Leary's Case. officer the demand should be made, and by what evidence it should be supported. Then followed the act of 1793 now in question. By that act, the demand is required to be made on the governor of the State, and to be accompanied by a copy of the indictment found or affidavit before the magistrate charging the crime, certified by the governor of the State making the demand as authentic. Independently of all constitutional and legislative provisions, the surrender of fugitives from justice, as between nations, has been treated as an executive power lodged in the supreme executive authority of the State. It was an international concern, and the executive is the organ of communication between one State and another, and under the first treaty with Great Britain in the case of Robbins, the power of the president to surrender a fugitive from justice whose extradition was claimed under a treaty, which is declared by the constitution, to have the force of law, was held by the concurring authority of the executive department of the government, the house of representatives, and the district court of the United States for the district of South Carolina, to be exclusively an executive power and duty in the absence of any legislative regulation (See statement of the case, Hurd on Hab. Corp. 2nd Ed. 582-588. See also Holmes v. Jennison, supra). Although this case provoked great discussion, yet the result shows how strongly at that time the opinion prevailed that this was essentially an executive power. While Congress had a considerable latitude of choice as to the means to be employed to enforce this constitutional obligation and right, it saw fit to preserve as nearly as possible the existing methods as to dealing with the subject, devolving the duty of performing the obligation on the supreme executive authority of the State where the fugitive might be found; as to the evi Leary's Case. dence to be produced to him, that the party demanded is charged with crime, the mode of proof is particularly prescribed and limited by the act itself.* It must be by a copy of an indictment or affidavit certified by the governor of the State making the demand as authentic. Under this statute, clearly no other evidence is sufficient or can be received by the governor, on whom the demand is made, as sufficient in proof of the fact that such indictment or affidavit exists as the basis of the charge of crime. The constitution provides that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, and Congress may, by general laws prescribe the manner in which acts, records, and proceedings, shall be proved, and the effect thereof." Congress has by general laws† provided the mode of proving in one State the judicial records of another State, but it was clearly competent for Congress by a general law to provide what should be the mode of proving an indictment or other judicial proceeding for the purpose of these extradition proceedings. Congress having legislated thereon, the authentication by the governor of the copy is clearly the mode provided by general law for this purpose, and such authentication imports absolute verity, and no other authentication is necessary to enable the governor to act under the statute, although for other purposes Congress has provided a different mode of proving State records. This disposes of the claim that a copy of the indictment certified by the clerk of the court with the accompanying certification of the judge must be produced either to the governor or to this court in proof of the fact that the party is charged with crime. And upon the question whether the warrant of the *U. S. Rev. Stat. § 5278, 2nd ed. p. 1022. + U. S. Rev. Stat. § 905, 2nd ed. p. 171, embodying the provision of the judiciary act of 1790. It Leary's Case. governor is conclusive evidence in this proceeding that the party named in the warrant stands charged with crime in the State demanding his surrender, I am of opinion both on reason and authority that the warrant is conclusive. The statute itself expressly provides that the governor shall cause the party to be arrested and delivered up. It makes no provision for any other proceedings whatever subsequent to the issue of the mandate of the governor except the delivery of the party and his removal by the agent of the demanding State. may well be assumed that in devolving this duty and responsibility on the highest executive officer of the State, Congress understood that they were making a suitable provision for securing the careful execution of the duty under circumstances calling for great caution and circumspection. The governors of these States were the representatives of the sovereignty of the States, so far as it still existed in a qualified form. They were aided in their positions by high legal officials, and in some of the States had the constitutional right to call on the highest court in the State for its opinion on doubtful questions of law. They were especially charged with the execution of the laws of the State, and might be assumed to be naturally jealous of any attempt to abuse this particular right of demanding fugitives, since it was a demand for the surrender of their own citizens or persons found within the protection of their own laws. Not only is there nothing in the act to show that any proceedings subsequent to the issue of the warrant were contemplated to give full authority for the arrest and removal of the party, but there is nothing in the act requiring the governor issuing the warrant to attach thereto the evidence or copies of the evidence on which he acted, nor since the passage of the act has the practice obtained, so far as appears, of attaching such copies. This uniform practice of eighty-five years is strong Leary's Case. proof that no such copies are necessary to accompany the warrant. Moreover, neither by this act, nor by any other, is any process given for compelling the governor of a State to perform a federal duty, or obligation devolved upon him by a federal law. In this very matter, the supreme court of the United States have held that while the duty of surrender is absolute, and a mere ministerial duty, yet that, especially in view of the nature and dignity of the office of governor, and the great public mischiefs that would result from the exercise of such coercive powers against him, the federal government has not, in any of its departments, the power to issue the writ of mandamus against him, to compel the issue of the warrant (Kentucky v. Dennison, ut supra). It is suggested, in the present case, that this court can issue a writ of certiorari against the governor, to compel the production of this record, but the objections stated in the case last cited against a mandamus, apply with equal or still greater force, to the exercise of such a power by this court. How can the governor of the State be regarded as in the position of an inferior tribunal or magistrate, to whom the writ of certiorari will issue in aid of a writ of habeas corpus ? In the performance of this duty, he does not act as an inferior magistrate, but as the representative of, and the officer vested with the executive authority of the State, and not as a federal officer or magistrate. Speaking of the governor's duty to issue the warrant, Chief Justice TANEY says: "The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Constitution which arms the Government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, Leary's Case. even in the administration of its internal concerns and reserved rights. And we think it clear, that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State." "But if the governor of Ohio refuses to discharge this duty" (i. e., the obligation on the State to carry into execution this law), "there is no power delegated to the General Government, either through the Judicial Department or any other department, to use any coercive means to compel him." And if it was not within the contemplation of Congress that any coercive measures should be used against the governor, to compel the performance of the principal duty involved, namely: the issuing of the warrant, it is not supposable that it was within their contemplation that any coercive measures would or could be used to compel the performance of any other duty that might devolve upon him, as an incident to or result of the performance of such principal duty. And if the issue of a mandamus by the supreme court against a governor might lead to imposing on him duties inconsistent with the public performance of the duties of his office of governor of the State, and with the dignity of his position, yet more unseemly and improper would be the attempt of an inferior court of the United States to subject him to the process of certiorari, to compel the production of papers, with the consequences which must flow from his refusal, of his being treated by the court as in contempt. The total want of power to compel the production |