
    The State vs. Allen.
    The Governor of the State of Tennessee, on the demand of the Governor o Alabama, surrendered the body of Allen, who had been previously arrested for murder in the State of Tennessee and bound over, and who was on bail at the time of the demand made: Held,
    1. That it was not the imperative duty of the Governor of the State of Tennessee to have surrendered him until he was legally discharged from the operation of the laws of Tennessee.
    2. That having, however, delivered him over to the constituted authorities of Alabama, such act discharged the bail from his recognizance.
    E. S. Hall, a justice of the peace for Davidson county, issued a State’s warrant on the 15th day of December, 1838, against Jesse J. Allen, for the murder of John Cooper, in the county of Cannon, on the 30th day of January, 1838. Allen was arrested in Davidson county by a constable, and confined in the jail of said county on the 15th of the same month. Afterwards Ralph Martin, and W. H. Allen, the defendant in this case, entered into a recognizance before Hall, in the sum of two thousand dollars, for the appearance of Jesse J. Allen, before the circuit court of Cannon county, on the 2d Monday in January, 1839, to answer the State, &c. On the 19th January, 1839, Jesse J. Allen failing to appear, the recognizance was forfeited and judgment nisi was taken against the bail, and scire facias issued. On the 15th of April this process was served upon Martin; on the 23d on W. H. Allen.
    At the May term, 1839, the cause was continued upon the affidavit of Allen, with leave given till the succeeding term for the defendant to plead or demur to the scire facias. At the May term, a motion was made to set aside the forfeiture, and the cause continued by consent of parties.
    It does not appear upon what grounds this motion was made, as none are set forth in the record, nor does it appear that the court ever acted upon it.
    The defendant Allen filed a plea. At what term this plea was filed, does not appear. He alledges in this plea, that Hall, a justice of the peace for Davidson county, committed Jesse J. Allen to the common jail of Davidson county, on a charge of having murdered JV. Steele on the 30th of March, 1838, in the county of Marshall, in the State of Alabama, there to remain till demanded by the constituted authorities of Alabama, or discharged by due course of law; that he was demanded by the Governor of Alabama; that on the Ilth of January, 1839, he was ordered to be delivered over to the agent of the Governor of Alabama, by the Governor of the State of Tennessee, and that said Allen being, on the 14th day of January, 1839, still in jail, was on that day delivered over to the agent aforesaid, and that on the 19th day of January, the day on which the forfeiture was taken, the said Jesse J. Allen was confined in the common jail of Franklin county, Alabama, so that he could not be delivered, and that he was still in jail.
    To this plea there was a demurrer. The demurrer was overruled, and the defendant discharged. Appeal in error by the State to this court.
    
      
      Attorney General, for the State.
    The judgment of the circuit court, overruling the demurrer, was erroneous.
    1. The murder in the State of Tennessee was perpetrated before that in Alabama. The prisoner was first arrested in this State. He was recognised to appear in Cannon county, according to law, before the demand was made by the Governor of the State of Alabama. Pie had incui’red the responsibility to the laws, and the judiciary department of the government had appropriated the custody of his body. He had been imprisoned in the common jail, and in the contemplation of law was still imprisoned by his bail. By: what authority had the Executive the right to violate the right oil the bail to the custody of the body of the prisoner ? By what au-; thority had he the power to annul a judicial order, open the door^ of the prison, and defeat the previously attached jurisdiction of11 this State ?
    The court below, probably acted upon the idea that the Governor was bound to disregard the laws of the State, as rendered inoperative in this case by the 2nd section of the 4th article of the constitution of the United States, in the following words: “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.” This clause of the constitution of the United States should, it is true, be sacredly observed, as it is one of the reciprocal obligations entered into by them for their mutual peace and harmony. But upon what grounds of reason can it be contended, that, where a crime is committed in one of the States by the violation of a law made in conformity with the constitution of the State and of the United States, and the individual committing such crime has been secured according to law, to answer for such offence, and whilst in the custody of the law, incurs a responsibility to the laws of a sister State, the laws of the first State are superseded, and rendered null and void, to give effect to the law of the sister State? There is not a shadow of reason to sustain such a construction of the constitution of the United States. The home jurisdiction had attached before the responsibility to the foreign jurisdiction had been incurred. Can it be contended, that the delay in the delivery of the murderer, till the home jurisdiction had performed its office, either by the discharge of him or by the conviction and execution of him, would have been a denial of the demand of the Governor of Alabama? By no means. If he had been executed, then the utmost object of the laws of Alabama would have been accomplished. If he had been acquitted, before any final release from the operation of the laws here, he could have been surrendered to the authorities of Alabama. Thus the laws of both States’ would have been carried into effect, and the reciprocal obligations of the States, under the federal constitution, fully and in.good faith, complied with. By pursuing the opposite course, a very different state of things results. The constitution provides for the delivery off fugitives from justice. Here the laws of this State are disregarded and defeated, and the prisoner transmitted by the executive authority to the State of Alabama. Under such circumstances, can he be regarded as a fugitive from the criminal .justice of Tennessee? He could not. And the Governor of Alabama would have no authority under the constitution to send the prisoner back to Tennessee for' trial, in the event of his acquittal, or on the termination of his'punishment in Alabama.
    ‘The constitution of the United States did not, therefore, under the circumstances of the case, authoiise the Governor of this State to disregard the laws of Tennessee. This act was, therefore, illegal and void, and .of course furnishes no la wfidexcuse-to the bail for the non-surrender of the prisoner. If the Governor had no legal authority to seize the person of the prisoner in violation of the rights of the bail, then his acts could no more.be pleaded in bar of the recognizance, than the acts of a lawless band, who had seized the prisoner, and carried him off with a view to defeat the criminal justice of the State.
    2. If, however, the act of the executive be regarded as legaf and valid, it by no means follows as1 a matter of course, that this matter furnished a good plea in absolute discharge of the recognizance. There is no stipulation in the -face of the recognizance, that the bail should be discharged upon the contingency which has happened, and the party not having provided for it in his recognizance, it is not good in bar. Matthews vs. Cook, 13 Wend. It would unquestionably (in the event the act be legal) furnish matter upon which to set aside the forfeiture and stay the proceedings against the bail on the recognizance, till the body of the criminal could be procured by the bail, or good cause why it was not done, shown on a motion for a discharge of the bail under the act of 1811, ch. 2. In this case the murderer may now be in Tennessee, and within the control of the bail. The imprisonment in Alabama may have been temporary. All the authorities sustain the position, that no temporary suspension of the right of the bail to the custody of the body furnishes matter in absolute discharge of the recognizance ; and this is so, though the suspension of his right of control has been created by the authority of the State. An imprisonment for a term of years in a State prison, has not- been regarded as a discharge of the recognizance, though the proceedings were stayed till the expiration of the term. See Lojlin vs. Fowler, ISth Johnson, 335: Bigelow vs. Johnson, 16th Mass.: Parker vs. Chandler, 8 Mass.: The People vs. Common Pleas, 2 Wend. 263. The criminal must, in the language of the authorities, be placed “irrecoverably beyond the control of the bail.”
    The fact that t]je criminal was transmitted beyond the limits of the State, cannot alter the rights of the parties. The bail had as much power over him in Alabama as they had in Tennessee. This is on the ground, that the relation of bail and prisoner is founded on contract, is enforced by the .comity of States and Nations, and is not based upon jurisdiction. Nichol vs. Ingersoll, 7 John. 154: Commonwealth vs. B., 8 Pickering: Petersdorff on B. 220, 290.
    3. The rules which regulate the discharge of bail and their responsibilities, are the same in civil and criminal cases. Petersdorff on Bail, 302, 216, et seq.
    
    4. It may be urged that the State is a party to this recognizance; that the Governor represents the State in reference to its executive powers, and that representing the State, he has discharged the recognizance by asserting the claim of the State to the body of the prisoner, in opposition to the rights of the bail, and removing the prisoner beyond the limits of the State, contrary to his consent.
    To this it is answered, that, the executive action was based upon the conduct of principal in the recognizance, that the necessity of executive action (if it was necessary at all at the time and under the circumstances of this case) was created by the misconduct and crime of the principal in the recognizance. If this be regarded as good matter in bar of the recognizance, then defendant is permitted to take advantage of the. wrong and crime of the principal in the recognizance, to defeat their own responsibility. The recognition of such a principle, enables the principal in the recognizance to discharge his bail in one State by the commission of crime in another, and thus to defeat the attached jurisdiction of one State by transferring himself through the medium of executive action to another.
    It is, therefore, contended on the part of the State, that the action of the executive, whether legal or illegal, does not furnish matter in absolute bar of the recognizance. It undoubtedly furnished matter upon which the court would be authorised to set aside the forfeiture and stay the proceedings; and if, after fair and reasonable exertions by the bail to procure the body of the murderer, and a failure so to do, the case would present a proper one for the exercise of the power conferred upon the court by the provisions of the act of 1811, ch. 2, sec. 1: N. & C. 338.
    
      Ewing and Ready, for the defendant.
   Turkey, J.

delivered the opinion of the court.

Defendant became bail for Jesse Allen’s appearance at the January term, 1839, of the circuit court of Cannon county. Before the term arrived, the Governor of the State of Alabama demanded the body of Allen from the Governor of the State of Tennessee, as a refugee from justice, and he was delivered up by the order of the Governor of the State of Tennessee, to the authorities of Alabama, in pursuance of this demand. The consequence was, he did not appear at the January term of the circuit court of Cannon county, arid judgment was taken against the bail, upon which a scire facias was issued, to which he pleads in bar the facts above stated, and that Allen was, at the term appointed for his appearance in court in Caúnon county, and still is in prison in the State of Alabama upon a charge of murder, whereby he has been prevented from bringing him into court in discharge of the undertaking. To this plea there is demurrer, which was overruled by the court below, and we think correctly.

By the constitution and laws of the United States, the Governor of -Alabama had the right to demand Allen, and the Governor of the State of Tennessee had the power to give him up. Indeed it would have been his imperative duty to have done so, had he not rendered himself, by the commission of crime, amenable to our criminal laws. This would have justified the Governor of Tennessee in detaining him till he had made satisfaction therefor; but he chose not to do so, but to surrender him. This we think he might» legally do, and that the act was not one of supererogation. Then,'; how stands the case? > The defendant has become bound to the State of Tennessee, for the appearance of Allen. The State of Tennessee, by her executive, takes possession of his'body and delivers him to a foreign power, where he has ever since been detained for crime committed against that power. The State of Tennessee takes judgment against the defendant', because Allen did not appear, (a thing that had been rendered impossible by the State itself,) and is seeking to make him pay the money, What mop-strous injustice!

This case is much stronger than those referred to in argument. Those were cases of bail in civil suits, where the bail asked to be exonerated, in consequence of some act of the Government, by which they had lost the custody of the person for whose appearance they were bound. They were exonerated or not Recording to the circumstances of the cases s but this is a case of the State of Tennessee seeking to charge bail for not doing what it by its own act has prevented.

jThe judgment of the circijit court will be affirmed,  