INTERSTATE EXTRADITION cerned, between the cases where he is ab ducted by private individuals and the case, where he is abducted by the officers of the state under the forms of law? In either case he will be released on habeas corpus if he succeeds in invoking the jurisdiction of the courts prior to the time he is brought within the jurisdiction of the demanding state. Once within the jurisdiction of that state and held under legal process issuing from its courts, he cannot, in the former case, base any right under the Constitution and laws of the United States, upon the method of his abduction; can he do so in the latter case? In Pettibone v. Nichols the court holds on page 119, that the difference in fact between the two cases is of no conse quence as to the principle involved; that the method by which the accused man was brought within the jurisdiction is immate rial. Mr. Justice McKenna dissents upon this point, holding that the difference in fact above set forth brings the case outside the doctrine of Mahon v. Justice, and Ker v. Illi nois. He states on page 1 20 that the differ ence is not merely one of circumstances in the manner of the abduction. Again on page 121 he says: "I submit that the facts in this case are different in kind and trans cend in consequences those in the cases of Ker v. Illinois and Mahon v. Justice, and differ from and transcend them as the power of a state transcends the power of an individual. No individual or individuals could have accomplished what the power of the two states accomplished; no individual or individuals could have commanded the means and success; could have made two arrests of prominent citizens by invading their homes; could have commanded the re sources of jails, armed guards, and special trains; could have successfully timed all acts to prevent inquiry and judicial interfer ence." Therefore, from his own statement of the case, the conclusion seems irresistible that the difference is merely one in the cir cumstances of the abduction. It is difficult to see how such a difference of itself can ere-
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ate a right under the Constitution and laws of the United States. The justice says that the distinction is recognized by the court in Mahon v. Justice, supra. He probably re fers to the sentence in the opinion in which the court says that the state of Kentucky did not authorize the unlawful abduction of the prisoner from West Virginia, 32 L. Ed. at page 286. The context, in the light of which this sentence must be read, shows that the court is here considering whether or not the abduction was brought about by any statute of the state of Kentucky which vio lates the Fourteenth Amendment of the Con stitution of the United States, and finds that such is not the case. The reasoning certainly does not establish the distinction in question. In making and defining a dis tinction between civil and criminal cases, some courts have said that, in a civil case, a party guilty of fraud or violence in bringing the defendant within the jurisdiction, cannot take advantage of his own wrong; whereas in a criminal case, the state, that is the people, is guilty of no wrong. State v. Ross, 21 Iowa 467. Possibly these expressions throw light on the theory of Mr. Justice McKenna. His idea seems to be that the state is barred by its own wrong, consisting of the wrong ful acts of its officers, a doctrine somewhat analogous perhaps to that of estoppel. Pos sibly, in a civil action, the state may be estopped by the erroneous or wrongful acts of its officials, if such acts are clearly within the scope of their authority as fixed by law. Salem Improvement Company v. McCourt, Oregon, 41 Pac. Rep. 1105. The writer has been unable to find any case in which the doctrine of estoppel, or any bar after the analogy of an estoppel based upon the un lawful acts of officials, has been raised to de feat the state in a criminal prosecution. It is clear that the Supreme Court did not evolve a new rule of law for the cases of Mover, Haywood, and Pettibone, but ap plied to them an old and well established doctrine. A consideration of the case of Pettibone v.
