THE GREEN BAG
636
A
CONSTITUTIONAL TRIAL
OF
QUESTION
WILLIAM
D.
SUGGESTED
BY
THE
HAYWOOD
By Charles P. McCarthy LONG before the trial of William D. Hay wood actually began, the attention of the entire country had been attracted by the questions involved in his appeal to the Su preme Court of the United States, relating to the manner in which he was arrested in the state of Colorado and brought within the jurisdiction of the state of Idaho. From the standpoint of both lawyer and layman, these questions are among the most interesting and important raised by the case. The cases of Pettibone v. Nichols, Moyer v. Nichols, and Haywood v. Nichols presented the same facts and questions of law, and the decision of the Supreme Court in the first named case, reported in Volume 27 of the Supreme Court Reporter at page 3, governs in all three. The principle, that a person forcibly abducted from one state, and brought to another, by parties acting with out warrant or authority of law, and held for a criminal offense in the latter state under valid process issuing from its courts, is not entitled, under the Constitution and laws of the United States, to release from detention by reason of such forcible and unlawful ab duction, has long been too well settled to to merit any discussion. Mahon v. Justice, 127 U. S. 700, 32 L. Ed. 283, 8 Sup. Ct. Rep. 1204, Kerv. Illinois, 119 U. S. 436, 30 L. Ed. 421, 7 Sup. Ct. Rep. 225. In Cook v. Hart, 146 U. S. 183, 36 L. Ed. 934, the Supreme Court uses the following language: "The distinction between cases of kidnapping by violence of unauthorized persons without the semblance of legal action, and those wherein the extradition is conducted under the forms of law, but the governor of the surrendering state has mistaken his duty, and delivered up one who was not in fact a fugitive from justice, is one which we do not deem it necessary to consider at this time."
In his answer to the return of the sheriff, in the Circuit Court of the United States for Idaho, the petitioner Haywood raised practically the same question suggested by the words above quoted. He stated in sub stance that the governors of Idaho and Colorado and the respective officers and agents of those states, conspired together to have him taken from Colorado to Idaho, un der such circumstances and in such way as would deprive him, while in Colorado, of the privilege of invoking the jurisdiction of the courts there for protection against wrongful deportation from the state; also that he was not present in the state of Idaho on the date the alleged crime was said to have been com mitted, nor for months prior thereto, nor thereafter, and was therefore not a fugitive from justice, and that these facts were all known to the governor and other officials of the demanding state. Pettibone v. Nichols, supra, at page 113. The fact that the petitioner was given no opportunity to invoke the jurisdiction of the courts in Colorado is disposed of by the Su preme Court as follows: "No obligation was imposed by the constitution or laws of the United States upon the agent of the state of Idaho, to so time the arrest of the prisoner and so conduct his deportation from Colorado as to afford him a convenient op portunity, before some judicial tribunal sit ting in Colorado, to test the question whether. he was a fugitive from justice, and, as such, liable, under the act of Congress, to be conveyed to Idaho for trial there." This same point had been raised in Ker v. Illinois, supra, but was not specifically passed on by the court in that case. The important question remains: Is there a legal distinction, so far as the con stitutional rights of the accused are con
