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THE GREEN BAG
concerning interstate rendition is exclu sively granted to Congress and impliedly prohibited to the states. Would it be objectionable on the latter ground? It will undoubtedly be conceded that the power to surrender fugitives from justice existed in the several states prior to the adoption of the Constitution, as an at tribute of sovereignty. To this effect is "In re William Fetter," 23 New Jersey Law 311, also State v. Hall, 115 N. C. 811, 28 L. R.A. 289. In Prigg v. Commonwealth of Pennsylvania, 16 Peters 535, 10 L. Ed. 1060, at page 1092, Mr. Justice Story states that the right to surrender fugitive slaves as a matter of comity existed in the several states before the adoption of the Consti tution; and the power to surrender fugi tives from justice is clearly analogous in this respect. It is probably true, as stated by Chief Justice Taney and Mr. Justice Daniel in the last named case that, subse quent to the adoption of the Constitution, the right of a state to surrender either a fugitive slave or a fugitive from justice could not be logically based upon the police power of the state. But, if the power ex isted before, as an attribute of sovereignty, then it subsisted after, the adoption of the Constitution, upon the same ground, unless it was surrendered by the states. Whether or not it was so surrendered is the important question. Of course in this connection the writer is speaking of the power to deliver up a fugitive as a matter of comity, and not the power to demand such delivery. The latter power is not an attribute of sover eignty, and never existed in the states until it was created by the provision of the federal Constitution. There is some authority to the effect that a state has the power to provide for the surrender of a person charged with crime in another state. In State v. Hall, supra, the court says, at page 292, "But in the exercise of its reserved sovereign powers, the state may, as an act of comity to a sister state, provide by statute, for the
surrender, upon requisition, of persons who, like the prisoners, are indictable for murder in another state, though they have never fled from justice. If it shall be proved that the prisoners were in fact in North Carolina and the deceased in Tennessee when the fatal wound was inflicted, a law may still be enacted giving the Governor the author ity to issue his warrant and deliver them on requisition." Mr. Spear, in his work on Extradition and Interstate Rendition, at page 316, speaking of the case where a person is charged with a crime in a state from which he has not fled, says: "The Constitution may be amended, and then the laws of the United States may be amended so as to cover such cases; or state laws may be enacted to furnish a remedy which is not now supplied by either. Either method is possible, and there certainly should be some method for awarding justice in this class of cases." "Prigg v. Commonwealth of Pennsyl vania," supra, bears upon the question. The court holds that a statute of Pennsyl vania in regard to fugitive slaves is uncon stitutional, for the reason that it impedes the absolute right of the owner to recapture his slave, and is thus in conflict with the provisions of Section 2 of Article IV of the Constitution. Mr. Justice Story declares that the states have no power to legislate in regard to the surrender of fugitive slaves, that the Constitution confers such power exclusively upon Congress and prohibits it by implication to the states. His declara tion to this effect is dictum, as shown by Taney, Chief Justice, and Daniel, Justice, in their separate opinions. Mr. Justice Story classes legislation concerning fugitives from justice with that concerning fugitive slaves, and concludes that the former kind of legislation is also prohibited to the states. On this point it is very clear that his opinion is dictum. He holds that the power to legislate upon these subjects is exclusive in Congress for two reasons : First, because the right to retake slaves, (or
