905. The magistrate must return his proceedings to the next court of sessions of the county, which must thereupon inquire into the cause of the arrest and detention of the person charged; and if he be in custody, or the time for his arrest have not elapsed, it may discharge him from detention, or may order his undertaking of bail to be cancelled, or continue his detention for a longer time, or re-admit him to bail, to appear and surrender himself within a time specified in the undertaking.

Taken from 2 R. S., 3d ed. 797, 798, Sec. 43.

CHAPTER II.

FUGITIVES FROM THIS STATE, INTO ANOTHER STATE OR TERRITORY.

SECTION 906. Accounts of persons employed in procuring the surrender of fugitives from this state, to be paid out of the state treasury.

907. No public officer of this state, to receive compensation for procuring demand or surrender of fugitive, or conveying him to, or detaining him in this state.

908. Violation of the last section, a misdemeanor.

This chapter is designed to regulate a very important branch of criminal practice. The power to demand a fugitive from justice, is one of the most delicate acts of sovereign authority, and should only be exercised in cases where the public welfare demands it. The cases in which its exercise is most frequently called for, though falling within the legal definition of public offences, are rather of a private than a public character; and it is well known, that the executive has always been in the habit of scrutinizing them with great jealousy. The Commissioners refer to cases of false pretences, to which, in a former part of this report, they have already alluded, as requiring greater vigilance on the part of the grand jury in their investigation, than is sometimes extended to them; see p. 116, 117; and a higher degree of evidence to sustain them, than that which is now required. See sec. 455, and note, p. 216. In cases of this description, the Commissioners believe that a large portion, if not a majority of the applications, for the exercise of this high prerogative on the

part of the governor, are made, not directly by the public authorities, but by the private party on whose complaint the prosecution is instituted. They are informed, moreover, that it has been the practice of those who have filled the executive chair, in some, if not in all instances, of prosecutions for this offence, to require that the party, on whose application the requisition is granted, bear the expense of its execution. This practice has no doubt proceeded upon the principle, that these prosecutions are so far of a private character, as to justify the executive in imposing this condition, with a view to save the public treasury from an unnecessary burden.

Whatever may be the reason for it, the Commissioners are constrained to believe that it should not exist. Its tendency is, to convert the officer with whom the requisition is intrusted, rather into a private than a public agent; and cases are within the knowledge of the Commissioners, which fully justify them in recommending a system of regulation by which this practice shall be discontinued. It has frequently happened, that the person to whom the requisition has been delivered has gone with it to a remote state, and on the strength of its possession, has negociated for a settlement of the debt, out of the fraudulent contraction of which it arose, and holding it as a rod over the party, has wrung from his fears a compromise of the prosecution. Nor is this to be wondered at. Prosecutions of this nature seldom spring from the mere love of justice, but ordinarily are rather prompted by a spirit of revenge, or what is perhaps more frequently the case, of cupidity. The officer, therefore, who takes the requisition, at the expense of a private party, will naturally act for the promotion of the interests of his employer, rather than from the mere desire to enforce, in his public relation, the process of the law. He will do this, from no motive corrupt in itself perhaps, but because his own interests are equally involved in the success of a compromise, with those of his employer.

The Commissioners do not propose to restrict in any degree, the discretion of the executive or the manner of its exercise, in this or any other criminal case. But, believing as they do, that the highest considerations of policy require the exclusion of every motive of private interest, in the execution of this, more than in that of any other legal process, they propose by this chapter, that where a requisition is granted, it shall be executed, as it is presumed to be issued, for the public good alone, and that the public treasury shall

therefore answer for its execution; and that the officer to whom it is intrusted, shall be prohibited, under the penalty of a misdemeanor, from receiving any compensation, fee or reward, for any act or service in respect to it.

§ 906. When the governor shall demand from the executive authority of a state or territory of the United States, or of a foreign government, the surrender to the authorities of this state, of a fugitive from justice, the accounts of the persons employed by him for that purpose, must be paid out of the state treasury.

§ 907. No compensation, fee, or reward of any kind, can be paid to, or received by a public officer of this state, for a service rendered or expense incurred, in procuring from the governor the demand mentioned in the last section, or the surrender of the fugitive, or for conveying him to this state, or detaining him therein.

§ 908. A violation of the last section is a misde

meanor.

TITLE V.

OF PROCEEDINGS RESPECTING PERSONS HELD TO LABOR OR SERVICE, IN A STATE OR TERRITORY OF THE UNITED STATES, AND ESCAPING INTO THIS STATE.

SECTION 909. Application for warrant, to whom made.

910. Penalty for issuing warrant by any other officer.

911. Parties, how designated.

912. Proof in support of application.

913. Issuing warrant.

914. Warrant, by whom and how executed.

915. Court or magistrate to hear allegations and proofs, and to allow reasonable time to produce further proof.

916. Defendant, in such case, to be committed to sheriff, or discharged on bail.

917. If claim not sustained, defendant to be discharged. Claimant to forfeit one hundred dollars, and to pay costs, expenses and damages. 918. If claim sustained, court or magistrate to grant certificate. Its contents.

919. Delivery of defendant, on granting the certificate.

920. Person claimed as held to labor or service, not to be removed, except as provided in this chapter.

921. Penalty for violation of last section.

922. No judge or other officer of this state, to grant certificate or other process of removal, except as provided in this chapter.

923. Violation of last section, a misdemeanor.

The remark which has been made, p. 269, 270, in respect to the infliction of capital punishment, is equally applicable to the subject embraced in this chapter. The plan of this code embraces the whole system of procedure in special proceedings of a criminal nature, as well as in criminal actions. This subject falls within the former class, and must therefore be embraced in the code, in order to render it complete. In presenting the sections which follow, the Commissioners have not intended to express any opinion of their own, as to whether the existing statutes should be carried as far or farther than they now extend. The policy of this state in respect to this subject, has been settled by the legislature; and with the exception of the alteration of a few immaterial details, which are explained in the notes to the sections themselves, and of the provisions in respect to jury trial, and the writ of homine replegiando, (which, according to the decision of the supreme court of the United States, in Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 539-674, are unconstitutional,) they have pursued the existing statutes.

§ 909. When a person, legally held to labor or service in a state or territory of the United States, escapes into this state, the person entitled to his services, or his agent duly authorised, may apply for a warrant to arrest the fugitive,

1. To the supreme court at a special term:

2. To a judge of the supreme court:

3. To a judge of the superior court, or court of common pleas of the city of New York:

4. To a county judge:

5. To the recorder of a city: or

6. To a city judge.

This section differs in two respects from the corresponding provision of 2 R. S., 3d ed., 653, 654, sec. 6.

First-That provision requires the application to be made to a court or officer authorized to issue writs of habeas corpus, as prescribed by 2 R. S., 3d ed., 660, sec. 37. In accordance with the general plan of the code, the enumeration of the court and officers to whom the application may be made, is deemed more convenient. This enumeration contains the same courts and class of officers, as in the revised statutes, except in conforming them to the constitution and the provisions of the code.

Second: The provision of the revised statutes above referred to, requires the issuing of a habeas corpus. The section under consideration substitutes a warrant, as being in accordance with the other provisions of the code on similar subjects, but invests it with the same authority and incidents as now attach, in this respect, to a habeas corpus.

§ 910. No other officer of this state, than those mentioned in the last section, can issue the warrant: and any other officer who does so, is guilty of a misdemea