FEATURE CLE THE HATFIELDS AND MCCOYS: FROM FILING SUITS TO FIRING SHOTS

CLE Credit: 2.0 Friday, June 21, 2013 1:20 p.m. - 3:35 p.m. Grand Ballroom Room Galt House Hotel Louisville, Kentucky

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A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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Kentucky Bar Association

2 TABLE OF CONTENTS

The Presenters ...... i

The Hatfields & McCoys: From Filing Suits to Firing Shots ...... 1

What in the Sam Hill ...... 15

Timeline ...... 19

Mahon v. Justice ...... 21

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4 THE PRESENTERS

Jacob P. Cline III Cline Law Office 205 North 20th Street Post Office Box 2220 Middlesboro, Kentucky 40965 (606) 248-8001 [email protected]

JACOB P. "PETE" CLINE III is a solo practitioner in Middlesboro and practices in the areas of banking, business associations and personal injury. He also serves as Director of First State Financial, Inc. Mr. Cline received his B.A., magna cum laude, from Eastern Kentucky University and his J.D. from the University of Kentucky College of Law. He is admitted to practice before the United States District Court for the Eastern Districts of Kentucky, Tennessee and Georgia, and the United States Court of Appeals for the Sixth Circuit. Mr. Cline is a member of the Kentucky Bar Association and the Kentucky Justice Association.

Darrell Fetty Studio City, California

DARRELL FETTY is an actor, writer, musician and producer. In 2011 he produced the highly-rated and acclaimed History Channel mini-series, Hatfieds & McCoys. The mini- series was the winner of five Emmys and one Golden Globe, along with numerous other media and film industry nominations and awards. He is a graduate of one of the last one-room schoolhouses in the nation (Balls' Gap, West Virginia) and Marshall University. Mr. Fetty has guest starred in over one hundred roles on episodic television as well as a number of television movies, miniseries and feature films. He has written for television (Simon & Simon and Mickey Spillane's Mike Hammer) and served as writer/producer for various television series including Viper, Pensacola: Wings of Gold, The Sentinel, Silk Stalkings, Hecules: The Legendary Journeys, and Supervising Producer on 18 Wheels of Justice. His feature film production credits include Trouble Bound, Freeway, State Park, Paramedics, and Into the Fire.

i James B. Ratliff Baird and Baird, PSC 841 Corporate Drive, Suite 101 Lexington, Kentucky 40503 (859) 224-7750 [email protected]

JAMES B. RATLIFF is a shareholder in the Lexington firm Baird and Baird, PSC. His practice is concentrated in the areas of bankruptcy, foreclosure and real estate. Mr. Ratliff received his B.B.A, with high distinction, from Eastern Kentucky University and his J.D. from the University of Kentucky College of Law. He is admitted to practice before the United States District and Bankruptcy Courts for the Eastern and Western Districts of Kentucky and Southern District of West Virginia, and the United States Court of Appeals for the Sixth Circuit. Mr. Ratliff is a member of the Kentucky, West Virginia and Tennessee Bar Associations.

Bill Richardson West Virginia University Extension Service [email protected]

BILL RICHARDSON serves as the Extension Agent for Mingo County, West Virginia, focusing on community and economic development. He received a B.S. from the University of Charleston and an M.B.A. from Marshall University. Mr. Richardson has produced two films, Mine Wars and Feud: The Hatfields and McCoys and is recognized as an expert on the Hatfields and McCoys. He has appeared in a number of major media productions, including the History Channel's America's Greatest Feud: The Hatfields and McCoys, How the States Got Their Shapes, and American Pickers.

ii Professor Paul E. Salamanca University of Kentucky College of Law College of Law Building, Room 257 Lexington, Kentucky 40506-0048 (859) 257-1151

PROFESSOR PAUL E. SALAMANCA is the Wyatt, Tarrant & Combs Professor of Law at the University of Kentucky College of Law. He is a graduate of Dartmouth College and Boston College Law School, where he was a note editor for the Boston College Law Review and a member of the Order of the Coif. Professor Salamanca served as a law clerk to Judge David H. Souter of the U.S. Court of Appeals for the First Circuit, and subsequently clerked for Justice Souter on the U.S. Supreme Court. He practiced law with the firm of Debevoise & Plimpton in New York and was a visiting assistant professor of law at Loyola University School of Law before joining the faculty at the University of Kentucky. Professor Salamanca writes in the areas of separation of powers, freedom of speech, freedom of religion, and privacy. He has published articles on these subjects in the University of Cincinnati Law Review, the Missouri Law Review, the Georgia Law Review, and the Kentucky Law Journal, among other places.

Professor Altina Waller University of Connecticut Department of History 10 Depot Road Unit 1010 Willington, Connecticut 06279 [email protected]

ALTINA WALLER is Professor Emerita at the University of Connecticut. She received her B.A., summa cum laude, M.A. and Ph.D. from the University of Massachusetts, Amherst. Professor Waller is the author of numerous books, chapters and articles, including Reverend Beecher and Mrs. Tilton: Sex and Class in Victorian America and Feud: Hatfields, McCoys, and Social Change in Appalachia 1860-1900. She is a member of the American Historical Association, Organization of American Historians, American Studies Association, World History Association, Social Science History Association, Appalachian Studies Association, Southern Historical Association and the New England Historical Association.

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iv THE HATFIELDS & MCCOYS: FROM FILING SUITS TO FIRING SHOTS Lynsey Freeman

"Hatfields and McCoys – their surnames evoke visions of gun-toting vigilantes hell-bent on defending their kinfolk, igniting bitter grudges that would span generations. Yet many people familiar with these names may know little about the faded history of these two families and the legends they inspired." – Kim Gilmore1

I. INTRODUCTION

As it approaches its one hundred and fifty year anniversary, the feud between the Hatfield and McCoy families has become infamous in American history. Along the Tug Fork of the Big Sandy River, the border between Kentucky and West Virginia, many members and supporters of the respective families lost their lives at the end of the nineteenth century. During the feud, one newspaper writer went so far as to call the region "Murderland."2 At the conclusion of the feud there had been around forty-five feud participants and as many as twenty-four of them lost their lives.3 As the tale passed from generation to generation it has become littered with many different versions of what took place along the way. While it has become difficult to distinguish fact from fiction, what certainly holds true is that the events surrounding our most famous family feud continue to affect the region in which they took place as well as our nation as a whole. It has become part of the folklore and identity of the United States of America.

II. FACTS AND FICTION

Unfortunately there is no remedy for the fact that the feud occurred at a time when recording these incidents was not a priority. Most of the accounts about what transpired are tainted by bias and inaccuracies. Even the newspapers reporting the feud produced biased and erroneous articles because many of their sources were participants in the feud. As Lisa Alther, author of Blood Feud: The Hatfields and the McCoys: The Epic Story of Murder and Vengeance, states:

Almost every incident in this feud has several conflicting versions that blame different participants, depending upon whether its source supported the Hatfields or McCoys. But which conveys

1 Kim Gilmore, "Hatfields and McCoys; An American Vendetta," (May 7th 2012) https://www.thehistorychannelclub.com/articles/articletype/articleview/articleid/1571/hatfields-and- mccoys-an-american-vendetta.

2 T. C. Crawford, An American Vendetta: A Story of Barbarism in the United States 2 (Eldean Wellman, 2004).

3 Lisa Alther, Blood Feud The Hatfields and the McCoys: The Epic Story of Murder and Vengeance xv, 28 (Lyons Press, 2012).

1 what really happened? No one can possibly know except the participants themselves, and they are all long dead, the truth buried with them.4

The following presentation of events that occurred throughout the Hatfield and McCoy feud is a collection compiled from authors that devoted their research to discovering the most accurate narrative.5

A. Facts

Perhaps the most logical starting point is with the men that led each respective family. Randolph McCoy, usually called "Randall," "Old Ranel," or "Ranel," was born October 30, 1825, in Pike County, Kentucky. At the age of twenty-four, he married Sarah McCoy, better known as "Sally" or "Aunt Sally," on December 9, 1849. Sally and Ranel settled in Pike County where they had sixteen children.6 Anderson "Devil Anse" Hatfield was born on September 9, 1839. At the start of the Civil War he married Levicy Chafin and they lived in Logan County, West Virginia and raised thirteen children.7 These two men first met during the Civil War where Ranel served in a Confederate militia group called the "Logan Wildcats" (named after Logan County) that was captained by Devil Anse.

The first incident between the families was the murder of Harmon McCoy, Ranel's brother. Harmon had been a Union sympathizer and was treated with hostility by Confederate supporters. One particular supporter, Jim Vance, threatened Harmon's life. Vance was Devil Anse's uncle and was well known for his ruthless and violent nature. After Vance's threat Harmon went into hiding for fear of his life. Not long after, he was shot and most attributed his death to Vance. Harmon left behind a pregnant widow. Some contend that is not where the feud started since Devil Anse later stated the following in an interview: "When the war ended we all went home and were good friends, until 1873 or '74, when a difficulty arose between my cousin, Floyd Hatfield, and Randolph McCoy, who had married sisters, over a sow and pigs."8

Ranel eventually retaliated against the Hatfields for the death of his brother when he sued Devil Anse in April 1866 for stealing a horse from his farm in 1864. Randall and Devil Anse filed several similar suits

4 Alther, supra note 3, at 50.

5 This reconstruction of the feud's events derives from the following works: Otis K. Rice, The Hatfields and the McCoys (The University Press of Kentucky 1982); Altina L. Waller, Feud Hatfields, McCoys, and Social Change in Appalachia, 1860-1900 (The University of North Carolina Press 1988); Rice, supra note 3.

6 Rice, supra note 5, at 4.

7 Alther, supra note 3, at 20.

8 Wheeling Intelligencer, 22 November 1889. (The reporter or Anse made a mistake concerning the date. The trial occurred in 1878.)

2 against each other in the following years. It seemed that "each sought to annoy the other and express his contempt-but peacefully and via existing legal channels."9 The most noted civil case was when Devil Anse sued Perry Cline, Harmon McCoy's widow's brother, in 1872. Devil Anse sued Cline for "cutting, destroying and hauling away valuable timber" and claimed $3000, a surprisingly large amount, in damages.10 The case was eventually settled out of court so there is no record of what happened. The result was that Cline deeded over his entire landholdings of 5,000 acres. It is possible that Devil Anse actually had a valid claim against Cline or that he used terrorism and threats to force the settlement. Either way this suit made Devil Anse one of the richest landowners in the area.

Six years elapsed before the next major incident between the Hatfield and McCoy families. It arose from yet another civil suit that has come to be known as the Hog Trial of 1878. At the time, farmers raised semi-tame razorback hogs and let them roam until it was time to fatten them for slaughter. Each farmer made his individual mark on his hogs' ears for identification. One hog could mean the difference between having enough food to last the winter and starving to death. Livestock also served as a gauge of a subsistence farmer's wealth, so hog theft was a serious accusation.11 In the fall of 1878, Ranel found that one of his sows and piglets were missing. While searching for the hog, Ranel passed the farm where Floyd Hatfield worked as a sharecropper. Ranel believed that one of the hogs that Floyd had was the missing sow. Floyd denied Ranel's allegations and Ranel brought the charge before the justice of the peace for the district that he lived in. The justice of the peace was Preacher Anse Hatfield, Devil Anse's cousin. Preacher Anse was respected and trusted by both families. He assured Ranel that he would organize a hearing about the alleged stolen hog.

On the morning of the hearing, Preacher Anse attempted to gather a fair jury by assembling a jury of six Hatfields and six McCoys. To no surprise, every McCoy witness testified that the hog belonged to Ranel, and every Hatfield witness claimed that it was Floyd's hog. Bill Stanton, who had ties to both families, was among the Hatfield witnesses and testified that he had personally seen Floyd mark the hog. The jury then voted; all voted for their family member except one McCoy juror, who coincidently also had ties to the Hatfield family. He voted against his family in favor of Floyd, and Ranel lost the case. As one of Devil Anse's descendants suggested years later, perhaps the entire feud could have been avoided if

9 Alther, supra note 3, at 36.

10 Waller, supra note 5, at 41 (citing Anderson Hatfield v. Alexander Mounts, Michael Mounts, G. W. Taylor, Perry Cline, Jacob Cline, 1872, file no. 4).

11 Alther, supra note 3, at 44.

3 only Floyd had barbecued that wretched hog and invited everyone to supper.12

After the Hog Trial the Hatfield and McCoy family members quarreled often, eventually leading to the death of Bill Stanton, the key witness for Floyd, on June 18, 1880. He died at the hands of Sam and Paris McCoy, Ranel's nephews. There are many conflicting accounts as to the circumstances that led to Stanton's demise; some say that the boys were acting in self-defense and others say that the boys attacked Stanton.13 When brought for trial for the murder, both boys were acquitted on the grounds of self-defense. Randall was furious that they had been brought to trial in the first place, and oral tradition interprets Devil Anse as the peacemaker during the trial, hoping the acquittal could calm the growing tension between the families.14

A mere month later ignited part of the feud that has often been romanti- cized as an American version of "Romeo and Juliet." In early August, at an Election Day in Kentucky, Johnse Hatfield, Devil Anse's oldest son, fell for one of Ranel's daughters, Roseanna McCoy. Despite a warning from her father, Roseanna spent the day in the woods with Johnse. When they returned to the election grounds, the McCoys were gone and, with Johnse's promise to marry her, Roseanna went to Devil Anse's house where she stayed for a few months. When she went home Roseanna was still single, but not alone; she was pregnant.

Roseanna received a cold welcome home from her father and decided to go and live with her Aunt Betty McCoy. Johnse crept across the river to visit Roseanna, only then learning of her pregnancy. He vowed that he would finally marry her and made plans to meet later to figure out what to do. Ranel heard that Johnse was in the area and sent some of his sons to spy. Ranel's sons, one of whom had been recently deputized, arrested Johnse for carrying a concealed weapon. This was a ridiculous charge since almost all men carried a gun in Tug Fork Valley.15 Roseanna was convinced that her brothers were going to kill Johnse and, though she was many months pregnant, rode across the river to warn the Hatfields. The Hatfields sent a group to rescue Johnse and confronted the McCoy boys on a mountain trail heading to the Pikeville Jail. They took the McCoy's guns, while cursing and mocking them, and freed Johnse. It is also rumored that Devil Anse made the boys get on their knees and pray.16

12 Coleman C. Hatfield and Robert Y. Spence, Tale of the Devil: The Biography of Devil Anse Hatfield 107-09, (Woodland Press, 2007).

13 Alther, supra note 3, at 50.

14 Alther, supra note 3, at 51.

15 Alther, supra note 3, at 56.

16 Rice, supra note 5, at 22.

4 Roseanna became even more disconnected from her family because of the humiliation she caused her brothers in saving Johnse. In spring of 1881, she gave birth to a daughter. Johnse did not come to Roseanna when their daughter was born. In fact, he was busy courting her sixteen year old cousin, Nancy McCoy. Nancy was the daughter of Harmon McCoy, who was allegedly killed by Johnse's great-uncle Jim Vance. Nancy's mother objected, but Johnse and Nancy married anyway on May 14, 1881. The winter after their marriage Johnse and Roseanna's daughter died of measles and pneumonia. The effect that this romance had on the feud has been downplayed, as Alther notes:

Some researchers downplay the significance of the romance between Roseanna McCoy and Johnse Hatfield as a cause for the brutal, bloody feud violence that followed. Coleman C. Hatfield maintains that their blighted romance played little part in the course of the feud – until the tabloids got hold of it at the end and turned it into a hillbilly Romeo and Juliet to titillate their prim Victorian readers in Northern cities.17

Yet another Election Day added fuel to the fire. On August 7, 1882, both families were present and tempers flared over the arrest of Johnse and the humiliation of Ranel's sons by his rescue. The day ended in the brutal attack of Ellison Hatfield, Devil Anse's brother, after he was stabbed and shot by three of Ranel's sons. Ellison was "noted throughout the county as being a peacemaker."18 As with most of the feud incidents, there are two very different accounts of what lead to Ellison's death. Ellison's great-nephew's account says that three of Ranel's sons, Tolbert, Pharmer, and Bud, stabbed Ellison multiple times and that Pharmer then shot him in the back after a mild verbal altercation.19 Truda McCoy, a descendant of John McCoy, an uncle to Ranel, wrote the book The McCoys: Their Story as Told to the Author by Eye Witnesses and Descendants. Her version states that Ellison had been taunting Tolbert McCoy, which led to a fight, and then Tolbert stabbed Ellison in self- defense when Ellison was attempting to snap his neck. Then Bill, not Bud, came to assist Tolbert by also stabbing Ellison. Next, Ellison threw Tolbert off of him and was about to smash a rock into his head when someone threw a gun to Pharmer who had to shoot Ellison to protect his brother.20

17 Alther, supra note 3, at 60.

18 Alther, supra note 3, at 49.

19 Rice, supra note 5, at 24.

20 Alther, supra note 3, at 62, 63 (citing Truda Williams McCoy, The McCoys: Their Story as Told to the Author by Eye Witnesses and Descendants 76 (Pikeville, Ky: Preservation Council Press, 1976).

5 The three boys initially ran into the woods, but came back to face their fate. They were arrested and were being escorted to the Pike County jail when some Hatfield family members stopped the group leading the boys. Wall Hatfield, justice of the peace for Magnolia District of West Virginia and Devil Anse's older brother, convinced the Kentucky constable that the boys should be tried in West Virginia. Others say that Devil Anse organized the group which overtook the constables and took the prisoners over the state line.21 The boys were taken to a schoolhouse to be held. Devil Anse allowed Sally McCoy, the boys' mother, to visit them and promised that he would return the boys to Kentucky alive regardless of what happened to his brother.22 At that time Ellison was still alive after twenty-six stab wounds to his stomach and a gunshot to his back, but he died two days later. Devil Anse then fulfilled his promise to Sarah and took the boys across the river to Kentucky, alive, where they were tied to pawpaw trees and shot fifty times. There are conflicts on what Hatfields were present at the execution and who was involved in the "firing squad."

Ranel McCoy made numerous trips to Pikeville to try and get legal action taken against Devil Anse and the rest of the Hatfields who played a part in the execution of his sons. In September 1882, a grand jury issued indictments for Devil Anse and twenty other Hatfields and Hatfield supporters. However, the Sherriff refused to arrest the Hatfields because they were not in Kentucky.

Small struggles and attacks continued between the families leading up to the Kentucky gubernatorial race in 1887. Perry Cline, now a lawyer and who no doubt had a grudge against Devil Anse since he took all of his land in the civil suit years before, promised the McCoy vote to Simon Bolivar Buckner if he would do what he could to bring the Hatfields to justice. Governor Buckner did just that once elected by posting rewards for the Hatfields based on the five year old indictments. This ensured that bounty hunters from around the country would attempt to round up the Hatfields. The Governor also sent an extradition demand to the West Virginia governor and authorized Pikeville to appoint a special deputy to receive them. Frank Phillips was selected to return the Hatfields to Kentucky. He raided West Virginia and was successful in collecting a few of the men that had charges against them in Kentucky. The West Virginia governor countered this invasion with bounties for the Kentucky men that were illegally taking the Hatfields across the river and filed a suit for a violation of due process for the citizens that were being taken.

The feud reached its peak on New Year's Day 1888 when Devil Anse, Jim Vance, and Cap Hatfield (Devil Anse's son) decided to take matters into their own hands. The Hatfields, as said by Jim Vance, "had become tired of dodging the officers of the law, and wished to be able to sleep at home beside better bed fellows than Winchester rifles, and to occasionally take

21 Waller, supra note 5, at 5.

22 Alther, supra note 3, at 66.

6 off their boots when they went to bed."23 To them it was certain that Ranel McCoy, and members of his family who might present evidence against them at trial if they were forced to go to Pike County, must be eliminated. Before the Hatfield clan headed to the raid of the McCoy family, Anse declared that he was sick and charged Vance as the leader. The Hatfield clan consisted of nine men, including Vance.

When the Hatfield clan arrived at the McCoy home, Vance ordered them to come out and surrender as prisoners of war. The McCoys did not come out and, due to premature firing from a Hatfield member, a shootout ensued between the two families. While part of the Hatfields pelted the home with bullets, Vance and another Hatfield clan member set fire to the house. The McCoy women tried to stop the fire, but Vance said that he would shoot them all if they came outside. The women used what little water they had to try and extinguish the fire, but quickly ran out of supplies and the fire spread. Alifair McCoy, Ranel's daughter, left the house yelling at men and was shot most likely by Cap Hatfield. Grief- stricken, her mother Sally McCoy ran to her daughter's fallen body and was badly beaten by the men. Attempting to save the family, Ranel's son Calvin attempted to distract the men by running to another building on the land and was also shot dead. Calvin's attempt was not in vain since it allowed Ranel to escape from the house and into the woods. The Hatfields knew that they would not be able to catch Ranel and set fire to the McCoy smokehouse where all of the family's stored meat was kept. The Hatfields blamed the half-failed mission on the man who prematurely fired on the house and knew that they would soon have to face the wrath of Ranel McCoy.

Broken and homeless Ranel demanded that the Sheriff take action. The Sheriff again stated that he could not go into West Virginia and get the Hatfields without the proper extradition papers. This incident brought the feud to the media's attention. Local and even national newspapers reported many different versions of the attack on the McCoys.

Frank Phillips, who had been relieved of his special deputy duties, decided to pose as a state agent and enter West Virginia with twenty- seven others to recover the Hatfields and bring them back to Kentucky to answer for their crimes. This invasion led to the death of Vance, multiple shootouts that resulted in deaths, and the capture of men from the Hatfield clan.

The last clash between the Hatfields and the McCoys came on January 19, 1888 in the "Battle of Grapevine Creek." The Pike County clan led by Phillips met thirteen Hatfield supporters who were intent on arresting those responsible for the death of Vance. As with all of the previous feud incidents, conflicting accounts make it impossible to know exactly what happened. It is known that only a young man named Bill Dempsey, who was recently deputized and before that day had no part in the feud, died

23 Rice, supra note 5, at 60.

7 after being shot by Phillips. Bud McCoy, Harmon McCoy's son, was also shot during the fight. This was the last violent incident of the feud.

After a dispute between the governors of Kentucky and West Virginia over what should happen to the kidnapped Hatfield supporters who were being held in Kentucky, the dispute eventually ended in a case before the U.S. Supreme Court, which will be discussed in more detail later in this article. The Court ruled that the captured men would still be tried for the indictments against them regardless of how they entered the state. In September 1889, the Hatfields involved in the raid on Randle McCoy's home were tried for their crimes. All were sentenced to life in prison except for Ellison Mounts. Ellison was the son of Ellison Hatfield and was said to have the mental capacity of an eight year old. He was hanged the following year after being, most likely wrongfully, convicted of the death of Ranel's daughter Alifair. Devil Anse made no attempt to get revenge for the conviction of his family members and this marked the end of the feud.

The most recent development is that in 2003, Reo Hatfield and Bo and Ron McCoy organized a formal truce between the two families. Reo stated that, in the wake of 9/11, Hatfield and McCoy descendants wanted to illustrate that Americans could overcome their differences and band together in the face of adversity.24

B. Fiction

"I don't know when I first heard about the Hatfield-McCoy feud; I can't recall ever not knowing about it. Nor can I remember ever being unaware of the stereotype of the hillbilly that the feud spawned: the dullard with bib overalls, messy beard, slouch hat, and bare feet, rifle in one hand and jug of moonshine in the other." – Lisa Alther

There are many fabrications that have become associated with the feud's history. Some of the most prominent include what started the fighting, what members were involved with the feud, and what was the true motivation that kept the feud going for so long. Research has helped diffuse some of these myths, while some have had more theories added to them.

First, most believe that the Hog Trial started the feud (even Devil Anse himself believed it to be the case)25 but there are many different incidents could have set the feud in motion. As discussed earlier, the murder of Harmon McCoy could have initially caused the tension between the two families. It is also possible the feud did not start until the murder of Ellison Hatfield. Some add that the Civil War contributed to the feud's

24 Alther, supra note 3 (citing Dean H. King, "War and Peace on the Big Sandy River," Granta (Sept. 3, 2011): http://goliath.ecnext.com/coms2/gi_0199-1800438/Hatfield-McCoy-feud-goes- to.html.

25 Wheeling Intelligencer, supra note 8.

8 beginning. Still others believe that it was the romance between Roseanna McCoy and Johnse Hatfield. Regardless of what truly started the feud, all of these incidents added tension between the families.

Next, it is often believed and depicted that only Hatfield and McCoy family members were involved with the feud. This is not the case since many outsiders joined in as supporters. In fact, more than half of each group was unrelated to the feud leaders.26 There were even McCoys that were on the Hatfield side and Hatfields on the McCoy side. This was seen when the McCoy juror voted for Floyd Hatfield during the Hog Trial. There were also six Hatfields who testified against those tried in Kentucky for the murder of the three McCoy boys.27

Perhaps the biggest dispute and source of fabrication is the motivation behind the feud that kept it going for so many years. Most believe that it was because the families were brutal, uneducated people who, perhaps, did not know the "why" themselves. There are many more credible reasons why the families let the feud continue. First, it was just the way it was done at the time. As Alther notes, "the Tug Fork Valley hovered midway between a traditional justice system of self-generated retaliation and a modern one."28 It was not that they were ignorant, it was that they knew that the justice system could only take them so far because it was not developed enough to offer blind justice for them. If they needed something done, the only sure way was to do it themselves. This can be seen in Devil Anse's reaction to the murder of his brother Ellison; he did not kill the boys until his brother passed away. He knew that they would be sentenced to death for what they had done, but believed that he could not trust a Kentucky court to do that so he was forced to dispense justice himself. There are also theories such as lack of churches and schooling (which perpetuate the stereotype believed by many), that the young generation of men that continued the feud in their later years believed they were truly protecting their family, and the possibility that there was a health issue that made some of the participants more aggressive and impulsive.29

Altina Waller offers what may be the most convincing explanation of the feud. She believes that the feud was a reaction to the shift from a rural economy to the introduction of industrialization. Though the participants did not realize it, they were responding to a loss of their "traditional culture and personal autonomy."30 Devil Anse was a champion for the traditional way of life, employing many in town at his timber business, and saw the

26 Waller, supra note 5, at 11.

27 Id.

28 Alther, supra note 3, at 173.

29 Alther, supra note 3, at 185-190.

30 Waller, supra note 5, at 196.

9 invasion of bigger Northern industry as he did the Union during the Civil War. They would attempt to penetrate the region and affect his way of life. Pikeville modernizers supported Ranel because they wanted to end the feud so companies would be attracted to come to the area.

III. MAHON V. JUSTICE

There were many legal conflicts that originated from the famous feud, most of which were locally handled civil suits. But the kidnapping of the Hatfields from West Virginia to Kentucky led to a dispute between the governors of each state that eventually ended in the U.S. Supreme Court. The Court's decision in the case Mahon v. Justice was binding on not just the two feuding families, but also the entire nation. As stated earlier, the Governors from both Kentucky and West Virginia intervened with the extractions of the Hatfields by Phillips. Their involvement led to perhaps the biggest legal issue that arose from these feuding families. When Mahon v. Justice reached the Supreme Court of the United States, precedent was set regarding the right of due process that is still binding today.

Starting in September 1887, the Governor of Kentucky requested that the West Virginia Governor extradite members of the Hatfield clan, including Plyant Mahon, who were alleged to have killed in Kentucky and then fled to West Virginia. In January of 1888, Phillips brought the Hatfield members, including Mahon, into Pike County, Kentucky against their will. After a month (February 1, 1888), the Governor of West Virginia requested Mahon's release. The request was denied by the Kentucky Governor four days later, stating that the questions involved were judicial, not executive ones. Following this denial, the West Virginia Governor filed a petition of habeas corpus on behalf of the citizens of the state, especially Mahon, stating the Kentucky jailer violated Mahon's right to due process of law. The district court denied the application of the Governor of West Virginia, and the Circuit Court of the United States for the District of Kentucky affirmed the denial of the writ. An appeal was then made to the Supreme Court of the United States.

First, the Court explained that although the Constitution and federal laws provided for the extradition of fugitives upon proper proceedings, such provisions did not give an accused any right of asylum unless removed in conformity with such proceedings. At the request of a governor of one state the governor of another state could allow a person charged with a crime to be extradited. Since the permission was never given, the Court believed the question was not "to the validity of the proceeding in West Virginia, but as to the legality of his detention in Kentucky."31 Therefore, the exact issue before the court was:

Whether a person indicted for a felony in one state, forcibly abducted from another state, and brought to the state where he was indicted, by parties acting without warrant or authority of law, is entitled under the [C]onstitiution or laws of the United States to

31 Mahon v. Justice, 127 U.S. 700, 706 (1888).

10 release from detention under the indictment by reason of such forcible and unlawful abduction.32

When looking at this issue, the Court explained that the jurisdiction of the Kentucky court that indicted the accused was not impaired by the unlawful actions of the private citizens who brought the accused before it. The Fourteenth Amendment was not violated because Kentucky did not pass any law that infringed on a person's right of asylum, and Kentucky did not authorize the unlawful abduction. Therefore, the Court held that a writ of habeas corpus was inapplicable because the accused was not being held in custody in violation of the Constitution or federal law.

West Virginia did achieve one small win with the Court. The Court concluded that since the state of West Virginia did not surrender Mahon, his abduction was unlawful, and Phillips and his accomplices could be punished under West Virginia law.33 Ironically, West Virginia then faced the same problem that Kentucky was faced with in apprehending the men since they were not within the state.

Today the Supreme Court's decision seems to have merged into what has come to be known as the Ker-Frisbie doctrine, which states "the power of a court to try a person for a crime is not impaired by the fact that he has been brought within the court's jurisdiction by reason of forcible abduction."34 The Supreme Court in Ker v. Illinois rejected the idea that forcible abduction meant that a person would not have to answer the charges against him when brought to a court that had proper jurisdiction.35 The Court in Mahon used Ker as case precedent to reach their conclusion. The doctrine is also based on Frisbie v. Collins, which is factually similar to Mahon. The defendant in Frisbie was taken from Chicago by Michigan officers for trial in Michigan. The court upheld the court's jurisdiction over the defendant regardless of how he arrived in the state.36 In short, the Ker- Frisbie doctrine, which includes the holding in Mahon v. Justice, continues to operate in full force in denying both national and international "kidnapped" arrestees.37

32 Id.

33 Id.

34 Roberto Iraolaal, "A Primer on Legal Issues Surrounding the Extraterritorial Apprehension of Criminals," 29 Am. J. Crim. L.1 (2001).

35 Ker v. Illinois, 119 U.S. 439 (1886).

36 Frisbie v. Collins, 342 U.S. 519 (1952).

37 Iraolaal, supra note 27, at 5.

11 IV. SOCIAL IMPACT AND MEDIA PORTRAYAL

"We all know of the Hatfields and McCoys, for we have encountered them in comic strips, popular song, movies, and television." -- Altina Waller38

With the amount of violence involved, the colorful characters, hint of romance, and focus of honor and loyalty, it is no surprise that the feud caught the attention of the entertainment world. The portrayal of the feud in media started before the feud had even ended and has continued since that time. The depiction of the feud has varied from illiterate hillbillies hell-bent on bloodshed to close to historically accurate with what is known from the feud's events.

The media portrayal that started before the end of the feud was habitually inaccurate or biased. The authors of these newspaper articles portrayed the families as uneducated, simpleminded people. Some of the adjectives most frequently used in articles about the region were: backward, barbarous, dissolute, idle, primitive, revolting, savage, uncivilized, violent, and wild.39 These descriptions began a stereotype for the entire region. Between the years 1905 and 1928 there were ninety-two silent movies with storylines based on "feuding mountaineers" that perpetuated the categorical description assigned to the Appalachian people.40

The Hatfield and McCoy inspired characters have surfaced frequently throughout the entertainment world. These typecast characters continued to surface in newspaper cartoons such as Snuffy Smith and L'il Abner, then persisted on television shows such as Hee Haw, The Beverly Hillbillies, The Real McCoys, and Petticoat Junction. Even The Waltons and The Andy Griffith Show, which give more sympathetic and relatable versions of the strong "hillbilly" characters, continued the label's existence.41 Several cartoon series, such as Looney Tunes, The Huckleberry Hound Show, The Flintstones, and Scooby-Doo, have also featured plots directly based on the Hatfield and McCoy feud exposing the skewed concept to young generations. The vendetta was even the inspiration for the long-running game show Family Feud.42

The History Channel completed the most recent media depiction of the feud. Simply titled Hatfields and McCoys, the production reintroduced the feud that

38 Waller, supra note 5, at 1.

39 Alther, supra note 3, at 201 (see T. C. Crawford, An American Vendetta: A Story of Barbarism in the United States 52 (Eldean Wellman, 2004); and the newspaper articles at "Newspaper Articles": http://swansonwill.tripod.com/newspaper.htm).

40 Alther, supra note 3, at 201, (citing J.W. Williamson, Southern Mountaineers in Silent Films (Jefferson, NC: McFarland and Co. Inc., 1994), 301.

41 Alther, supra note 3, at xi.

42 Alther, surpa note 3, at 234.

12 generated so many media spinoffs throughout history. The six-hour, three part miniseries was composed of an all-star cast, including the two lead men of the vendetta played by Kevin Costner, as Devil Anse Hatfield, and Bill Paxton, as Ranel McCoy. Costner also worked as a producer on the project. The History Channel paired the miniseries' release with a two-hour documentary America's Feud: Hatfields and McCoys, and themed episodes of its top series Pawn Stars and American Pickers.43 Nancy Dubuc, president and general manager of the History Channel and an executive producer on the miniseries, said she knew that the story would be a perfect project to develop and treat seriously: "[i]t's a big pre-sold headline that everybody knows but nobody knows. It's part of American pop culture, but very few people could tell you the true story of these families."44 The miniseries was tremendously well received and sparked a renewed interest in the feud across America. One article appearing in the Lexington Herald- Leader stated: "'Hatfields and McCoys' broke viewership records and brought in an avalanche in all things feud-related."45 After the miniseries premiered, communities along the Tug Fork witnessed a surge of tourists by the thousands drawn to the region in search of history.46 Officials on both sides of the river attribute the increase to the Hatfields & McCoys broadcast. Other television networks have also attempted to piggyback on the buzz the miniseries created. One example is National Geographic's show Diggers who focused an episode on uncovering artifacts located at the site of the New Year's Massacre.47

There is no doubt that the media's depiction of the Hatfield and McCoy feud has been far from accurate or that its portrayal has entertained millions across many generations. It has, however, kept the story alive. Hopefully, the History Channel's miniseries will create a turn toward a more historically accurate interpretation of the feud so people can be entertained by the story as well as educated on an important piece of history.

43 T. L. Stanley, "'Hatfields & McCoys' Miniseries Looks at Families' Bloody Feud," L. A. Times (May 27, 2012), http://articleslatimes.com/2012/may/27/entertainment/la-ca-hatfields-mccoy- 20120527.

44 Id.

45 Mary Meehan, "Hatfield-McCoy Battle Artifacts Highlighted in National Geographic Show," Kentucky.com, (January 28, 2013), http://www.kentucky.com/2013/01/28/2494035/hatfield- mccoy-artifacts.html.

46 Chase Purdy, "Feud Tourism in the Land of Hatfields and McCoys," Pittsburg Post-Gazette (May 5, 2013), http://www.post-gazette.com/stories/news/us/feud-tourism-in-the-land-of-hatfields- and-mccoys-686324/.

47 Meehan, supra note 36.

13 V. CONCLUSION

"As history or as drama, the Hatfield-McCoy feud will unquestionably retain its primacy as the best-known and most interesting of all American family vendettas." – Otis Rice48

The Hatfield and McCoy feud has contributed to American History for almost 150 years. The feud contained an intrinsic plot with which individuals can easily identify. Feelings of love, pride, loyalty, justice, and family evoke a strong reaction and powerful emotions in everyone. Those elements are what have kept this story alive. The feud directly affected those living in the area at the time, posed new questions to our judicial system, and sparked an interest in the Appalachia area that still exists today. It is clear that the influence and legend that has become the Hatfield McCoy feud will live on.

48 Rice, supra note 5, at 126.

14 WHAT IN SAM HILL ... STARTED THE HATFIELD AND MCCOY FEUD? Reprinted from http://kynghistory.ky.gov/history/3qtr/addinfo/hatfieldmccoy.html

Report from the Adjutant General of Kentucky, 1888. Kentucky Senate Tuesday, March 6, 1888. Legislative Document No. 2

On motion of Mr. Smith, the following communication from the Governor, and accompanying correspondence, was ordered printed and laid on the desks of members, viz:

Commonwealth of Kentucky, Executive Department, Frankfort, Samuel Ewing Hill March 5, 1888. Adjutant General of Kentucky, 1887-1891. Hon. J. W. Bryan, Speaker of the Senate:

SIR: In compliance with a resolution of the Senate adopted February 11, 1888, I have the honor to transmit herewith a copy of the official correspondence between the Governor of West Virginia and myself, in relation to the Pike county troubles, and also of the Adjutant-General’s report thereon.

Very respectfully, S. B. Buckner.

[Only the Report of the Adjutant General of Kentucky reproduced below, see Kentucky Documents, 1888 for complete correspondence]

Frankfort, Ky., February 6, 1888. Gov. S. B. Buckner:

DEAR SIR:

…Pursuant to your order of the 29th ult. I left Frankfort that night and proceeded to Pike County to investigate the border warfare between the Hatfields, of Logan County, of West Virginia, and the McCoys, of Pike County. I reached Pikeville the night of the 31st, and remaining till the morning of the 3d, made diligent inquiry into the origin and history of the feuds, and from the most reliable sources I gathered the following facts, viz: Some time previous to the August election, 1882, the Sheriff of Pike county appointed Tolbert McCoy a special bailiff to execute some bench warrants on Johnson Hatfield, which warrants had issued on indictments found against said Hatfield in the Pike Circuit Court for misdemeanors, and which warrants the Sheriff himself had been unable to execute. Tolbert McCoy, with two of his brothers, made the arrest of Hatfield under the warrants and started to Pikeville with their prisoner, when they were intercepted by an armed force of the Hatfields, who had been informed of the arrest by some friends, and who immediately crossed the Tug Fork of the Big Sandy, and, taking a nearer route than

15 that traveled by McCoy and his prisoner, intercepted them and rescued the prisoner. Soon afterwards, at the August election, 1882, several of the Hatfields crossed over to the Kentucky side to attend the election, as was their custom, when, during the day, "Big" Ellison Hatfield, brother to Anderson Hatfield, the present leader of the Hatfield band, and Tolbert McCoy, engaged in a fight, which was provoked and urged on by Hatfield, who was a very large man, and far over-matched McCoy, who was a man of small stature. McCoy soon found that he was over-matched, and drew his knife and commenced stabbing Hatfield, notwithstanding which, Hatfield continued to hold the advantage, and was in the act of braining McCoy with a large stone which he had, when McCoy’s brother came to his assistance and shot Hatfield with a pistol.

…The McCoys, who had participated in that fight, were arrested by the Pike county authorities, and were being detained in custody to await the result of Hatfield’s wounds, when Anderson Hatfield and his gang took them by force from the custody of the Kentucky authorities and carried them across Tug, near where they detained them till Ellison Hatfield died, some 36 to 48 hours, when they brought them back to the Kentucky side, and, tying them to papaw bushes, shot them to death. The McCoys thus slain were three in number, all brothers, and sons of Randolph McCoy, one of them being but fourteen years old, whom the Hatfields accused of complicity in the wounding of Ellison Hatfield. For this murder of three McCoy brothers the grand jury of Pike County, at the next term of the Pike Circuit Court, returned three indictments against each one of the twenty-three persons. Bench warrants were repeatedly issued on said indictments and were as often returned "not found," notwithstanding many of the persons indicted frequently crossed to the Kentucky side, but on such occasions they were numerically so strong and so well armed as to successfully resist arrest, even if it had been attempted. Thus matters rested for some five years, the Hatfields, in the meantime, taking an active interest in Kentucky elections and admonishing the Sheriff, in whose hands the bench warrants might, at such time, happen to be, to stay away from the precinct or voting place on the east side of Pike county and contiguous to the Tug, which they were in the habit of visiting on election occasions, on the day of their contemplated visit, or, if he should attend, to leave the bench warrants for their arrest behind; and their admonitions were heeded till Frank Phillips, whom your Excellency designated as the agent for Kentucky to receive the persons named in your requisition upon the Governor of West Virginia for certain ones of said indicted parties, was appointed Deputy Sheriff; when on one occasion, when an election was approaching, they sent word to Phillips to keep away from said election, as they wanted to attend, or, if he attended, to leave the bench warrants against them behind, for if he was there with the bench warrants they would kill him. Phillips replied that his official business demanded his presence there that day, and that he would be there, and would have the bench warrants, and if they came he would either take or kill them.

…Phillips went to the election and the Hatfields approached within gunshot and fired a volley up through the brush, stampeding all but some eight or ten persons; the plucky little Sheriff remained till late in the evening, but, plucky as he is, he did not feel that he could accomplish their arrest.

…Nothing further of an eventful character occurred in the history of the vendetta till last fall, when Frank Phillips, with two or three men, crossed over into Logan county to receive the prisoners who, he said, he supposed had by that time been arrested under warrants issued by Gov. Wilson, based upon your requisition; but learning, after he had crossed the State line, that no warrants had been issued, or at least that no arrest had

16 been made, and meeting with Tom. Chambers, who is said to have taken a prominent part in the murder of the three McCoy brothers and two others, all three of whom were included in the indictments, he could not resist so good an opportunity to arrest them, and so he did arrest them and brought them back to Pike county, where they, were served with the bench warrants and placed in jail. To avenge that invasion and arrest, as it is supposed, the Hatfield crowd, on the night of January 1st, ult., crossed the Tug Fork in force, penetrated Pike county a distance of seven miles till they reached the peaceful mountain home of old Randolph McCoy, which they surrounded and demanded a surrender. The faithful watch dog had given warning, however, and old man McCoy and his son Calvin, about twenty-seven years old, arose (the family had retired for the night) and made hasty preparations for the best defense possible against such heavy odds, and to the heavy volleys of the assailants returned a vigorous fire and held them at bay for some two or three hours, and until the house, which had been fired from without, was almost ready to fall, when the young man leaped out and ran towards the corn crib, having said to his father that if he could reach the crib he would cover the father’s retreat to the same point, and he believed from that retreat they could yet drive the marauders off; but when about half-way from the dwelling to the crib he fell dead with a ball through his brain. The old man then seized a double-barrel shot-gun and leaped out, discharging both barrels at the enemy, who, somewhat disconcerted for a moment, did not fire upon him till he was well out in the darkness, and, although they fired several shots at him, he escaped unhurt.

…In the meantime, one of the party had commanded his unmarried daughter, who occupied a room somewhat detached from that occupied by her parents, to make a light, but she replied that she had neither fire nor matches. The command was repeated, and, upon her failure to comply, she was shot through the left breast and instantly killed, though she begged piteously for them not to execute their threat to shoot her for failing to make light, assuring them that it was not in her power to comply with their command. The old mother rushed from her room to go to her daughter; whereupon she was struck upon the head, knocked down and beaten into insensibility, and left for dead upon the porch – at least, with part of her person on the porch. The assailants withdrew just before the house was ready to fall at one end, first closing what little of the door shutters which had not been shot away, with the evident purpose of burning the remaining members of the family; but, after they were gone, another daughter, about eighteen years old rescued some bedding, upon which she placed the body of her dead sister, the almost lifeless form of her mother, and two children of Talbert McCoy – a boy about seven years old and a little hunchback girl about five – where they remained till the neighbors arrived, about daylight. The heroic girl had her feet badly frost bitten, from which she has not yet recovered, and she could not avoid weeping freely as the old lady detailed to me, in her presence, the horrors of that terrible night. The little boy, too, is worthy of special mention, for when he emerged from the burning dwelling, when it was almost ready to fall, he thought of his little crippled sister, who was still in the house, and he re-entered and again came forth leading her by the hand; nor did he even cry during the whole of the battle. Mrs. McCoy impressed me as a candid, honest old lady, and was still unable to walk when I saw her, on account of several of her ribs being broken near the spinal column.

…About the 8th of January, Frank Phillips, with a number of Kentuckians, again crossed the Tug Fork to arrest the outlaws and bring them to justice, when they were fired on by old man Jim Vance and Cap. Hatfield; and in the fight which resulted old man Vance –

17 who is said to have been the most desperate man in that entire section, and a fast friend of the Hatfields – was killed, but Cap. Hatfield made his escape.

…Subsequently, Phillips and party made another incursion into Logan county, and were again fired upon (without warning this time); and in the fight which ensued, one Dempsey, of the Hatfield party, was killed, and Bud McCoy, of the Phillips party, was severely wounded. In the two forays made by Phillips and his party during the present year they succeeded in capturing six more of the indicated parties, all of whom were brought safely over into Pike, served with warrants of arrest, and confined in the Pike county jail, making nine in all of the twenty-three indicted persons now confined in the Pike county jail, and awaiting trial for the murder of the McCoy brothers.

…The charge that the vendetta originated during the war is not sustained by the facts; for while it is true Hurmer McCoy, a brother of Randolph McCoy, was murdered after his discharge and return home from the Union army, his murder was attributed to old James Vance, and none of his kindred ever attempted, so far as I could learn, to avenge his death; and Johnson Hatfield, son of Anderson, has since married his daughter. The McCoys and Hatfields belong to the same political party, hence the feud is, and has been from the start, personal and political. The assertion that Anderson Hatfield and his sons, Johnson and Cap., are reputable, law-abiding people, is not sustained, for the stories of their lawlessness and brutality, vouched for by credible persons, would fill a volume; while, on the other hand, old man McCoy and his boys are represented as law- abiding, honest people by reputable men, who have known them long and intimately, and the young man, Calvin, who was murdered on New Year’s night, is spoken of in terms of the highest commendation, and I was repeatedly told that Pike county did not contain a young man of better character or habits. I advised our people to remain upon our side of the State line, and assured them of your Excellency’s active sympathy for them in all lawful measures to uphold the law and punish crime, and that you would exert the influence of your high office to maintain the law and to punish offenders against it; but told them that you were especially desirous that they should do nothing which would give the officials of West Virginia just cause of complaint.

…I took the initial steps towards organizing accompany of State Guards at Pikeville, there being plenty of good material there for the purpose, and in which I feel confident we will secure for the State Guard the service of an excellent company; and I sought to impress them with the fact that their arms would be used only by command of the civil authority in maintaining the peace and dignity of our Commonwealth in the rigid enforcement of her laws.

Respectfully submitted.

Sam. E. Hill, Adjutant-General.

18 Hatfield and McCoy Feud Timeline

RANEL AND DEVIL ANSE MEET IN CIVIL WAR INDICTMENTS ORDERED FOR DEVIL ANSE AND 20 OTHERS NEW YEAR'S DAY MASSACRE ELECTION DAY ATTACK ON ELLISON HATFIELD BY HOG TRIAL THREE OF RANEL'S SONS U.S. SUPREME COURT DECIDES MAHON V. JUSTICE

NUMEROUS CIVIL SUITS "BATTLE OF GRAPEVINE CREEK"

1863 (exact date January 7, 1865 April 1886 Fall of 1878 Early August 1880 August 7, 1882 August 9, 1882 September 1882 September 1887 January 1, 1888 January 8, 1888 January 19, 1888 May 14, 1888 September 1889 unknown) 19

HARMON MCCOY ALLEGEDLY KILLED BY JIM VANCE ELECTION DAY (JOHNSE HATFIELD AND ROSEANNA GOVERNOR OF KENTUCKY POSTS REWARDS FOR HATFIELDS TRIED IN COURT AND FEUD ENDS MCCOY MEET) HATFIELDS AND FRANK PHILLIPS RAIDS WV ELLISON HATFIELD DIES AND THE THREE BOYS ARE FRANK PHILLIPS RAIDS WV AND JIM VANCE IS KILLED MURDERED

20 constitution of the United States and the constitution of the state of West Virginia, and the laws made in Page 700 pursuance thereof, might be respected and enforced, prayed that the writ of habeas corpus be granted, directed 127 U.S. 700 (1888) to the keeper of the jail, commanding him to produce the body of said Plyant Mahon, together with the cause of his 8 S.Ct. 1204, 32 L.Ed. 283 detention, before the judge of the court at such time and place as might be designated, and that judgment be MAHON rendered that said Plyant Mahon be discharged from said v. confinement and custody, and be safely returned within the jurisdiction of the state of West Virginia. At the same JUSTICE, Jailer, etc. time another petition was presented to the court by one John A. Sheppard, representing that he was a citizen of United States Supreme Court. West Virginia, and setting forth substantially the facts contained in the petition of the governor, and praying for May 14, 1888 a like writ of habeas corpus. Subsequently the name of Plyant Mahon was substituted for that of John A. Appeal from the Circuit Court of the United States Sheppard, and the proceedings on the petition were for the District of Kentucky. conducted in his name. The court ordered the writ to issue, directed to the jailer of Pike county, requiring him BRADLEY and HARLAN JJ., dissent. to produce the body of Mahon before the district court of the United States in the city of Louisville, on the 20th of [8 S.Ct. 1204] On the 9th of February, 1888, the the month, and there to abide such order as might be governor of West Virginia, on behalf of that state, made in the premises. The jailer of the presented to the district court of the United States for the district of Kentucky a petition, representing that during Page 702 the month of September, 1887, a requisition was made upon him as governor aforesaid, by the governor of county, Abner Justice, made a return to the writ Kentucky, for Plyant Mahon, alleged to have committed substantially as follows: That he held Plyant Mahon in murder in the latter state, and to have fled from its justice, custody and confined in the jail of Pike county by virtue and to be then at large in West Virginia; that pending of and in obedience to three writs issued by the clerk of correspondence between the two governors, and the the criminal court of the county, under its order, each for consideration of legal questions growing out of the the arrest of Mahon to answer an indictment pending requisition, and during against him and others for the crime of willful murder, alleged to have been committed in that county, a crime [8 S.Ct. 1205] the month of December, 1887, or January, for the trial of which that court had full jurisdiction, and 1888, the said Plyant Mahon, while residing in West commanding the officer arresting Mahon to deliver him Virginia, was, in violation of her laws, and of the to the jailer of the county--copies of which writs were constitution and laws of the United States, and without annexed to the return; that, under the writ of habeas warrant or other legal process, arrested by a body of corpus he was proceeding to the city of Louisville to armed men from Kentucky, and by force and against his produce the body of Mahon before the United States will, conveyed out of the state of* West Virginia into the district court there, when he was met on his way by the county of Pike, in the state of Kentucky, and there United States marshal of the district of Kentucky, who, confined in the common jail of the county, where he has by virtue of the order of the district court, took Plyant been ever since, and deprived of his liberty by the keeper Mahon into his custody. He further returned that three thereof. The petitioner further represented that on the 1st indictments against Mahon and others for willful murder of February, 1888, he, as governor of West Virginia and were found by the grand jury of Pike county, Ky., and on her behalf, made a requisition upon the governor of returned into the circuit court of said county at its Kentucky that Plyant Mahon be released from September term, 1882, at which time that court had confinement, set at large, and returned in safety to the jurisdiction of the crime charged; that, by order of the state of West Virginia; and that the demand was, on the court, made at each subsequent term, writs were issued 4th of that month, refused on the ground, among others, by the clerk thereof for the arrest of Plyant Mahon to that the questions involved were judicial and not answer the indictments, until the criminal court of the executive. The petitioner, therefore, in alleged county was established by act of the general assembly of vindication of the rights of the state of West Virginia, and Kentucky in 1884, by which the jurisdiction previously of every citizen thereof, and especially of the said Plyant vested in the circuit court was transferred to and vested in Mahon thus confined and deprived of his liberty, to the said criminal court; that, by orders of this latter court end that due process of law secured by both the

21 from term to term, writs were issued by the clerk thereof upon the writ, and are contained in its findings. On the for the arrest of Mahon to answer the indictments; but 3d of March the court denied the motion for the discharge none of them were executed upon of Plyant Mahon, and ordered the marshal to return him to the jailer of Pike county. From this order an appeal [8 S.Ct. 1206] him until January 12, 1888, when he was was taken to the circuit court of the United States and arrested in Pike county by the sheriff thereof, and there affirmed. To review the latter order the case is delivered by him to the respondent, jailer of said county, brought here. in obedience to the writs which were issued, and under the command and authority of which he was held by the COUNSEL respondent as jailer in custody in the jail of said county, when the writ of habeas corpus was served upon him. Page 704 The jailer subsequently, by leave of the court, made a Eustace Gibson, for appellant. Page 703 J. Proctor Knott, for appellee. further return, in which he stated that a requisition was made by the governor of Kentucky upon the governor of OPINION West Virginia for the arrest and rendition to Kentucky of Mr. Justice FIELD, after stating the facts as above, said Plyant Mahon as alleged in the governor's petition; delivered the opinion of the court. that it was accompanied by a copy of the indictments referred to, certified by the governor of Kentucky to be The governor of West Virginia, in his application on authentic; that at the same time the governor appointed behalf of the state for the writ of habeas corpus to obtain on Frank Phillips as the agent of the state to receive and the discharge of Mahon and his return to that state, bring to the state of Kentucky the said Mahon, as proceeded upon the theory that it was the duty of the provided by law in such cases; that on the 30th of United States to secure the inviolability of the territory of September, 1887, the governor of West Virginia returned the state from the lawless invasion of persons from other said requisition to the governor of Kentucky, informing states, and when parties had been forcibly taken from her him that an affidavit, as required by the statute of West territory and jurisdiction to afford the means of Virginia, should accompany the requisition before the compelling their return; and that this obligation could be same could be complied with; that thereafter the governor enforced by means of the writ ofhabeas corpus ,asthe of Kentucky returned the requisition to the governor of court in discharging the party abducted could also direct West Virginia, accompanied by the affidavit required; his return to the state from which he was taken, or his that afterwards, about the 12th of January, 1888, Frank delivery to persons Phillips and others, with force and arms, violently seized the said Mahon in the state of West Virginia and brought [8 S.Ct. 1207] who would see that its order in that respect him against his will into the county of Pike in the state of was carried out. If the states of the Union were possessed Kentucky, where the writs mentioned in the respondent's of an absolute sovereignty, instead of a limited one, they original return were executed upon him by the sheriff of could demand of each other reparation for an unlawful Pike county; that at that time no warrant for the arrest of invasion of their territory and the surrender of parties Mahon had been issued or ordered to be issued by the abducted, and of parties committing the offense, and, in governor of West Virginia in compliance with said case of refusal to comply with the demand, could resort requisition; and afterwards, on the 30th of January, 1888, to reprisals, or take any other measures they might deem he informed the governor of Kentucky that he declined to necessary as redress for the past and security* issue his warrant for the arrest of Plyant Mahon, in compliance with the requisition made upon him, because Page 705 he had become satisfied, upon investigation of the facts, that Mahon was not guilty of the crime charged against for the future. But the states of the Union are not him in the indictments; and that subsequently, on the 1st absolutely sovereign. Their sovereignty is qualified and of February, 1888, the governor of West Virginia made limited by the conditions of the Federal constitution. upon the governor of Kentucky a demand for the release They cannot declare war or authorize reprisals on other of Mahon from the jail of the county of Pike and his safe states. Their ability to prevent the forcible abduction of conduct back into West Virginia, with which demand the persons from their territory consists solely in their power governor of Kentucky declined to comply, on the ground to punish all violations of their criminal laws committed that Mahon was in the custody of the judicial department within it, whether by their own citizens or by citizens of of the common wealth, and that the question of his other states. If such violators have escaped from the release upon the grounds alleged in the demand* was one jurisdiction of the state invaded, their surrender can be which the courts alone could determine, and that the secured upon proper demand on the executive of the state adjudication thereof was not one within the purview of to which they have fled. The surrender of the fugitives in his powers and duties as governor. The facts thus such cases to the state whose laws have been violated is detailed were established before the court on the hearing the only aid provided by the laws of the United States for

22 the punishment of depredations and violence committed cannot compel its exercise when it is refused; it is in one state by intruders and lawless bands from another admissible only upon the consent of the state, and when state. The offenses committed by such parties are against consistent with her own interests and policy. Bank v. the state; and the laws of the United States merely Earle, 13 Pet. 519, 589, Story, Confl. Law, § 30. provide the means by which their presence can be secured in case they have fled from its justice. No mode The only question, therefore, presented for our is provided by which a person unlawfully abducted from determination is whether a person indicted for a felony in one state to another can be restored to the state from one state, forcibly abducted from another state, and which he was taken, if held upon any process of law for brought to the state where he was indicted, by parties offense against the state to which he has been carried. If acting without warrant or authority of law, is entitled not thus held he can, like any other person wrongfully under the constitution or laws of the United States to deprived of his liberty, obtain his release on habeas release from detention under the indictment by reason of corpus. Whether congress might not provide for the such forcible and unlawful abduction. Section 753 of the compulsory restoration to the state of parties wrongfully Revised Statutes declares that 'the writ abducted from its territory upon application of the parties, or of the state, and whether such provision would not Page 707 greatly tend to the public peace along the borders of the of habeas corpus shall in no case extend to a prisoner in several states, are not matters for present consideration. jail, unless where he is in custody under or by color of the It is sufficient now that no means for such redress authority of the United States, or is committed for trial through the courts of the United States have as yet been before some court thereof; or is in custody for an act done provided. The abduction of Mahon by Phillips and his or omitted in pursuance of a law of the United States, or aids was made, as appears from the return of the of an order, process, or decree of a court or judge thereof; respondent to the writ, and from the findings of the court or is in custody in violation of the constitution or of a law below, without any warrant or authority from the or treaty of the United States.' To bring the present case governor of West Virginia. It is true that Phillips was within the terms of this section it is contended that the appointed by the governor of Kentucky as agent of the detention of the appellant is in violation of the provisions state to receive Mahon upon his surrender on the of the fourteenth amendment of the constitution, that 'no Page 706 state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United requisition; but, no surrender having been made, the States, nor shall any state deprive any person of life, arrest of Mahon and his abduction from the state were liberty, or property, without due process of law;' and also lawless and indefensible acts, for which Phillips and his in violation of the clause of the constitution providing for aids may justly be punished under the laws of West the extradition of fugitives of justice from one state to Virginia. The process emanating from the governor of another, and the laws made for its execution. As to the Kentucky furnished no ground for charging any fourteenth amendment, it is difficult to perceive in what complicity on the part of that state in the wrong done to way it bears upon the subject. Assuming, what is not the state of West Virginia. It is true, also, that the conceded, that the fugitive has a right of asylum in West accused had the right while in West Virginia of insisting Virginia, the state of Kentucky has passed no law which that he should not be surrendered to the governor of infringes upon that right or upon any right or privilege of Kentucky by the governor of West Virginia, except in immunity which the accused can claim under the pursuance of the acts of congress, and that he was entitled constitution of the United States. The law of that state to release from any arrest in that state not made in which is enforced is a law for the punishment of the accordance with them; but, having been subsequently crime of murder, and she has merely sought to enforce it arrested in Kentucky under the writs issued on the by her officers under process executed within her indictments against him, the question is not as to the territory. She did not authorize the unlawful abduction of validity of the proceeding in West Virginia, but as to the the prisoner from West Virginia. As to the removal from legality of his detention in Kentucky. There is no comity the state of the fugitive from justice in a way other than between the states by which a person held upon an that which is provided by the second section of the fourth indictment for a criminal offense in one state can be article of the constitution, which declares that 'a person turned over to the authorities of another, though abducted charged in any state with treason, felony, or other crime, from the latter. If there were any such comity, its who shall flee from justice, and be found in another state, enforcement would not be a matter within the jurisdiction shall, on demand of the executive authority of the state of the courts of the United States. By comity nothing from which he fled, be delivered up, to be removed to the more is meant than that courtesy on the part of one state state having jurisdiction of the crime,' and the laws by which, within her territory, the laws of another state passed by congress to carry the same into effect, it is not are recognized and enforced, or another state is assisted in the execution of her laws. From its Page 708

[8 S.Ct. 1208] nature the courts of the United States perceived how that fact can effect his detention upon a

23 warrant for the commission of a crime within the state to the principal objections urged in the case at bar to the which he is carried. The jurisdiction of the court in detention of the appellant: 'The prisoner,' said the which the indictment is found is not impaired by the chancellor, 'is charged with a felonious violation of the manner in which the accused is brought before it. There laws of this state. It is answered that other persons have are many adjudications to this purport cited by counsel on been guilty, in relation to him, of an outrageous violation the argument, to some of which we will refer. The first of the laws of another state, and therefore he ought to be of these is that of Ex parte Scott , 9 Barn. & C. 446. discharged. I perceive no connection between the There, it appeared that the prisoner, who had been premises and the inference. The chief argument is drawn indicted in the king's bench for perjury, and for whose from the supposed consequences which are likely to apprehension a warrant had been issued, was arrested by follow by bringing our government into collision with the officer, to whom the warrant was specially directed, others. This is less to be apprehended among the states of at Brussels, in Belgium, and conveyed to England. A the Union, where the federal constitution makes provision rule nisi was then obtained from the court for a writ of for a satisfaction of the violated jurisdiction. But suppose habeas corpus, and the question of her right to be the case of a foreign state. There is no offense in trying, released because of her illegal arrest in a foreign and, if he be guilty, convicting, the subject of a foreign jurisdiction was argued before Lord TENTERDEN. He government, who has been guilty of a violation of our held that where a party charged with a crime was found laws, within our jurisdiction. Or, if he had made his in the country, it was the duty of the court to take care escape from our jurisdiction, and by any accident were that he should be amenable to justice, and it could not thrown within it again; if he were shipwrecked on our consider the circumstances under which he was brought coast, or fraudulently induced to land, by a representation there, and that if the act complained of was done against that it was a different territory, with a view to his being the law of a foreign country, it was for that country to given up to prosecution,--there would seem to be no vindicate its own law, and the rule was discharged. The reason for exempting him from responsibility to our laws. next In the case we are considering the prisoner is found in our jurisdiction in consequence of a lawless act of violence [8 S.Ct. 1209] case is that of State v. Smith, which was exercised upon him by individuals. The true very fully and elaborately considered by the chancellor and the court of appeals of South Carolina. 1 Bailey, 283. Page 710 Though this case did not arise upon the forcible arrest in another jurisdiction of the offender to answer an cause of offense to the foreign government is a lawless indictment, but to answer to a judgment the conditional violation of its territory. But a similar violation of a release from which he had disregarded, the principle foreign jurisdiction might be made for other purposes, involved was the same. Smith had been convicted of and it would not be in the power of our tribunals to afford stealing a slave and sentenced to death. He was pardoned satisfaction. An individual might be kidnaped and on condition that he would undergo coufinement during a brought within our territory for the purpose of extorting designated period, and within 15 days afterwards leave money from him, or murdering him. It would not seem to the state and never return. The pardon was accepted, and be an appropriate satisfaction to the injured government the prisoner remained in confinement for the time to exempt a person justly liable to punishment under our prescribed, and within 15 days afterwards removed to laws, where we have no means of giving up to North Carolina, and remained there some years, when he punishment those who have violated its laws. But there returned to is no difficulty among the states of the Union. Upon demand by the state of North Carolina those who have Page 709 violated its laws will be given up to punishment.' 1 Bailey, 292. Subsequently the prisoner was brought South Carolina. The governor of the latter state then before the presiding judge of the court of appeals of the issued a proclamation stating that the prisoner was in the state to answer to a rule to show cause why his original state in violation of the condition of his pardon, and sentence should not be executed and a date fixed for his offering a reward for his arrest. Smith afterwards execution. He showed for cause that he had received an returned to North Carolina, where he was forcibly seized executive pardon, and had performed all the conditions by parties from South Carolina, without warrant or annexed to it, except the one which prohibited his return authority from any officer or tribunal of either state, to the state, except the proclamation of the governor of South Carolina, and was brought into the latter state and lodged [8 S.Ct. 1210] which, it was submitted, was illegal and in jail. He sued out a writ of habeas corpus ,andwas void. And for further cause he showed that he had been brought before the chancellor of the state, and his illegally arrested in North Carolina and brought within discharge was moved on the ground that his arrest in the jurisdiction of this state against his own consent, and North Carolina was illegal, and his detention equally so. it was, therefore, insisted that he was not amenable to the The motion was refused and the prisoner remanded. The courts of South Carolina, but was entitled to be sent back chancellor gave great consideration to the case, and in the to North Carolina, or to be discharged, and sufficient time following extract from his opinion furnishes an answer to allowed him to return thither. The judge held the grounds

24 to be insufficient, and the defendant then moved the court arrested. But the court answered that 'the liability of the to reverse his decision on substantially the same grounds, parties arresting them (the defendants) without legal and, among them, that he was entitled to be discharged in warrant, for false imprisonment or otherwise, and their consequence of having been illegally arrested in North violation of the penal statutes of Missouri, may be ever so Carolina and brought into the state. Upon this the court clear, and yet the prisoners not be entitled to their said: 'The pursuit of the prisoner into North Carolina and discharge. The offense being committed in Iowa, it was his arrest there was certainly a violation of the punishable here, and an indictment could have been sovereignty of that state, and was an act which cannot be found without reference to the arrest. There is no fair commended. But that was not the act of the state, but of analogy between civil and criminal cases in this respect. a few of its citizens, for which the constitution of the In the one (civil) the party invoking the aid of the court is United States has provided a reparation. It gives the guilty of fraud or violence in bringing the defendant or governor of that state the right to his property within the jurisdiction of the court. In the other (criminal) the people, the state, is guilty of no Page 711 wrong. The officers of the law take the requisite process, find the prisoners charged within the jurisdiction, and demand them of the governor of this, and imposes on the this, too, without force, wrong, fraud, or violence on the latter the obligation to surrender them; but until it is part of any agent of the state or officer refused there can be no cause of complaint.' And the motion was refused. In the case of State v. Brewster, the [8 S.Ct. 1211] thereof. And it can make no difference same doctrine was announced by the supreme court of whether the illegal arrest was made in another state or Vermont. 7 Vt. 118. There it appeared that the prisoner another government.' charged with crime had escaped to Canada and was brought back against his will, and without the consent of Other cases might be cited from the state courts the authorities of that province, and he sought to plead his holding similar views. There is indeed an entire illegal capture and forcible return in bar of the concurrence of opinion as to the ground upon which a indictment; but his application was refused, the court release of the appellant in the present case is asked, observing that the escape of the prisoner into Canada did namely, that his forcible abduction from another state, not purge the offense, nor oust the jurisdiction of the and conveyance within the jurisdiction of the court court, and he being within its jurisdiction it was not for it holding him, is no objection to his detention and trial for to inquire by what means or in what manner he was the offense charged. They all proceed upon the obvious brought within the reach of justice. Said the court: 'If ground that the offender against the law of the state is not there were anything improper in the transaction it was not relieved from liability because of personal injuries that the prisoner was entitled to protection on his own received from private parties, or because of indignities account. The illegality, if any, consists in a violation of committed against another state. It would indeed be a the sovereignty of an independent nation. If that nation strange conclusion if a party charged with a criminal complain it is a matter which concerns the political offense could be excused from answering to the relations of the two countries, and in that aspect is a government whose laws he had violated because other subject not within the constitutional powers of this court.' parties had done violence to him, and also committed an In State v. Ross, the supreme court of Iowa declared the offense against the laws of another state. The case of Ker same doctrine, and stated the distinction between civil v. Illinois, decided by this court, (119 U.S. 437, 7 Sup. and criminal cases where the party is by fraud or violence Ct. Rep. 225,) has a direct bearing upon the question brought within the jurisdiction of the court. 21 Iowa, 467. presented here, whether a forcible and illegal capture in The defendants were charged with larceny, and were another state is in arrested in Missouri and brought by force and against their will, by parties acting without authority, either of a Page 713 requisition from the governor or otherwise, to Iowa, where an indictment against them had been found. In violation of any rights secured by the constitution and Iowa they were rearrested, and turned over to the civil laws of the United States. In that case it appeared that authorities for detention and trial. It was contended that Ker was indicted in Cook county, Ill., for embezzlement their arrest was in violation of law; that they were and larceny. He fled the country and went to Peru. brought within the jurisdiction of the state by fraud and Proceedings were instituted for his extradition under the violence; that comity to a sister state and a just treaty between that country and the United States, and appreciation of the rights of the citizen, and a due regard application was made by our government for his to the integrity of the law, demanded that the court should surrender, and a warrant was issued by the president, under such directed to one Julian, as messenger, to receive him from the authorities of Peru, upon his surrender, and to bring Page 712 him to the United States. Julian, having the necessary papers, went to Peru, but, without presenting them to any circumstances refuse its aid; and that there could be no officer of the Peruvian government, or making any rightful exercise of jurisdiction over the parties thus demand on that government for the surrender of Ker,

25 forcibly arrested him, placed him on board the United States, have surrendered Ker to an agent of Illinois, and States vessel Essex, then lying in the harbor of Callao, that such surrender would have been valid within Peru; kept him a close prisoner until the arrival of that vessel at that it could not, therefore, be claimed, either by the Honolulu, in the Hawaiian islands, where, after some terms of the treaty or by implication, that there was given detention, he was conveyed in the same forcible manner to a fugitive from justice in one of those countries any on board another vessel, in which he was carried a right to remain and reside in the other; and that if the prisoner to San Francisco, Cal. Before his arrival in that right of asylum meant anything it meant that. So in this state the governor of Illinois had made a requisition on case, it is contended that, because under the constitution the governor of California, under the laws of the United and laws of the United States a fugitive from justice from States, for his delivery as a fugitive from justice. The one state to another can be surrendered to the state where governor of California accordingly made an order for his the crime was committed, upon proper proceedings* surrender to a person appointed by the governor of Illinois to receive him and take him to the latter state. On Page 715 his arrival at San Francisco he was immediately placed in the custody of this agent, who took him to Cook county, taken, he has the right of asylum in the state to which he where the process of the criminal court was served upon has fled, unless removed in conformity with such him, and he was held to answer the indictment. He then proceedings, and that this right can be enforced in the sued out a writ of habeas corpus before the circuit court courts of the United States. But the plain answer to this of the state, contending that his arrest and deportation contention is, that the laws of the United States do not from Peru was a violation of the treaty between that recognize any such right of asylum, as is here claimed, on government and ours, and that consequently his the part of a fugitive from justice in any state to which he subsequent detention under the process of the state court has fled; nor have they as already stated, made any was unlawful. The circuit court remanded him to jail, provision for the return of parties who, by violence and holding that whatever illegality might have attended his without lawful authority, have been abducted from a arrest it could not affect the jurisdiction of the court, or state. There is, therefore, no authority in the courts of release him from liability to the state whose laws he had United States to act upon any such alleged right. In Ker violated. He then applied to the circuit court of the v. Illinois the court said that the question of how far the forcible seizure of the defendant in another country, and Page 714 his conveyance by violence, force, or fraud to this country, could be made available to resist trial in the state United States for a writ of habeas corpus , asking his court for the offense charged upon him, was one which it release upon the same ground; but the court refused it, did not feel called upon to decide, for in that transaction it holding that it was not competent to look into the did not see that the constitution, or laws, or treaties of the circumstances under which the capture and the transfer of United States guarantied to him any protection. So in this the prisoner from Peru to the United States were made, case we say that, whatever effect may be given by the nor to free him from the consequences of the lawful state court to the illegal mode in which the defendant was process which had been served upon him for the offense brought from another state, no right, secured under the which he was charged with having committed in the state constitution or laws of the United States, was violated by of Illinois. When arraigned on the indictment in the trial his arrest in Kentucky, and imprisonment there, upon the court he raised similar questions on a plea in abatement, indictments found against him for murder in that state. It which was held bad on demurrer; and after conviction he follows that the judgment of the court below must be carried the case on a writ of error to the supreme court of affirmed. the state, where the same conclusion was reached, and the judgment against him was affirmed. He then brought the BRADLEY, J., (dissenting.) case to this court, where it was contended I dissent from the judgment of the court in this case. [8 S.Ct. 1212] that, under the treaty of extradition with In my opinion, the writ of habeas corpus was properly Peru, he had acquired by his residence in that country a issued, and the prisoner, Mahon, should have been right of asylum, a right to be free from molestation for the discharged, and permitted to return to West Virginia. He crime committed in Illinois--a right that he should be was kidnaped, and carried into Kentucky in plain forcibly removed from Peru to the state of Illinois only in violation of the constitution of the United States, and is accordance with the provisions of the treaty; and that this detained there in continued violation thereof. It is true, right was one which he could assert in the courts of the he is charged with having United States. But the court answered that there was no language in the treaty on the subject of extradition which Page 716 said in terms that a party fleeing from the United States to committed a crime in Kentucky. But the constitution escape punishment for a crime became thereby entitled to provides a peaceable remedy for procuring the surrender an asylum in the country to which he had fled; that it of persons charged with crime and fleeing into another could not be doubted that the government of Peru might, state. This provision of the constitution has two objects: of its own accord, without any demand from the United

26 the procuring possession of the offender, and the take this to be a legal and apt remedy to settle the case by prevention of irritation between the states, which might peaceable judicial means. A requisition would not apply. arise from giving asylum to each other's criminals, and That is provided for the extradition of fugitives from from violently invading each other's territory to capture justice. It would apply for the delivery up of the them. It clearly implies that there shall be no resort to kidnapers, but not for the restoration of their victim. It is force for this purpose. The constitution has abrogated, a special constitutional remedy, addressed by the and the states have surrendered, all right to obtain redress executive of one state to the executive of another, from each other by force. The constitution was made to imposing a constitutional duty of extradition when 'establish justice' and 'insure domestic tranquillity;' and to properly made in a proper case. But the present case is a attain this end as between the states themselves, the different one. It is not the surrender of a fugitive from judicial power was extended 'to controversies between justice which is sought, but the surrender of a citizen two unconstitutionally abducted and held in custody. There must be some remedy for such a wrong. It cannot be that [8 S.Ct. 1213] or more states,' and they were enjoined to the states, in surrendering their right of obtaining redress deliver up to each other fugitives from justice when by military force and reprisals, have no remedy whatever. demanded, and even fugitives from service. This It was suggested by counsel that the state of West manifest care to provide peaceable means of redress Virginia might sue the state of Kentucky for damages. between them is utterly irreconcilable with any right to This suggestion could not have been seriously made. No; redress themselves by force and violence; and, of course, the remedy adopted was the proper one. Habeas corpus what is unconstitutional for the states is unconstitutional is not only the proper legal remedy, but a most salutary for their citizens. It is undoubtedly true that occasional one. It is calculated southern portion of its western line instances of unlawful abduction of a criminal from one the George states by securing a judicial and peaceful state to another for trial, have been winked at; and it has decision of the controversy. But it is contended that, been held to be no defense for the prisoner on his trial. although it may be within thespirit Such precedents are founded on those which have arisen where a criminal has been seized in one country and Page 718 forcibly taken to another for trial, in the absence of any international treaty of extradition. It is obvious that such of the constitution, it is not within its letter, and special cases stand on a very different ground. It is there a legislation is necessary to enable the courts or judges to question between independent nations bound by no ties of issue a habeas corpus. I do not think that the conclusion mutual obligation on the subject, and at liberty to adopt follows. Congress, from the beginning, clothed the such means of redress and retaliation as they please. But courts and judges of the United States with the general where an extradition treaty does exist, and a criminal has power to issue writs of habeas corpus; with the been delivered up under it, he cannot, without violating restriction, at first, not to extend to prisoners in jail, the treaty, be tried for any other crime but that for which unless in custody under authority of the United States, he was delivered up. U. S. v.Rauscher, 119 U.S. 407, 7 etc. But in 1833, 1842, and 1867 this restriction was Sup. Ct. Rep. 234. This shows that, even when rightfully modified, and by the last act removed altogether 'in all obtained for one offense, he cannot be prosecuted for cases where any person may be restrained another. It is true that in the same volume is found the case of Ker v. [8 S.Ct. 1214] of his or her liberty, in violation of the constitution, or of any treaty or law of the United States.' Page 717 14 St. 385; Rev. St. § 753. And, see Ex parte Parks, 93 U.S. 18, 22, where the reference to 14 St. should be page Illinois, 119 U.S. 437, 7 Sup. Ct. Rep. 225, in which it 385, instead of page 44. This is legislation enough. A was held not to be a good plea to an indictment that the citizen of West Virginia is deprived of his liberty, prisoner was kidnaped from Peru, with which country we contrary to the constitution and laws of the United States. had an extradition treaty. But this was because, as before The exigency has arisen in which the law applies; and if said, the prisoner himself cannot set up the mode of his the party himself is precluded from setting up his capture by way of defense, if the state from which he was wrongful abduction as a defense to an indictment, and abducted makes no complaint. Peru made none. But this perhaps precluded from demanding his discharge on is not such a case. The state from which Mahon was habeas corpus, his state has intervened for his protection, abducted has interposed, not only by a formal demand for and has sued out the writ. But I think that his own his restoration, but by suing out ahabeas corpus. Perhaps application for the writ is well grounded. He is not in the the writ might have been sued out of this court, as the situation of a criminal who has been abducted from a controversy had come to be a controversy between the state which takes no interest in his case. His restoration states, Kentucky having availed herself of the fruits of the has been demanded by his state, and habeas corpus may unlawful abduction by retaining the victim, and refusing be issued either at his own instance or that of the state. to restore him on demand. The state of West Virginia, This court does not hesitate, on the plea of insufficient however, has elected, as she might do, to have the writ legislation, to issue the writ of habeas corpus as an directed only to the person holding Mahon in custody. I appellate remedy wherever a citizen is deprived of his

27 liberty in violation of the constitution or laws of the United States, and is refused a discharge by other tribunals, and has no other remedy. See Ex parte Royal, 112 U.S. 181, 5 Sup. Ct. Rep. 98; Ex parte Royal , 117 U.S. 241, 6 Sup. Ct. Rep. 734. I think that the judgment of the circuit court should be reversed, and the prisoner restored to his liberty, with permission to return to the state of West Virginia.

I am authorized to say that Mr. Justice strong presumptive evidence of the regularity

28