The Constitution provides that "a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime."1

In the case of Kentucky v. Dennison,2 decided by the Supreme Court in 1860, the respective powers and duties of the State and Federal Governments in respect to the extradition of criminals, came up for adjudication. Congress had passed a law declaring that, upon request from the State from which the fugitive has escaped, "it shall be the duty of the executive authority of the State " to cause the fugitive to be seized and delivered to the agent of the demanding State. Dennison, the governor of Ohio, refused the request of the Commonwealth of Kentucky to surrender a fugitive from her borders. Thereupon a mandamus was asked from the federal court to compel him to do so. This writ the Supreme Court in a unanimous opinion refused to issue, the argument of Taney, who prepared the opinion of the court, being as follows: The duty of providing by law the regulations necessary for carrying into effect this right to extradition manifestly belongs to Congress. "For," said Taney, "if it was left to the States, each might require different proof to authenticate the judicial proceedings upon which the demand was founded." Furthermore, Taney declared, the duty that is laid upon the governors of States by the Constitution and by the laws that Congress had passed regulating the subject is a mere ministerial duty, and, therefore, one the performance of which may ordinarily be compelled by the courts. Continuing be held that the clause in question by the use of the words "treason, felony or other crime," properly included every act forbidden and made punishable by a State, and did not leave to the governor of a State to which a fugitive from justice might flee, the right to refuse to surrender him upon the ground that the act in question was not one made punishable by the law of the State of which he was the chief executive. "The argument on behalf of the governor of Ohio," said Taney, "which insists upon excluding from this clause new offenses created by a statute of the State and growing out of its local institutions, and which are not admitted to be offenses in the State where the fugitive is found, nor so regarded by the general usage of civilized nations, would render the clause useless for any practical purpose. For where can the line of division be drawn with anything like certainty? Who is to mark it? The governor of the demanding State would probably draw one line, and the governor of the other State another. And if they differed, who is to decide between them? Under such a vague and indefinite construction, the article would not be a bond of peace and union, but a constant source of controversy and irritating discussion. It would have been far better to omit it altogether, and to have left it to the comity of the States, and their own sense of their respective interests, than to have inserted it as conferring a right and yet defining that right so loosely as to make it a never failing subject of dispute and ill will." Also, he declared, it is certain that the words "it shall be the duty " when employed in the ordinary acts of legislation, imply an assertion of the right to command and coerce obedience. "But," said Taney, "looking to the subject-matter of this law, and the relations which the United States and the several States bear to each other, the court is of opinion the words ' it shall be the duty' were not used as mandatory and compulsory, but as declaratory of the moral duty which this command created, when Congress had provided the mode of carrying it into execution. 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, 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. . . . It is true that Congress may. authorize a particular state officer to perform a particular duty; but if he declines to do so, it does not follow that he may be coerced or punished for his refusal."

1 Art. IV, Sec. 2, Cl. 2.

2 24 How. 66; 16 L. ed. 717.

There have since been a number of. occasions in which a governor of one State has refused the extradition of a person found within its borders and who had admittedly come from the State which asked for his return. A notable instance was the refusal of the governor of Indiana to permit the extradition of ex-Governor Taylor of Kentucky who was indicted in the latter State as having been a party to the murder of Governor Goebel.