Mr. M. W. Seymour, for the plaintiff in error; Messrs. S. B.
Beardsley and N. L. White, contra.
Mr. Justice Swayne stated the facts of the case and delivered the opinion of the court.
This is a writ of error, issued under the 25th section of the Judiciary Act of 1789, to the Supreme Court of Errors of the State of Connecticut.
The attorney of the State for the county of Fairfield presented [83 U.S. 366, 368] to the Superior Court for that county, at the August term, 1866, an information charging Edward McGuire with the crime of
grand larceny. A bench warrant, returnable to the same term, was thereupon issued. McGuire was arrested and held in custody. The court fixed the amount of bail to be given at $8000. On the 24th of September, 1866, McGuire and the other plaintiffs in error entered into a recognizance to the defendant in error in that sum, conditioned that McGuire should appear before the Superior Court, to be held at Danbury, in Fairfield County, on the third Tuesday of October, 1866, to answer to the information before mentioned, and abide the order and judgment of the court. McGuire was thereupon released from custody. He failed to appear according to the condition of the recognizance, and it was duly forfeited on the 16th of October, 1866.
This suit was thereupon instituted in the Superior Court of Fairfield County to recover the amount of the obligation. The facts developed at the trial, and relied upon by the defendants to defeat the action were, according to the practice in that State, found and certified by the court, and became a part of the record. So far as it is necessary to state them, they are as follows:
After the recognizance was entered into McGuire went into the State of New York, where he belonged. While there, upon a requisition from the governor of Maine upon the governor of New York, he was seized
by the legal officers of New York, and was by them forthwith, on the 19th of October, 1866, delivered over to the proper officers of the State of Maine, by whom he was immediately and against his will removed to that State. The requisition charged a burglary alleged to have been committed by McGuire in Maine before the recognizance in question in this case was taken. At the time of the forfeiture of the recognizance McGuire was, and he has been ever since, legally imprisoned in Maine. In June, 1867, he was tried there for the
burglary charged in the requisition, and convicted and sentenced to confinement in the penitentiary for fifteen years, [83 U.S. 366, 369] and was, at the time of the trial of this case in the court below, serving out his time under that sentence. Neither of the sureties knew, when they entered into the recognizance, that there was any charge of crime against McGuire other than the one alleged in the information in Connecticut. If the testimony were admissible, the plaintiff proved that the sum of $8000 was placed in the hands of the sureties to indemnify them against the liability they assumed, and if the testimony were admissible, the sureties proved that the money was not placed in their hands by McGuire nor by any
one in his behalf; and that, so far as the sureties knew, it was done without his knowledge.
The Superior Court gave judgment for the plaintiff. The defendants thereupon removed the case to the Supreme Court of Errors for Fairfield County. That court affirmed the judgment, and the defendants thereupon brought this writ of error.
The fact that the sureties were indemnified was proper to be considered by the Superior Court upon an application for time to produce the body of McGuire. 2 – But it could have no effect upon the rights of the parties in this action, and may therefore be laid out of view.
It is the settled law of this class of cases that the bail will be exonerated where the performance of the condition is rendered impossible by the act of God, the act of the obligee, or the act of the law. 3 – Where the principal dies before the day of performance, the case is within the first category. Where the court before which the principal is bound to appear is abolished without qualification, the case is within the second. If the principal is arrested in the State where the obligation is given and sent out of the State by the
governor, upon the requisition of the governor [83 U.S. 366, 370] of another State, it is within the third. 4 – In such cases the governor acts in his official character, and represents the sovereignty of the State in giving efficacy to the Constitution of the United States and the law of Congress. If he refuse, there is no
means of compulsion. 5 – But if he act, and the fugitive is surrendered, the State whence he is removed can no longer require his appearance before her tribunals, and all obligations which she has taken to secure that result thereupon at once, ipso facto, lose their binding effect. The authorities last referred to proceed upon this principle.
It is equally well settled that if the impossibility be created by
the obligor or a stranger, the rights of the obligee will be in
nowise affected. 6 – And there is ‘a distinction between the act of
the law proper and the act of the obligor, which exposes him to the
control and action of the law.’ 7 – While the former exonerates, the
latter gives no immunity. It is the willing act of the obligor which
creates the obstacle, and the legal effect is the same as of any
other act of his, which puts performance out of his power. This
applies only where the accused has been convicted and sentenced.
Before judgment-non constat-but that he may be innocent.
Where a State court and a court of the United States may each take
jurisdiction, the tribunal which first gets it holds it to the
exclusion of the other, until its duty is fully performed and the
jurisdiction invoked is exhausted: and this rule applies alike in
both civil and criminal cases. 8 – It is indeed a principle of
universal jurisprudence that where jurisdiction has attached to
person or thing, it is-unless there is some provision to the
contrary-exclusive in effect until it has wrought its function.
Where 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 State have been put in force against the
fugitive, and he is imprisoned there, the demands of those laws may
first be satisfied. The duty of obedience then arises, and not
before. In the case of Troutman, cited supra, the accused was
imprisoned in a civil case. It was held that he ought not to be
delivered up until the imprisonment had legally come to an end. It
was said that the Constitution and law refer to fugitives at large,
in relation to whom there is no conflict of jurisdiction.
The law which renders the performance impossible, and therefore
excuses failure, must be a law operative in the State where the
obligation was assumed, and obligatory in its effect upon her
authorities. If, after the instrument is executed, the principal is
imprisoned in another State for the violation of a criminal law of
that State, it will not avail to protect him or his sureties. Such
is now the settled rule. 9 –
When bail is given, the principal is regarded as delivered to the
custody of his sureties. Their dominion is a continuance of the
original imprisonment. Whenever they choose to do so, they may seize
him and deliver him up in their discharge; and if that cannot be
done at once, they may imprison him until it can be done. They may
exercise their rights in person or by agent. They may pursue him
into another State; may arrest him on the Sabbath; and, if
necessary, may break and enter his house for that purpose. The
seizure is not made by virtue of new process. None is needed. It is
likened to the rearrest by the sheriff of an escaping prisoner. 10 –
In 6 Modern 11 it is said: ‘The bail have their principal on a
string, and may pull the string whenever they please, and render him
in their discharge.’ The rights of the bail in civil and criminal
cases are the same. 12 – They may doubtless permit him to go beyond
the limits of the State within which he is to answer, but it is
unwise and imprudent to do so; and if any evil ensue, they must bear
the burden of the consequences, and cannot cast them upon the
obligee. 13 –
In the case of Devine v. The State, 14 the court, speaking of the
principal, say, ‘The sureties had the control of his person; they
were bound at their peril to keep him within their jurisdiction, and
to have his person ready to surrender when demanded. In the case
before us, the failure of the sureties to surrender their principal,
was, in the view of the law, the result of their own negligence or
connivance, in suffering their principal to go beyond the
jurisdiction of the court and from under their control.’ The court
authorities cited are to the same effect.
The plaintiffs in error were not entitled to be exonerated for
several reasons: When the recognizance was forfeited for the
non-appearance of McGuire, the action of the governor of New York,
pursuant to the requisition of the governor of Maine, had spent its
force and had come to an end. McGuire was then held in custody under
the law of Maine to answer to a criminal charge pending there
against him. This, as already stated, cannot avail the plaintiffs in
error. The shortness of the time that intervented between the arrest
in New York and the imprisonment in Maine on the one hand, and the
failure and forfeiture in Connecticut on the other, are entirely
immaterial. Whether the time were longer or shorter-one year or one
day- the legal principle involved is the same, and the legal result
must be the same.
If McGuire had remained in Connecticut he would probably not have
been delivered over to the authorities of Maine, and would not,
therefore, have been disabled to fulfil the condition of his
obligation. If the demand had been made upon the governor of
Connecticut, he might properly have declined to comply until the
criminal justice of his own State had been satisfied. This right, it
is not to be doubted, he would have exercised. Had he failed to do
so, the obligation of the recognizance would have been released. The
plaintiffs in error are in fault for the departure from Connecticut,
and they must take the consequences. But their fault reached
further. Having permitted their principal to go to New York, it was
their duty to be aware of his arrest when it occurred, and to
interpose their claim to his custody. 15
We have shown that when McGuire was arrested in New York the
original imprisonment, under the information in Connecticut, was
continued; that the bail had a right to seize him wherever they
could find him; that the prosecution in Connecticut was still
pending, and that the Superior Court having acquired jurisdiction,
it could neither be arrested nor suspended in invitum by any other
tribunal. Though beyond the jurisdiction of Connecticut, he was
still through his bail in the hands of the law of that State, and
held to answer there for the offence with which he was charged. Had
the facts been made known to the executive of New York by the
sureties at the proper time, it is to be presumed he would have
ordered McGuire to be delivered to them and not to the authorities
of Maine. The result is due, not to the Constitution and law of the
United States, but to their own supineness and neglect. Under the
circumstances they can have no standing in court to maintain this
objection.
The act of the governor of New York, in making the surrender, was
not ‘the act of the law’ within the legal meaning of those terms;
but in the view of the law was the act of McGuire himself. He
violated the law of Maine, and thus put in motion the machinery
provided to bring him within the reach of the punishment denounced
for his offence. But for this that machinery, so far as he was
concerned, would have remained dormant. To hold that the surrender
was the act of the law, in the sense contended for, would be as
illogical as to insist that the blow of an instrument used in the
commission of a crime of violence, is the act of the instrument and
not of the criminal. It is true that in one case there would be a
will and purpose as to the result in question, which would be
wanting in the other, but there would be in both, the relation of
cause and effect, and that is sufficient for the purposes of the
analogy. The principal in the case before us, cannot be allowed to
avail himself of an impossibility of performance thus created; and
what will not avail him cannot avail his sureties. His contract is
identical with theirs. They undertook for him what he undertook for
himself.
The act of the governor of New York was the act of a stranger.
It is true that the constitutional provision and the law of
Congress, under which the arrest and delivery were made, are
obligatory upon every State and a part of the law of every State.
But the duty enjoined is several and not joint; and every governor
acts separately and independently for himself. There can be no joint
demand and no joint neglect or refusal. In the event of refusal, the
State making the demand must submit. There is no alternative. In the
case of McGuire no impediment appeared to the governor of New York,
and he properly yielded obedience. The governor of Connecticut, if
applied to, might have rightfully postponed compliance. If advised
in season he might have intervened and by a requisition have
asserted the claim of Connecticut. It would then have been for the
governor of New York to decide between the conflicting demands.
Whatever the decision-if the proceedings were regular-it would have
been conclusive. There could have been no review and no inquiry
going behind it. 16 We cannot hold that Connecticut was in any sense
a party or consenting to what was done in New York. It follows that
if McGuire had been held in custody in New York, at the time fixed
for his appearance in Connecticut, it would not in anywise have
affected the obligation of the recognizance.
A different doctrine would be fraught with mischief. It could hardly
fail, by fraud and connivance, to lead frequently to abuses,
involving the escape of offenders of a high grade, with pecuniary
immunity to themselves and their sureties. Every violation of the
criminal laws of a State is within the meaning of the Constitution,
and may be made the foundation of a requisition. 17 Hence the
facility of escape if this instrumentality could be used to effect
that object. The rule we have announced guards against such results.
The supposed analogy between a surrender under a treaty providing
for extradition and the surrender here in question has been
earnestly pressed upon our attention. There, the act is done by the
authorities of the nation-in behalf of the nation-pursuant to a
National obligation. That obligation rests alike upon the people of
all the States. A National exigency might require prompt affirmative
action. In making the order of surrender, all the States, through
their constituted agent, the General Government, are represented and
concur, and it may well be said to be the act of each and all of
them. Not so here.
The judgment of the Supreme Court of Errors of Connecticut is
AFFIRMED.
Mr. Justice DAVIS and Mr. Justice HUNT did not sit.
Mr. Justice Field (with whom concurred Mr. Justice Clifford and Mr.
Justice Miller), dissenting.
I am unable to concur in the judgment rendered by the majority of
the court in this case. I agree with them that sureties on a
recognizance can only be discharged from liability by the
performance of the condition stipulated, unless that become
impossible by the act of God, or of the law, or of the obligee. But
I differ from them in the application of their term act of the law.
If I understand correctly their opinion they limit the term to a
proceeding authorized by a law enacted by the State where the
recognizance was executed. I am of opinion that the term will also
embrace a proceeding authorized by any law of the United States. A
proceeding sanctioned by such law, which renders the performance of
the condition of the recognizance impossible, ought, in my judgment,
upon plain principles of justice and according to the authorities,
to release the sureties.
The Constitution of the United States declares its own supremacy,
and that of the laws made in pursuance of it, and of treaties
contracted under the authority of the United States. As the supreme
law of the land they are, of course, to be enforced and obeyed,
however much they may interfere with the law or constitution of any
State.
Now 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.’ 18 The
act of Congress of February 12th, 1793, was passed to carry into
effect this provision, and has made it the duty of the executive of
the State or Territory to which a person charged with one of the
crimes mentioned has fled, upon proper demand to cause the fugitive
to be arrested and delivered up. In pursuance of this act the
principal on the recognizance in suit was arrested by order of the
governor of New York, and delivered up as a fugitive from justice to
the officers of the State of Maine. By them he was taken to that
State, and having been previously indicted for a felony, was there
tried, convicted, and sentenced to the penitentiary for fifteen
years. Thus in the execution of a valid law of the United States,
passed to carry out an express constitutional provision, the
prisoner was taken against his will from the custody of his bail,
and placed in the custody of officers of another State, from whom
the bail could not recover him to make a surrender pursuant to the
condition of their recognizance. It is no answer to say that the
prisoner, when called in Connecticut, was detained by the State of
Maine, and not by any proceeding or order under an act of Congress,
because that proceeding or order had been executed, and was no
longer operative. He was taken out of the custody and placed beyond
the reach of his bail by a proceeding under the act, and therefore
to such proceeding their inability to surrender him must be
attributed.
The case is not essentially different from a surrender of a fugitive
from justice under an extradition treaty. The United States have
such treaties with several European nations, and whatever may have
been the extravagant doctrines respecting the rights of the States,
at one time in some parts of the country, it will not now be
pretended that with the enforcement of such treaties any State, by
her laws or judicial proceedings, can interfere. If the fugitive,
after his arrival in this country, should commit a crime and be held
to bail, it would be a question with the authorities of the General
Government whether he should be surrendered under the treaty; but if
surrendered it would be manifestly unjust to the bail to hold them
to the performance of the conditions of the recognizance.
It seems to me that it would be a more just rule to hold, that
whenever sureties on a recognizance are rendered unable to surrender
their principal, because he has been taken from their custody
without their assent, in the regular execution of a law or treaty of
the United States, their inability thus created should constitute
for their default a good and sufficient excuse. The execution of the
laws and treaties of the United States should never be allowed in
the courts of the United States to work oppression to any one.