(111 U. S. 624), that the governor of a State in the execution of the duty of surrendering fugitives imposed by the Constitution and the statute of Congress does not act as a United States officer and that a writ of habeas corpus may be issued by the State courts to test the validity of an arrest under his warrant. In Roberts v. Reilly (supra) it was said: "How far his (the governor's) decision may be reviewed judicially in proceedings in habeas corpus, or whether it is not conclusive, are questions not settled by harmonious judicial decisions, nor by any authoritative judgment of this court." In Cook v. Hart (supra), it was held: "We have no doubt that the governor upon whom the demand is made must determine for himself, in the first instance at least, whether the party charged is in fact a fugitive from justice, but whether his decision thereon be final is a question proper to be determined by the courts of that State." The constitution and laws of the State of New York, therefore, control the decision of the question we are now considering. While doubtless to a certain extent the action of the governor is executive or ministerial, it is not so in the broad sense in which the general functions of the office are conferred upon him by our constitution. In Matter of Guden (171 N. Y. 529), we held that the power given to the governor to remove a sheriff upon charges and after a hearing was executive and the exercise of that power not subject to review by the courts. But the question here is of an entirely different character. It involves the liberty of the citizen. Speaking of the division of powers among the three great branches of the government, PARKER, Ch. J., in the Guden case, said: "There resides in the people of this and every State an absolute power to prescribe rules of action, through legislation, to enforce rules of action and to transact generally the affairs of government, through executive acts, and to determine controversies between, enforce rights belonging to, and redress wrongs done to, citizens of the State, through the courts." The liability of the citizen to arrest and detention,

and the grounds therefor, therefore, necessarily present a judicial question, though the arrest and detention are effected by an executive or ministerial officer. The act of Congress provides that a copy of the indictment or the affidavit before a magistrate shall be proof of the charge of crime against any person whose extradition is sought, but it does not prescribe what shall be evidence that he is a fugitive from justice. The fact that he is a fugitive is, therefore, a matter of proof. While the warrant of the governor is presumptive evidence of the fact, there is no reason on principle why it should be conclusive. It was said by Judge JENKINS in Matter of Cook (supra), referring to the case of Roberts v. Reilly: "That decision by its very terms implies that the action of the governor is only presumptively regular, and can be reviewed by the courts. Surely it cannot be claimed that such action is conclusive upon personal right, and may not be inquired of by judicial tribunals. Surely it cannot be that the right to personal liberty hangs upon so slender a thread as the arbitrary will of the authorities of the demanding and surrendering States. 'No person shall be deprived of life, liberty or property without due process of law.' That is the fundamental law of the land, coming to us from Magna Charta. It is not due process of law which condemns without hearing, which convicts without trial. It is essential to compliance with such executive demand that the person whose surrender is demanded should be adjudged a fugitive from the justice of the demanding State. The decision of the executive is not conclusive of that fact." The writ of habeas corpus is in this State available to every person imprisoned or deprived of his liberty, unless he is restrained under the authority of the Federal government, or unless he is committed by virtue of a final judgment or decree of a competent tribunal of jurisdiction, or the final order of such a tribunal punishing him for contempt. The warrant of the governor is not a final judgment nor a decree, and even were it such it would be the

duty of the court to see whether the jurisdictional facts exist which are necessary to authorize the action of the governor. The provision of section 827 of the Code of Criminal Procedure, directing that any person arrested on the governor's mandate shall be brought before a judge of a court of record and informed of his right to a writ of habeas corpus to inquire into his identity with the person named in the warrant does not assume to limit the inquiry on writ of habeas corpus to the question of identity. It was enacted for the benefit of any person arrested under such a warrant and solely as an additional safeguard against illegal removal from the State. As was held in People ex rel. Tweed v. Liscomb (60 N. Y. 560), "This writ cannot be abrogated, or its efficiency curtailed, by legislative action. The remedy against illegal imprisonment by this writ, as it was known and used at common law, is placed beyond the pale of legislative discretion, except that it may be suspended when public safety re quires, in either of the two emergencies named in the constitution." If, therefore, on the return to the writ it is clearly shown that the relator is not a fugitive from justice and there is no evidence from which a contrary view can be entertained, which is the fact in this case, as appears by the stipulation and concession of the parties, there is no reason why greater efficacy should be given to the warrant of extradition than to the warrant of any other magistrate by which a citizen is imprisoned or deprived of his liberty. In People ex rel. Lawrence v. Brady (56 N. Y. 182) this court discharged the relator, who was held under a warrant of extradition issued by the governor of the State, on the ground that the affidavit on which the surrender was asked did not state a crime. In People ex rel. Draper v. Pinkerton (77 N. Y. 245) the only question decided was whether the warrant of the governor recited the facts necessary to confer authority under the constitution and laws of the United States and was sufficient justification for holding the prisoner to be brought up on habeas corpus without producing

the papers or evidence upon which the governor acted. It was held that the recitals were to be taken as prima facie true, no proof to the contrary having been introduced by the prisoner. In People ex rel. Jourdan v. Donohue (81 N. Y. 438) again the only question was the sufficiency of the executive warrant on its face. Referring to criticisms that had been made on the decision in the Lawrence case the court said: "And hence we have held that where the preliminary papers upon which a warrant of extradition has been granted are produced, and are before us, it is our right and our duty to examine them, and judge and determine, when our process is invoked, whether they are sufficient, under the law, to justify the warrant of extradition. Our ruling in this respect has not escaped criticism; but an opposite conclusion, which would make the determination of the executive final, even though the papers produced clearly showed that the essential preliminaries of the law were unfulfilled, does not yet commend itself to our judgment." In all these cases the question related to the sufficiency of the charge against the prisoner, not to his being a fugitive. But if the courts can review the action of the governor on one prerequisite for extradition, it is difficult to see why they cannot equally review his action on the other. The great weight of authority in other States is in favor of such a review. It was so held in the cases of Jones v. Leonard (supra); Wilcox v. Nolze (supra); Hartman v. Aveline (supra), and Matter of Mohr (supra). In the Wilcox case it is said: "Whether or not the accused committed the acts complained of while actually present in the demanding State is jurisdictional, and it is clearly competent, in such case, to show by parol evidence a defect in the executive power, however regular the extradition papers may be in matter of form." In the Jones case it is said: "The governor of this State is not clothed with judicial powers, and there is no provision of the constitution or laws of the United States or of this State which provides that his determination is final and conclusive in

the case of the extradition of the citizen. In the absence of such a provision we hold that the decision of the governor only makes a prima facie case; that it is competent for the courts in a proceeding of this character to inquire into the correctness of his decision, and discharge the prisoner." In the Mohr case the learned court said: "We are of opinion that the probate judge did not err in discharging the petitioner, and that it was competent for him to hear oral evidence in order to establish the fact that the petitioner was not a fugitive from justice. Any other conclusion than this would establish a doctrine very dangerous to the liberty of the citizen. It would greatly impair the efficacy of the proceeding of habeas corpus, which has been often characterized as the great writ of liberty, and may be regarded, not less than the right of trial by jury, as one of the chief corner stones in the structure of our judiciary system. It might justly be considered as alarming to announce that a writ which has so frequently been used for centuries past to prevent the encroachment of kings upon popular liberty is inadequate for the just purposes for which it has been invoked in this case."

There is little to be added to what has been so well said by the jurists of other States. The further suggestion, however, may be made, that no law gives a person sought to be extradited the right to a hearing before the governor or to submit evidence in his behalf. Whatever in these respects may be accorded by the governor to the accused is a matter of favor, not of right. Therefore, unless he may review his extradition on habeas corpus, a citizen, on the fiat of an executive officer, without a hearing, may be transported a prisoner to the utmost confines of the country. It has been held by the Supreme Court of the United States that in the case of foreign extradition there must be some competent evidence before the magistrate to authorize the surrender of the accused. (Ornelas v. Ruiz, 161 N. Y. 502.) But if the orders made below are upheld, in the case of interstate extradition, a citizen may be