regarded as, in some particulars, town officers, by our statutes, yet, as to criminal cases, they always have been, and still are, strictly county officers, except so far as the mere point of residence is concerned. And there is no law which limits a justice to act in his own town, except in the trial of civil causes. (c)

A justice of the peace, however, can not act as such in criminal any more than in civil cases, out of the county in which he was chosen. And though there are some common law authorities which seem to regard as valid certain ministerial acts and other proceedings had before him out of his county-such as taking recognizances and informations — when his jurisdiction is voluntarily submitted to, (d) yet even these concede that a justice so situated has no compulsory power whatever; (e) and as he may, so he ought, in all *485] cases, rigidly to refuse to act except while in * his own county. (f) It is quite clear that a justice, when out of his county, can not by his warrant cause a person from such county to be brought before him where he is; or imprison a party for not giving a recognizance; or commit for a crime; that any other coercive or judicial act will be altogether void, unless done within the county. (g)

Though the authority of a justice is, except in the instances above mentioned, generally limited to matters occuring within his county, it does not necessarily extend to all places within the county; if there be any district therein which possesses a separate jurisdiction; (i) as is the case in respect to the justices in some of the cities of this state, who have jurisdiction over all matters arising within such cities, to the exclusion of all other justices of the county. The legislature have power to enlarge or contract the territorial jurisdiction of justices of the peace, by the erection or division of counties. (k) (2)

(c) Id., 319.

(d) See 2 Hawk. P. C., ch. 8, § 29. 2 Toml. Law. Dict., 325. 2 Hale's P. C., 51

(e) Smythe's Justice in Ireland, 7 Dalt., ch. 6, § 7. 2 Hale, 50, 51. 1 Nun & Walsh, 47.

(f) See 9 Wend., 319, 322

(g) 1 Nun & Walsh, 47. Palm., 17. Dalt., ch. 6,7. 2 Hale, 50, 51.

(i) 1 Nun & Walsh, 60.

(k) 6 Cowen, 642. S. C., 9 id., 640.

(2) Jurisdiction in incorporated villages.]-Any justice of the peace of the town or towns in which an incorporated village is located has jurisdiction in all criminal cases that may arise within the bounds of the village, in the county in which they severally reside, with the same powers, and subject to the duties and liabilities, as a justice of the peace in other cases. Said justice shall receive, the same fees and compensation as is provided by law for similar services. The fees and compensation of such justice shall be audited and paid and collected in the same manner as the fees of justices of the peace for similar services. (Laws of 1870, ch. 291, title V. § 3; 2 R. S., 7th ed., 897.)

Whenever any person shall be arrested by a police constable, without process, under section 4 of title 5 of the above act, and such person shall be brought before

2. With respect to the Lature of the offense, and to the place where committed.

So far as the nature of the offense is concerned, the jurisdiction of a justice of the peace for the purpose of receiving complaints and issuing warrants to apprehend offenders, is without limit at common law. (m) Although it be generally true that a justice has

no * jurisdiction over offenses committed out of his county, [*486] yet there are cases where the presence of an offender within his county gives him authority, at common law, to proceed against such offender; and there are also numerous cases in which, by the special provisions of particular statutes, the justice has jurisdiction respecting the offenses therein specified, though committed out of his county. () Thus, it has long been settled that if a man commit a felony in one county and go into another county, a justice of the latter county may, upon information given, issue a warrant to apprehend him, and take his examination, and the information against him; and may commit him to the jail of such latter county, and bind over the witnesses to give evidence at the trial, and in short may proceed as if the offense had been committed within his jurisdiction. (s) Upon the same principle it has been decided that a justice may proceed with respect to a man coming into his county, after having committed a felony on the high seas; and may commit such person for trial at the next oyer and terminer to be held for the jurisdiction of the admiralty, &c. (t) In the case of Washburn (u) it was stated by Chancellor Kent to be the law and usage of nations to deliver up offenders charged

(m) 4 Black. Com., 290. 1 Chit. Cr. L., 34, 35. (r) 1-Nun & Walsh, 49.

(8) Id., 50. 1 Hale, 580. 3 Burn, 553.

(t) Rex v. Muilman, Park., 241. 2 Hawk. P. C., ch. 8, § 33, note. 3 Burn, 553. Chit. Cr. L., 94. Com. Dig., Justices of Peace, B. 1. (u) 4 John. Ch. Rep., 106.

the proper justice of the peace, such magistrate must proceed, forthwith to hear, try and determine the complaint or charge on which such person is so arrested. And such person shall, upon conviction by the justice, be fined by him in accordance with any ordinance or by-law of the village, for the punishment of such offense, and imprisonment in the county jail until such fine be paid, not exceeding ten days. (Laws of 1875, ch. 385, § 1; 1 R. S., 7th ed., 898.)

It is the duty of the several justices of the peace of the town in which an incorporated village is wholly or partially situated, during the sickness, absence from the village, or inability to act, of the police justice, or during a vacancy in said office, to render the same services, and perform the same duties, and they shall be entitled to the same fees therefor as though no police justice had been elected or appointed in such village, But it shall not be lawful for said justices of the peace to make any charge against such village, or the town or county in which the same is situate, for services rendered in or respecting criminal cases, trials or examinations in such village, or where the subject-matter thereof arose in such village, except as hereinbefore stated, during the sickness, absence from the village or inability to act, of the said police justice, or during a vacancy in said office. (Laws of 1875, ch. 514, § 2, as amended by L. of 1876, ch. 308; 1 R. S., 7th ed., 918.)

with felony and other high crimes, and who have fled from the country in which the crimes were committed, into a foreign and friendly jurisdiction. And he decided that it was the duty of the civil magistrate to commit such fugitive from justice, to the end that a reasonable time might be afforded for the government here to deliver him up, or for the foreign government to make application to the proper authorities here for his surrender. But, notwithstanding this decision, the question whether the state courts have the power to arrest and commit, or to deliver up, persons charged with having committed crimes in foreign countries, does not seem to be settled. In a later case, four of the judges of the supreme court of the United States were of the opinion that the power did not exist. () The same point has been decided in Pennsylvania. (w) If justices have no authority in such cases under the state laws, they probably have none under the laws of the United States; as the offense charged is not a "crime or offense against the United States," which it must be to give a justice any right to act under the laws of the United States. (x)

The constitution of the United States provides that "A person charged in any state with treason, felony or other crime, [* 487] who shall flee from * justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime." (1)

Under the authority of the 33d section of the act of congress, passed 24th September, 1789, for the purpose of carrying out the above provision of the constitution, any offender against the United States may be arrested by a justice of the peace or other magistrate of any state in the union, where he may be found. (2)

That section is as follows: "Whenever the executive authority of any state in the union or of either of the territories, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a magistrate of any state or territory as aforesaid, charging the person so demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so

(v) Holmes v Jennison, 14 Peters, 540.

(w) 10 Serg. & Rawle, 125. See also 5 Binn., 617.

(x) See post, ch. 3. See also, 1 Kent's Com.,

37.

4 Taunt., 43. 2 Stra., 848. See 4 Black. Com., 292, note (12), and n. t. 2 Caines' R., 213. (y) Const. U. S, art. 4, § 2.

(2) 5 Cowen, 273.

charged fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled to cause him or her to be arrested and secured." (3)

(3) FUGITIVES FROM JUSTICE.

The Code of Criminal Procedure contains the following provisions:

Requisitions from other states, etc.]-A person charged in any state or territory of the United States with treason, felony, or other crime, who shall flee from justice and be found in this state, must, on demand of the executive authority of the state or territory from which he fled, be delivered up by the governor of this state, to be removed to the state or territory having jurisdiction of the crime. (§ 827.)

Magistrate to issue warrant.]-A magistrate may issue a warrant for the apprehension of a person so charged, who shall flee from justice and be found within this state. (§ 828.)

Proceedings for arrest and commitment of the person charged.]-The proceedings for the arrest and commitment of the person charged are, in all respects, similar to those provided in this. Code, for the arrest and commitment of a person charged with a public offense committed in this state; except that an exemplified copy of an indictment found, or other judicial proceeding had against him, in the state or territory in which he is charged to have committed the offense, may be received as evidence before the magistrate. (§ 829.)

When, and for what time to be committed.]-If, from the examination, it appear that the person charged has committed the crime alleged, the magistrate, by warrant reciting the accusation, must commit him to the proper custody in his county, for a time specified in the warrant, which the magistrate deems reasonable, to enable the arrest of the fugitive under the warrant of the executive of this state, on the requisition of the executive authority of the state or territory in which he committed the offense, unless he give bail, as provided in the next section, or until he be legally discharged. (§ 830.)

His admission to bail.]-A judge of the supreme court may admit the person arrested to bail, by an undertaking, with sufficient sureties and in such sum as he deems proper, for his appearance before him at a time specified in the undertaking, and for his surrender to be arrested upon the warrant of the governor of this state. (§ 831.)

Magistrate to notify district attorney.]-Immediately upon the arrest of the person charged, the magistrate must give notice to the district attorney of the county, of the name of the person and the cause of his arrest. (§ 832.)

District attorney to give notice to executive authority of the state.]-The district attorney must immediately thereafter give notice to the executive authority of the state or territory, or to the prosecuting attorney or presiding judge of the criminal court, of the city or county

[*488 ]

*The supreme court has decided that where a person arrested as a fugitive from justice by a warrant from the governor, on the requisition of the governor of another state, sues out a writ of habeas corpus, the court or judge before whom he is brought will not inquire as to the probable guilt of the accused. The only inquiry in such cases is whether the warrant on which he is arrested states that the fugitive has been demanded by the executive of the state from which he is alleged to have fled, and that a copy of the indictment, or an affidavit charging him with having committed treason, felony or other crime, certified by the executive demanding him as authentic, have been presented. (e) An offense made indictable by statute is a crime, within the meaning of the constitution and law of congress on this subject. (ƒ) ·

When this proceeding is had under the comity of nations, it seems that an offender would be delivered up only when charged with crimes of great atrocity, or deeply affecting the public safety. (g)

Warrants issued by a justice of the peace can not be executed by

therein, having jurisdiction of the offense, to the end that a demand may be made for the arrest and surrender of the person charged. (§ 833.)

Discharge.]-The person arrested must be discharged from custody or bail, unless before the expiration of the time designated in the warrant or undertaking, he be arrested under the warrant of the governor of this state. (§ 834.)

Magistrate to return his proceedings to next court of sessions, etc.]-The magistrate must return his proceedings to the next court of sessions of the county, which must thereupon inquire into the cause of the arrest and detention of the person charged; and if he be in custody, or the time for his arrest have not elapsed, it may discharge him from detention or may order his undertaking of bail to be canceled, or continue his detention for a longer time, or re-admit him to bail, to appear and surrender himself within a time specified in the undertaking. (§ 835.)

The recitals in a warrant of the governor of this state for the arrest of a fugitive from the justice of another state, are to be taken, at least prima facie, as true. (People ex rel. Draper v. Pinkerton, 77 N. Y., 245.) Hence, a return to a writ of habeas corpus, setting forth such a warrant, which contains recitals of facts necessary to confer authority, under the constitution and laws of the United States, to issue it, is a sufficient justification for holding the prisoner, without producing the papers or evidence on which the governor acted. (Id.)