Dissenting Opinion: Bradley, Harlan, JJ.

mitted a crime in Kentucky. But the Constitution provides a peaceable remedy for procuring the surrender of persons charged with crime and fleeing into another State. This provision of the Constitution has two objects: the procuring possession of the offender, and the prevention of irritation between the States, which might arise from giving asylum to each other's criminals, and from violently invading each other's territory to capture them. It clearly implies that there shall be no resort to force for this purpose. The Constitution has abrogated, and the States have surrendered, all right to obtain redress from each other by force. The Constitution was made to "establish justice" and "insure domestic tranquillity; and to attain this end as between the States themselves, the judicial power was extended "to controversies between two or more States," and they were enjoined to deliver up to each other fugitives from justice when demanded, and even fugitives from service. This manifest care to provide peaceable means of redress between them is utterly irreconcilable with any right to redress themselves by force and violence; and, of course, what is unconstitutional for the States is unconstitutional for their citizens. It is undoubtedly true that occasional instances of unlawful abduction of a criminal from one State to another for trial, have been winked at; and it has been held to be no defence for the prisoner on his trial. Such precedents are founded on those which have arisen where a criminal has been seized. in one country and forcibly taken to another for trial, in the absence of any international treaty of extradition. It is obvious that such cases stand on a very different ground. It is there a question between independent nations bound by no ties of mutual obligation on the subject, and at liberty to adopt such means of redress and retaliation as they please. But where an extradition treaty does exist, and a criminal has been delivered up under it, he cannot, without violating the treaty, be tried for any other crime but that for which he was delivered up. United States v. Rauscher, 119 U. S. 407. This shows that, even when rightfully obtained for one offence, he cannot be prosecuted for another. It is true that in the same volume is found the case of Ker v. Illi

Dissenting Opinion: Bradley, Harlan, JJ.

nois, 119 U. S. 437, in which it was held not to be a good plea to an indictment, that the prisoner was kidnapped from Peru, with which country we had an extradition treaty. But this was because, as before said, the prisoner himself cannot set up the mode of his capture by way of defence, if the State from which he was abducted makes no complaint. Peru made none.

But this is not such a case. The State from which Mahon was abducted has interposed, not only by a formal demand for his restoration, but by suing out a habeas corpus. Perhaps the writ might have been sued out of this court, as the controversy had come to be a controversy between the States, Kentucky having availed herself of the fruits of the unlawful abduction by retaining the victim, and refusing to restore him on demand. The State of West Virginia, however, has elected, as she might do, to have the writ directed only to the person holding Mahon in custody. I take this to be a legal and apt remedy to settle the case by peaceable judicial means.

A requisition would not apply. That is provided for the extradition of fugitives from justice. It would apply for the delivery up of the kidnappers, but not for the restoration of their victim. It is a special constitutional remedy, addressed by the executive of one State to the executive of another, imposing a constitutional duty of extradition when properly made in a proper case. But the present case is a different one. It is not the surrender of a fugitive from justice which is sought, but the surrender of a citizen unconstitutionally abducted and held in custody. There must be some remedy for such a wrong. It cannot be that the States, in surrendering their right of obtaining redress by military force and reprisals, have no remedy whatever. It was suggested by counsel that the State of West Virginia might sue the State of Kentucky for damages. This suggestion could not have been seriously made. No; the remedy adopted was the proper one. Habeas corpus is not only the proper legal remedy, but a most salutary one. It is calculated to allay strife and irritation between the States by securing a judicial and peaceful decision of the controversy.

But it is contended that, although it may be within the

Dissenting Opinion: Bradley, Harlan, JJ.

spirit of the Constitution, it is not within its letter, and special legislation is necessary to enable the courts or judges to issue a habeas corpus. I do not think that the conclusion follows. Congress, from the beginning, clothed the courts and judges of the United States with the general power to issue writs of habeas corpus; with the restriction, at first, not to extend to prisoners in jail, unless in custody under authority of the United States, etc. But in 1833, 1842, and 1867 this restriction was modified, and by the last act removed altogether "in all cases where any person may be restrained of his or her liberty, in violation of the Constitution, or of any treaty or law of the United States." 14 Stat. 385. Rev. Stat. § 753. And see Ex parte Parks, 93 U. S. 18, 22, where the reference to 14 Stat. should be p. 385 instead of p. 44. This is legislation enough. A citizen of West Virginia is deprived of his liberty contrary to the Constitution and laws of the United States. The exigency has arisen in which the law applies; and if the party himself is precluded from setting up his wrongful abduction as a defence to an indictment, and perhaps precluded from demanding his discharge on habeas corpus, his State has intervened for his protection, and has sued out the writ. But I think that his own application for the writ is well grounded. He is not in the situation of a criminal who has been abducted from a State which takes no interest in his case. His restoration has been demanded by his State; and habeas corpus may be issued either at his own instance or that of the State.

This court does not hesitate, on the plea of insufficient legislation, to issue the writ of habeas corpus as an appellate remedy wherever a citizen is deprived of his liberty in violation of the Constitution or laws of the United States, and is refused a discharge by other tribunals, and has no other remedy. See Ex parte Royall, 112 U. S. 181; Ex parte Royall, 117 U. S. 241.

I think that the judgment of the Circuit Court should be reversed, and the prisoner restored to his liberty with permission to return to the State of West Virginia. I am authorized to say that MR. JUSTICE HARLAN concurs in this opinion.

Under the statutes of Virginia, which were in force in September, 1837, and equally under the statutes of Ohio, which were in force at that time, a deed by husband and wife conveying land of the wife, was inoperative to pass her title, unless the husband, she having duly acknowledged the deed, signified his assent to the conveyance in her lifetime by an acknowledgment in the form prescribed by law.

EJECTMENT. Judgment for defendant. Plaintiffs sued out this writ of error. The case is stated in the opinion of the court.

Mr. C. B. Matthews for plaintiffs in error.

No

appearance for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

This was an action to recover forty-two undivided one-hundredth parts of a tract of land, in the county of Fayette, State of Ohio. The answer denied that the plaintiffs, or either of them, have any estate, title, or interest in or to this land, or to any part thereof. The defendants, also, pleaded that no cause of action accrued to the plaintiffs or to either of them against him within twenty years prior to the filing of the petition.

The bill of exceptions shows that the plaintiffs in error, after offering in evidence a patent of the United States covering the land in controversy, made proof tending to establish the following facts: The patentee, William Green Munford, died intestate, leaving as his only heirs, Robert Munford, John Munford, Stanhope Munford, William Green Munford, Elizabeth Munford, and Mary Munford. Three of these heirs Stanhope, William Green, and Elizabeth - died early in the

Opinion of the Court.

present century, unmarried, childless, and intestate; the other three inherited the patented lands in equal shares. Margaret Ann Munford, the only heir of Robert Munford, who also died intestate, was born in the year 1800, and in 1819 intermarried with John Sinclair. She died intestate September 13, 1837, having inherited one-third of the property in controversy. Her husband died August 3, 1875. The original plaintiffs are her only heirs, and J. Hairiston Sewall is the grantee of some of the original plaintiffs for whom he was substituted as a party.

This was the case made by the plaintiffs in error who were plaintiffs below.

The defendant, to maintain the issues on his part, offered in evidence a certain deed, purporting to be a conveyance to one Cary S. Jones of the interest of John Sinclair and Margaret Ann Sinclair, his wife, in this land.

That deed is dated September 10, 1837-three days before the death of Mrs. Sinclair-and purports to be signed by the grantors - Sinclair and wife, of Gloucester County, Virginia -and to have been "signed, sealed and delivered in presence of Wm. Robins, Richard S. Jones, and Pet. R. Nelson." tached to it are the following certificates:

"GLOUCESTER COUNTY, to wit:

"We, William Robins and Peyton R. Nelson, justices of the peace in the county aforesaid, in the State of Virginia, do hereby certify that Margaret Ann Sinclair, the wife of John Sinclair, parties to a certain deed bearing date on the 10th of September, 1837, and hereunto annexed, personally appeared before us, in our county aforesaid, and, being examined by us privily and apart from her husband, and having the deed aforesaid fully explained to her, she, the said Margaret Ann Sinclair, acknowledged the same to be her voluntary act and deed, and declared that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it. "Given under our hands and seals this 10th day of September, 1837.