaciones en el Norte del Perú, Presenta al Supremo Gobierno de Chile, Lima, 1882, Documentos, at p. v. The decree is reprinted ia Papers Relating to the Foreign Relations of the United States for 1881, at p. 938.

³⁵ Art. 43 of the Hague Eegulations of 1907, 36 Stat. 2277, 2306.

³⁶ Such was the conclusion of the U. S. Government when Mexico sought the extradition of fugitives who had taken refuge in Cuba when it was under military government at the close of the Spanish-American War. The opinion of the Division of Insular Affairs, War Department, Jan. 9, 1900, is set out in Magoon’s Reports, The Law of Civil Government under Military Occupation (1902), at p. 523 et seq. The same conclusion was reached by the American occupation authorities in Germany at the close of World War I. American Military Government of Occupied Germany, 1918–1920, Report of the Officer in Charge of Civil Affairs, Third Army and American Forces in Germany (The Hunt Report), Mimeographed, Vol. IV, Appendices, App. No. 54, p. 356 et seq. Instances consistent with this view are set out in 4 Moore’s Digest 265 et seq. and 4 Hackworth’s Digest 22 et seq.

³⁷ Admiral Lynch’s report, just cited, with supporting documents and correspondence, was under date of May 17, 1882, which was prior to the Ker affair.

³⁸ Of the line of cases in the Supreme Court, Ker alone dealt with a seizure in a foreign country. There are factors in such a situation which are not present where the matter lies between two States of the Federal Union, and factors in the latter which are not present in the former.

³⁹ The subject is ably discussed in “Criminal Jurisdiction of a State Over a Defendant Based Upon Presence Secured by Force or Fraud,” by Austin W. Scott, Jr., 37 Minn. Law Eeview 91 (1953).