In 1840 the Supreme Court was called upon to pass upon the question whether it lies within the constitutional power of the individual States of the Union to surrender fugitives from justice to a foreign government.3 This point the court found it so difficult to decide that, after holding it under advisement for a long time, it divided equally and was, therefore, unable to render an opinion as the opinion of the court, though, according to its practice in such cases, it affirmed the decision of the court below. Taney in his individual opinion took the ground that the surrender of fugitives from justice is a matter that properly falls within the general field of international relations, and that the control of this field being exclusively vested in the Federal Government, the States are absolutely excluded therefrom, and, therefore, cannot, constitutionally, exercise the right of extraditing to foreign countries fugitives from them to their own territories. "The power in question," he declared, "from its nature, cannot be a concurrent one, to be exercised both by the States and the General Government. It must belong, exclusively, to the one or the other." With Taney agreed Story, McLean, and Wayne. Thompson, Barber and Catron, however, in their opinions, took the view, that the action of the governor of Vermont was not subject to examination upon the part of the federal court, because there then existed no treaty between the United States and the country to which the prisoner was to be extradited, which the governor's action could be said to violate. Baldwin in a separate opinion rained the power of the State upon the ground that it was a legitimate exercise of its police power to obtain riddance of an undesirable inhabitant.

3 Holmes t. Jennison, 14 Pet. 540; 10 L. ed. 579.

It would seem that the law upon this point remained in this unsettled state until 1886 when, in the case of United States v. Rauscher4 the Supreme Court declared, without dissent, that "there can be little doubt of the soundness of the opinion of Chief Justice Taney, that the power exercised by the governor of Vermont is a part of the foreign intercourse of this country which lias undoubtedly been conferred upon the Federal Government; and that it is clearly included in the treaty-making power and the corresponding power of appointing and receiving ambassadors and other public ministers. There is no necessity for the States to enter upon the relations with foreign nations which are necessarily implied in the extradition of fugitives from justice found within the limits of the State, as there is none why they should in their own name make demand upon foreign nations for the surrender of such fugitives. At this time of day, and after the repeated examinations which have been made by this court into the powers of the Federal Government to deal with all such international questions exclusively, it can hardly be admitted that, even in the absence of treaties or acts of Congress on the subject, the extradition of a fugitive from justice can become the subject of negotiations between a State of this Union and a foreign government."

4 119 U. S. 407; 7 Sup. C't. Rep. 234; 30 L. ed. 425.

This question may probably be now considered definitely settled, but it is interesting to observe that the declaration settling it was, after all, a pure dictum, the point not being involved in the case in which it was made.

A number of decisions have held that the asylum State may satisfy the demands of its own laws before surrendering a fugitive to the State from which he has fled. "When a demand is properly made by the governor of one State upon the governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter case have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied." 5