542 HARVARD LAW REVIEW. who are not at the time within the State whose laws have been infringed. To be a fugitive from justice, and therefore, subject to extradition, it must appear by proof or necessary inference that the prisoner was within the State at the time of the commission of the crime with which he is charged. If the papers upon which the governor's warrant is issued tend to show that the case is one coming within this definition, I do not think that the court has any power to try the question on habeas corpus whether the prisoners were, or were not, at the time the offence was com- mitted, within the demanding State. In the case at bar a large amount of proof has been taken tending strongly to show that the relators were not in the State of Massachusetts, but in this State, at the time when the bonds in question were stolen. But all of this is really matter of defence to the charge. Upon the trial of the charge in the State of Massachusetts, the commonwealth must make out its case by proving the commission of the theft in question by the relators ; and the ground upon which they now seek to be discharged in this State is really the defence of an alibi, which should properly be made and proven upon such trial. It never could have been intended by the legislature, nor is it, I think, a matter of constitutional right with the relators, that such a question as this should be tried and determined in such proceedings as these. It has been repeatedly held that the court has no right upon a question of extradition to consider the charge upon its merits, or to undertake, in any way whatsoever, to determine whether it is well founded or not." With the utmost respect, vi^e think the position thus taken radically unsound. Non-presence would of course constitute the defence of an alibi to a prosecution in the Massachusetts courts, but, entirely distinct from this, under Federal and not State, law, in the language of Ex Parte Reggel (jsuprd), each relator was " entitled according to the Act of Congress to insist upon proof that he was within the demanding State at the time he is alleged to have committed the crime charged, and subsequently withdrew from her jurisdiction." The correct view of this phase of the sub- ject is well presented in a convenient little book on Interstate Extradition by John G. Hawley, Esq., of Detroit. The author says : — " It is only in the courts of the State from which he is sought to be extradited that the accused can ever be heard upon this question (whether he is a fugitive). For, as we shall see hereafter, he cannot raise the question of the regularity or legality of his extradition in the State to which he is taken, upon his trial. To say, therefore, that he can- not be heard upon this question before he is removed, is to say that a
