In the case of Ex parte Kaine, 3 Blatchf. 1, in 1853, Mr. Jus tice Nelson said:

"The proof, in all cases under a treaty of extradition, should be not only competent, but full and satisfactory, that the offense has been committed by the fugitive in the foreign jurisdiction—sufficiently so to warrant a conviction, in the judgment of the magistrate, of the offense with which he is charged, if sitting upon the final trial and hearing of the case. No magistrate should order a surrender short of such proof."

The rule here announced does not appear to have been adopted, and is regarded with considerable suspicion.

The evidence to justify the holding of a prisoner for trial is such as amounts to "probable cause" to believe him guilty. It is not necessary that it should be sufficiently conclusive to authorize his conviction. In Re Farez, 7 Blatchf. 345, Judge Blatchford said that he adopted the language of Chief Justice Marshall, sitting as a committing magistrate in Burr's Case, who said:

"On an application of this kind, I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused; but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be, a case made out by proof, furnishing good reason to believe that the crime alleged to have been committed by the person charged with having committed it." 1 Burr's Trial, 11.

Another definition of probable cause which has often been quoted is that of Mr. Justice Washington, in Munns v. Dupont, 3 Wash. C. C. 31, which is as follows: "What then, is the meaning of the term 'probable cause?' We answer, a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offense with which he is charged." This is a very different thing from requiring evidence sufficient for conviction, which must be such as to leave no reasonable ground of guilt. Moore, Extradition & Rendition, § 340.

The question of guilt or innocence is wholly irrelevant in determining the action of the executive of the state upon which the demand is made. That question is to be investigated and determined by the courts of the state where the alleged crime was

committed. But there must be a charge of crime existing against the fugitive in the state demanding his surrender, before the demand can legally be made, and it was said by Taney, Ch. J., in Kentucky v. Dennison, 65 U. S. 24 How. 104, 16 L. ed. 728, that it must be a charge made in the regular course of judicial proceedings. People v. Brady, 56 N. Y. 182.

The sufficiency of the rules of evidence necessary to justify the retention of the alleged criminal, must be such as would warrant his apprehension under a similar charge in the asylum state; and these rules of evidence may be such as Congress has prescribed, or in the absence of such provisions, and in so far as they may be inapplicable under the common law.

"Each piece of the documentary evidence offered by the agents of the foreign government in support of the charge of criminality should be accompanied by a certificate of the principal diplomatic or consular officer of the United States resident in the foreign country from which the fugitive shall have escaped, stating clearly that it is properly and legally authenticated, so as to entitle it to be received in evidence in support of the same criminal charge by the tribunals of such foreign country." Re Henrich, 5 Blatchf. 414.

§ 611. What the Affidavit should Disclose.-The affidavit must directly charge that petitioner has committed an offense, as it would be a dangerous precedent to establish, that any man may be deprived of his liberty and removed to another state upon such an accusation. The statement therein, that affiant "has reason to believe, and does believe," that petitioner embezzled, or fraudulently converted to his own use, the property mentioned, is not the statement of any fact, and for that reason the affidavit is fatally defective. The language of the supreme court of Michigan in Swart v. Kimball, 43 Mich. 451, is applicable here:

"Charges are not verified by an affidavit that somebody is informed and believes that they are true. This is mere evasion of the law; the most improbable stories may be believed by any one, and the man most free from any reasonable suspicion of guilt is not safe if he holds his freedom at the mercy of any man three hundred miles off, who will swear that he has been informed and believes in his guilt.

"A mere affidavit in the form of an information, containing no evidence, and followed by no deposition stating any fact tending

to show guilt, is insufficient to support a warrant. The liberty of a citizen cannot be violated upon the mere expression of an opinion under oath, that he is guilty of a crime." Ex parte Dimmig, 74 Cal. 165.

In Ex parte Smith, 3 McLean, 121, the affidavit accompanying the requisition of the governor of Missouri for the arrest of Smith was made by one Boggs, and charged "that on the night of the sixth day of May, 1842, while sitting in his dwelling, in the town of Independence in the county of Jackson, he was shot, with intent to kill, and that his life was despaired of for several days, and that he believes, and has good reason to believe, from evidence and information now in his possession, that Joseph Smith, common called the Mormon Prophet, was accessory before the fact of the intended murder, and that the said Joseph Smith is a citizen and resident of the state of Illinois."

This affidavit was held insufficient as a basis for the governor's warrant, upon the ground, among others stated, that it was not positive in its charge.

§ 612. Evidence in Habeas Corpus Proceedings.—In a habeas corpus proceeding for the discharge of an alleged fugitive it may be shown by parol evidence that the accused committed the crime in the demanding state as alleged in the warrant of extradition and that he is in fact a fugitive from the justice of said state. Wilcox v. Nolze, 34 Ohio St. 520. See Am. & Eng. Enc. Law, title Extradition, 27.

The Federal and state courts have concurrent jurisdiction in extradition proceedings. Ex parte Brown, 28 Fed. Rep. 653; Re Roberts, 24 Fed. Rep. 132. A person arrested under a warrant of extradition from one state of the Union to another "is in custody under or by color of the authority of the United States;" and the national courts have jurisdiction to inquire by habeas corpus into and determine the legality of the same. Re Doo Woon, 18 Fed. Rep. 898. The question of lawful arrest of a person as fugitive from justice from another state may be inquired into upon a writ of habeas corpus issued by either a Federal or state court. Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544. Although the courts have power, on habeas corpus, to review the decisions of the executive authority in extradition proceedings, they will not overrule such decisions unless they are clearly satis

fied that an error has been committed. Ex parte Brown, supra. In a case arising on habeas corpus, the court cannot investigate the question as to the guilt or innocence of the defendant (Re Roberts, supra) or the grade of the guilt. Re Palmer, 18 Int. Rev. Rec. 84. Where there is sufficient competent evidence before the commissioner for him to exercise his judgment as to its sufficiency, his decision will not be reviewed on habeas corpus. Re Wadge, 21 Blatchf. 300. The circuit court has power on a writ of habeas corpus, in conjunction with a writ of certiorari, to revise the action of the commissioner committing accused for surrender under an extradition treaty. Re Henrich, 5 Blatchf. 414. If the commissioner should commit the prisoner upon no clearer or more convincing testimony than was presented at the former examination, the circuit court has power to review the testimony and correct his error. Re Kelly, 26 Fed. Rep. 852. The court will not reverse the decision of the commissioner on the question of criminality of the accused. Re Stupp, 12 Blatchf. 501; Re Macdonnell, 11 Blatchf. 170; Re Vandervelpen, 14 Blatchf. 137; Re Wahl, 15 Blatchf. 334; Re Wiegand, 14 Blatchf. 370. No appeal lies from the judgment of the United States circuit court on a habeas corpus in an extradition case. Re Henrich, supra. A fugitive from justice, charged with crime, will not be released on habeas corpus, because he was induced by a stratagem to come within territory where he could be properly arrested, provided the stratagem used was not itself an infraction of law. Ex parte Brown, supra. But where a prisoner is held under the sentence of any court of the United States in regard to a matter wholly beyond or without the jurisdiction of that court, he may be discharged on a writ of habeas corpus. Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274.

Mr. Church, in his work on Habeas Corpus, says: "A warrant for the arrest and return of a fugitive criminal must recite or set forth the evidence necessary to authorize the state executive to issue it; and unless it does it is illegal and void." He cites in support of his text Re Doo Woon, 18 Fed. Rep. 898. fully supports the text, and cites as authority Ex parte McLean, 121, and Ex parte Thornton, 9 Tex. 635; Ex parte Stanley, 25 Tex. App. 372.

That case
Smith, 3

"The certainty of the commitment ought to appear; and a commitment is liable to the same objection where the case is so loosely

stated that the court cannot adjudge whether there was a reasonable ground of commitment or not. A commitment does not sufficiently state the offense by simply designating it by the species or class of crimes to which the committing magistrate may consider it to belong, but it ought to state the facts charged or found to constitute the offense, with sufficient particularity to enable the court, on a return to the habeas corpus, to determine what particular crime is charged against the prisoner." McCunn, J., in Re Leland, 7 Abb. Pr. N. S. 64. See also Re Rutter, 7 Abb. Pr. N. S. 67.

NOTE. What follows is a draft of the regulations for many years in vogue in the state of New York, relating to the topic under review. They have been cordially endorsed by ex-Governor Rice, of Massachusetts, who pronounces them in every way admirable, meeting all of the legal requirements, both as regards the rights of the accused, and the duties of the executive. They are reputed to have been drafted by the late Hon. John K. Porter, and are thought to be worthy of insertion as affording several valuable suggestions as to the rules of evidence governing these cases.

RULES FOR APPLICATIONS FOR EXTRADITION.

STATE OF NEW YORK, EXECUTIVE CHAMBER, Aug. 1, 1855. The following rules will be observed by the Governor of the State of New York in reference to applications for requisitions on Governors of other States and Territories, and the Chief Justice of the Supreme Court of the District of Columbia. U. S. Rev. Stat. § 5278; Rev. Stat. relating to the District of Columbia, § 843.

The application must be made by the district attorney of the county in which the offense was committed, and must be in duplicate original papers, except indictments, which must be certified copies.

The following must appear by the certificate of the district attorney:

A. The full name of the person for whom extradition as asked, together with the name of the agent proposed, to be accurately spelled, Roman capital letters, for example, JOHN DOE.

B. That in his opinion the ends of public justice require that the alleged criminal be brought to this state for trial, at the public expense, and that he is willing that such expense be a charge on the county in which the crime was committed.

C. That he believes he has sufficient evidence to secure a conviction of the fugitive.

D. That the person named as agent is the proper person, a public officer (naming his official position), and that he has no interest in the arrest of the fugitive.

E. If there has been any former application for a requisition for the same person growing out of the same transaction, it must be so stated, with an explanation of the reasons for a second request, together with the date of such application, as near as may be.