xt76hd7npg3c https://exploreuk.uky.edu/dips/xt76hd7npg3c/data/mets.xml Knott, J. Proctor (James Proctor), 1830-1911. 1888  books b92-233-31280923 English Courier-Journal Job Printing Co., : Louisville, Ky. : Contact the Special Collections Research Center for information regarding rights and use of this collection. Habeas corpus. Argument of J. Proctor Knott in re Varney Hatfield et al., on habeas corpus before the United States district court of Kentucky, February 28, 1888 text Argument of J. Proctor Knott in re Varney Hatfield et al., on habeas corpus before the United States district court of Kentucky, February 28, 1888 1888 2002 true xt76hd7npg3c section xt76hd7npg3c 

A ER G 1_ M EO   N T



hznre VARNTEY HATFIELD ct at.,



             PEI ORT',E TIIlE


          OF 1J ENTUCKY.

          FEBRUIARY 2S, 1888.X!

            O'I,(  I-SV  I IIE
     PRINTED no. Till COlI .ER-J()V tNA. 'I ;ll l'RIN 12 \ tOljli \ '.





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I'/ re VARNEY HATFIELD et al.,



             BEF ORE TH1E


          OF NE&NTUCKY.

          FEBRUARY 28, 1888.

       I,.Jo ISV II, I,.E

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   MAY IT PLEASE TILE COURT: We are admonished by Holy Writ
that man that is born of woman is of few days and full of trouble;
he cometh forth as a flower and is cut downl; he fleeth also as a
shadow, and continueth not.
                                   To-day he puts forth
           The tender leaves o' hope; to-morrow blossoms,
           And bears his lslish ing honors thick upon him:
           The third came a trost, a killing frost;
           And when lie thinks, good, easy man, full surely
           His greatness is ripening,"
he falls, like autumn leaves, to enrich our mother earth.  I have
not the time, therefore, even if I had the inclination, to follow thle
learne(l counsel who opened the case for the prisoners, in his excur-
sions beyond the legitimate domain of the present inquiry, either
to (lisdss questions which the Court has already expressed its de-
termination not to consider; or to argue a supposititious case of
murder upon an imaginary slate of facts; or to insist that the Court
should not assume authority to twist the well-settled principles of law
awry, in order to promote the (levelopment of the marvelous mineral
resources which lie on either side of the line between this State and
West Virginia.
   On the contrary, it is my purpose, in the remarks I shall have
the honor to submit in relation to the matter at bar, to be as brief as
II can, consistently, with the importance of the principles involved;
and I trust in dealing with those principles I shall be controlled en-
tirely by that decent respect and perfect candor that should always
characterize the conduct of counsel towards courts of justice of what-
ever dignity or degree.
   If, however, I should advert to propositions which may have
been already discussed, or seem at any time to dwell at undue
length upon principles with which your Honor is thoroughly familiar,
it will be through no lack of confidence in your Honor's legal Thtelli-
gence, nor from any disposition to abuse the courtesy or trifle with the
patience of the Court, but nerely to preserve, as well as I can, the se-
(quence of my argument.
                                ( 3)


   There is, as your Honor is aware, a vast variety of cases in which
relief under the writ of habeas corpus can only be sought in the author-
ized tribunals of the State Government; while there are others in
which it can be afforded by the courts of the United States alone;
a-(ld vet a third class, in which either may act without encroaching
u pon the authority of the other.  But to undertake in this discussion
to, draw the line which limits the jurisdiction of the two Governments
iii such cases generally, or to explore the territory in which their or-
ganized agencies may act concurrently, would not only be an idle dis-
play of legal reading, but an unnecessary waste of tine.
   The Federal Constitution provides that the judicial power of the
United States shall extend to all cases in law or equity arising under
that Constitution, or the laws and treaties made by their authority;
and Cong-ress has by law conferred upon this Court the power to issue
writs of habeas corpus in all cases falling within the purview of that
provision, wvhich may occur within the territorial limits of its jurisdic-
ti:n  It is enough, therefore, for the purposes of this contention, to
say that, unless the facts presented in the case under consideration
blring it within that category, the Court has no power to grant the re-
liOf sougllt.
                     WHAT THEN ARE TIHE FACTS
   It appears from the jailer's return, and it is not controverted, that
each of the prisoners at the bar was indicted at the September term,
1882, of the Circuit Court for Pike county, Kentucky, in three cases,
fc r the crime of willful and deliberate murder, alleged to have been
committed by them in that county; that bench warrants for their ap-
pDrehension to answer these indictments were issued and placed in' the
hands of' the Sherifr, who, by virtue thereof, arrested them in that
county and delivered them, together with copies of the warrants under
which they were arrested, to the jailer; that the jailer, as was his duty,
received and confined them in the jail of the county where they were
held by him in custody in obedience to the mandates of those warrants,
A here they were found v hen your Honor's writ was served upon him.
                   THE CAPTURE IN WEST VIRGINIA.
   It is alleged, however, and the fact is not disputed, that they were
violently seized, without legal process, in the State of West Virginia,
where they were domiciled, and brought by force, and against their
Will, into the State of Kentucky, and that the Governor of West
Virginia has demanded that the Governor of Kentucky shall release


them from their imprisonment in the jail of Pike county, and give
them safe conduct back into the State in which they were captured:
and that the Governor of Kentucky has declined to accede to that
demand ; and in view of these filcts it is claimed that their subsequent
(letention by the jailer of Pike county, in pursuance of regular proc-
ess in the name of the Commonwealth, to answer to the indictments
against them for the crime of murder alleged to have been committed
by them in that county, was in violation of the Constitution and laws
of the United States, and that your Honor should consequently dis-
charge them without delay. It is for us to see, therefore, whether
there is any valid reason by wvhich a proposition so startling and ex-
traordinary can be sustained.
                       THE (QUESTION STATED.
   Neither the guilt nor innocence of the prisoners, nor the atrocity
of the crimes with which they are charged, nor their nationality or
citizenship is at all pertinent to this inquiry. Conceding that their
capture in West Virginia and deportation into Kentucky were without
warrant, by force, against their will, and totally without legal or moral
justification, after all the naked. question is: What provision of the
Federal Constitution, or what law made by authority of the United
States has been violated, or will be violated, by their detention in the
jail of Pike county, under the authority and in obedience to the Com-
monwealth of Kentucky, to answer indictments for crimes alleged to
have been committed against her laws.

   What reasonable answer can be made to this question, other than
that no such provision can be found at all, I confess my utter inability
to conceive, notwithstanding I listened with the most profound interest
and attention to the verv earnest remarks of the learned counsel
(MR. ST. CLAIR) who opened this discussion. He argued, however,
if I understood him correctly, that the only right which a State has to
claim the arrest of a fugitive from its justice, who may be found in the
territory of another, is under the third clause of the second section of
the fourth article of the Constitution of the United States, and that
such claihn can only be asserted in the manner therein prescribed; that
they were citizens and residents of the State of West Virginia; that
the State of Kentucky has obtained custody of them through a differ-
ent method, namely: by having them seized under a regular writ and


 confined in her jail after they had been brought within her jurisdiction
 by parties acting without her authority; and that, therefore, their
 detention under its writ is in violation of the provision of the Consti-
 tution to which I have just referred, and of the law enacted by Con
 gress to carry the same into effect.
    If this is not a fair statement of the argument for the prisoners on
 this point, there can be no argument about it. But admitting every
 syllable of the premises stated to be true, they utterly fail to warrant
 the conclusion claimed on the other side.
    In the first place it must be borne in mind, that there is a material
 difference between the action of a State and the act of any number of
 individuals, even thou 'gh they may be its own citizens. A State can
 act only through its legally authorized agencies,, whose power and
 duties are prescribed by law, and if any of the agencies thus consti-
 tuted transcend the limits of its presciIbed authority, his act becomes
 his own wrong, and upon no p)ril]ciplc of reason or la1w can be imputed
 to the State ast an entity. The whole argument may be ans ered,
 therefore, by a simple statement of the fact, that however flagitious
 the seizure of these parties in the State of \irginia may leave been, it
 was neither advised, authorized nor commanded by the State of Ken-
 tucky, but was effected by a party of unauthorize(l lpersons, each acting
 under his own individual wvil; and that the State of Kentucky did not
 pretend to act in the matter at alh until after the prisoners had been
 brought withiii her own jurisdiction, where they wevre seized and de-
 tained by her officers, in pursuance of her own laws.
   Nor can it make a particle of difference, sir,where their citizenship
may have been.   It is true, as stated by Mr. St. Clair, that inder the
Constitution of the United States, the citizens of each State are entitled
to all the privileges and immunities of the citizens of the several
States. iNobody ever denied that.  But certainly it can not be claimed
that a citizen of one State is entitled to an' greater imlnlunity in
another State than that State guarantees to its own citizens, for it is a
well-settled p)rinciple, un iversall - recognized unlner the law of nations,
that every person whether citizen, denizen or alien who violates the
.iaws of any State is amenable to pumnishmnent under those laws. It is
immaterial therefore whether these pl)isoners were citizens of Kentucky
or of West Viroinia, or were the subjects of a foreign government;
once within reach of criminal process in this State, no matter how,
whether through the regular process of extradition, or by, the act of


unauthorized individuals, it ha(l a right to seize and hold them to
answer for crinies committed against its laws.
    My learned friend, however, asserted more than once in his argu-
inent that there is no analogy betweenl principles of international law
regulating the rendition of fugitives between independent nations,
and those whichl govern interstate extradition under the Constitution
and laws of the lUnited States.  On the contrary, with all (lefererce
to hois superior learning, I think I shall be able to show that they are
identically the same.
                  R ULES 'NDER THlE LAW OF NATIONS.
    Let us, therefore, look into the question a little further. It is true,
as your Honor wvell knows, that as between independent sovereignties,
in the absence of any conventional regulation by treaty or otherwise,
neither can demand of the other Cl8 a matter of vifiht the rendition of a
futitive from its justice, however atrocious his crime may be. His
extra(Iition may be requested as a matter of coin ity, but not clailaed as a
legal right on the part of the sovereignty asking it; and the question. of
his surrender unnder such circumstances rests entirely in the discretion
of the sovereign of whom the request is made ; and not in any Slip-
posed right of sanctuary vested in the fugitive himself.  Where there
are treat y stipulations, however, between two independent sovereignties
regulating the rendition of fuoitives from one to the other, there is. in
every case within the purview of the treaty, an absolute right to
demand oln the one hand, and  . correlative duty on the other to sur-
renider the fugitive demanded. And where that right is sought to be
enforced, it must, of course, be done in the method, and according to
the terms of the treaty, otherwise the party upon whom the demand is
made is unrder no o1ligations, either legal or moral, to comply with it.
   It must not be forgotten, nevertheless, that the existence of a treaty
of extradition between two sovereigns, in nowise diminishes the right
of either to surrender a fugitive to the other in any other manner than
that provided in the treaty. It may seize him, and deliver him to his
pursuers, or permit them to take him back to the jurisdiction against
whose laws he has offended, with or without the formality of extra-
dition as provided in the treaty at its own discretion, and it will not
lie in the mouth of the fugitive to complain that his right of asylum
has been violated.
                         RIGHT OF ASYLUM.
   The truth is, he can have no such right. It is impossible in
the very nature of things. If he has, there can be no such thing


as the right of extradition without the fugitive's consent, under any
circumstances whatever.   The two rights can not be       reconciled
by any known rule of logic, or upon any principle of common
reason. If one exists, the other can not. But, sir, the responsibility
of the criminal to the sovereignty whose laws he has feloniously
violated, attaches to his person and follows him wherever he may go,
regardless of his citizenship or nationality, and whensoever and howso-
ever the offended sovereignty may get him in custody, without itself
being in the wrong, it has a right to hold him for trial. It clings to
him anywhere.   He can only be freed from its presence by death, or
the expiation or pardon of his crime. If he should take the wings of
the morning and fly to the uttermost part of the earth, it will be there
like a threatening Nemesis to confront him. If he should say, "Lo!
the darkness shall cover me," he will find it still with him, in the dark-
ness as in the light; and if he should descend into hell, the conscious-
ness of that responsibility, uncanceled in life, will be with him to add
sharper tortures to his deep damnation.
    It should be remembered also that while the most punctillious ob-
servance of good faith and national honor should be exercised in all
cases of extradition under a treaty, it is universally held that the treaty
itself-unless it contain some special provision to that effect-will not
be considered as violated, if the citizens or subjects of one of the con-
tracting parties, acting without its authority and without regard to
the method therein prescribed, should kidnap and carry away a fugi-
tive from its justice found within the dominions of the other. In such
a case the only remedy would be by a proceeding against those guilty
of the trespass, by the Government against whose laws they offended, and
not against the Government holding the party seized to answer for hav-
iDg violated its criminal laws. All that either reason, honor, justice or
law could require under such circumstances would be the rendition of
the kidnappers to the Government whose laws they had violated, for
trial and punishment under those laws. If this were not so; if gov-
ernments were to be held responsible for all the lawless acts of their
citizens, or subjects, committed without their authority, within the do-
minions of another, it is easy to see that it would be impossible that
there could ever be a day's peace between any two civilized nations
upon the earth, upon any other terms than absolute non-intercourse;
as reckless, lawless, " landless resolutes " from almost every country
on the globe are constantly committing crimes within the dominions
and against the laws of other governments.


   Such would be precisely the rules by which the conduct of the
States of this Union toward each other would be regulated if they
were independent nations. But when they adopted the Constitution
of the United States they surrendered the sovereign powers of levying
war, concluding peace and making treaties, either with foreign nations
or between each other; and, so far as the subject of extradition among
themselves was concerned, accepted the provision contained in the sec-
ond section of the fourth article of the Constitution, as follows:
   " A person charged in any State with treason, felony or other crime,
who shall flee from justice and be found in another State, shall, on (le-
mtiand of the executive authority of the State from which he fled, be
delivered up to be removed to the State having jurisdiction of the
crime. "
   This provision conferred upon each State the right to demand,
through its executive authority, a fugitive from its justice, when found
in another, and imposed the correlative duty upon the executive au-
thority upon whom the demand should be made to surrender him up,
precisely as in case of an extradition treaty between two independent
nations; and in order to prescribe a uniform method in which this right
should be asserted, on the one hand, and the corresponding duty per-
formed on the other, Congress passed the act of February 12, 1793,
which, as your Honor is aware, remains the law to this day, providing
that the demand should be accompanied by a copy of an indictment
found, or an affidavit made before some magistrate, charging the person
demanded with having committed treason, felony or other crime, and
certified to be authentic by the executive authority making the de-
mnand; and on the other hand requiring the executive authority of
whom a demand is thus made to cause the fugitive to be arrested and
delivered up as therein provided.
   Now, your Honor will observe that this provision of the Constitu-
tion, and the statute enacted to give it effect, refer exclusively to the
rights andl duties of the several States as such, acting respectively
through their chief executive authorities; and neither has the remotest
reference, directly or by implication, to the right of a State to hold
a person charged with crime against its laws who may be brought with-
in its jurisdiction by other means. They do, however, afford a State
from whose borders a person may be kidnaped, the amplest and the
easiest means for vindicating its sovereignty, by demanding the offend-


 er and having him delivered up to be punished for a violation of its
    Of course, when a State formally asserts its right to reclaim a fui-
 gitive from its justice under this provision of the Constitution, it must
 do so precisely in the manner prescribed by law, or the proceedings
 will be void.  As if a judge of a court should make the demand,
 insteadi of the Chief Executive authority, or the demand should be
 made by a Governor without producing a copy of an indictment
 found, or affidavit made, charging the person demanded with the com-
 mission of treason, felony or other crime, or should fail to certify the
 copy produced to be authentic; a failure to comply with the law in
 any of these particulars would render the whole proceeding nugatory
 if its validity should be tested on habeas corpus, either in the State
 where the arrest was made, or in any other through which the fugitive
 might be carried en route to the State having jurisdiction of his
 crime. And that for the obvious reason, that a warrant issued by a
 Governor under such circumstances would be void for want of legal
 authority in him to act.  But once in the jurisdiction of the State
 against whose laws he has offended, no more illegality or irregularity
 in the manner in which he was brought there can be held as all
 available excuse against his being held for trial.
    This is precisely the doctrine held in the case of Joe Smith, the
Mormon prophet, in 3 McLane, cited by the learned counsel, as well
as by the Supreme Court in the Ker case, to which I will presently
refer. As your Honor well remembers, no doubt, the points and
the only points determined in the Smith case were, that as the
case arose under the Constitution and laws of the United States, the
District Court of the United States for the district of Illinois had ju-
risdiction to issue the writ of habeas corpus, notwithstanding the offi-
cers concerned in the attempted extradition of Smith in pursuance of
-hose laws were State officers; and that, inasmuch as the affidavit
-,which accompanied the requisition issued by the Governor of Missouri
showed upon its face that no crime had been committed by the accused
in that State, the warrant issued thereon by the Governor of Illinois
was without authority and consequently void. And so in Ker's case,
as we shall presently see. The Supreme Court held that, while an
irregularity in the extradition proceedings between the Governors of
California and Illinois might have been available on habeas corpus to
test their validity in California, or in any State through which he was


carried to Illinois, it would afford no ground for his discharge from cus-
tody without trial when once within the jurisdiction of the court hav-
ing cognizance of the charge alleged against him, as is the case here.
    Thus far, sir, I think I have asserted no principle which is not
abundantly supported by both reason and the authorities to which I
will presently invite your Honor's attention; and if I have succeeded
in making myself understood up to this point, the Court will not only
be able to appreciate more fully the perfect harmony which pervades
the unbroken line of judicial opinion upon this subject, but will have
no difficulty in seeing that the premises I have laid down lead inevi-
tablv to the establishment of the doctrine asserted over and over again
in the cases to which I am about to refer, and which goes to the very
pith and marrow of the pending proceeding, namely: That no matter
by what method private persons, acting without authority from the
State, may bring within its jurisdiction the body of a fugitive charged
with a violation of its laws, it has a riyht to hold him to answer for his
   It is true that a person brought by fraud or force within a certain
jurisdiction in order that process may be served upon him in a civil
action is not bound thereby, because no man can take advantage of
his own wrong, and it was quite unnecessary for my learned friend
(authorities) in 12 Piekering, to establish a principle which, I suppose,
no one at this day would think of denying; but a State is never
responsible for, nor bound by, the acts of unauthorized individuals,
and such acts, whether right or wrong in themselves, can not be
impiuted to it, nor take away its sovereign authority to try and punish
a violator of its laws, when once within its custody.

                             SiTHI3 CASE.
   In proof of the soundness of these principles, I will now call your
Honor's attention to a number of carefully considered cases, which
have been so frequently cited with approval by courts of the highest
intelligence that they may be taken as authoritative, and as I prefer
to take them chronologically I[ will begin with Smith's case, decided
by the Supreme Court of South Carolina in 1829, and reported in 1
Bailey, S. C., 2993. Smith had been pardoned on condition that he
Should leave the State and not return. He broke the condition, how-
ever, and was arrested in North Carolina without warrant and forcibly
taken back to South Carolina for re-imprisonment under his original


sentence. He sued out a writ of habeas corpus for his release, which
being refused, he appealed to the Supreme Court, which affirmed the
judgment. The Court said, through Judge Johnson:
    "The third and only remaining question is whether the prisoner is
entitled to be discharged in consequence of having been illegally
arrested in North Carolina, and brought into this State. The pur-
suit of the prisoner into North Carolina and his arrest there was
certainly a violation of the sovereignty of that State, and was an act
which can not be commended. But that was not the act of the State, but
of a few of its citizens, for which the Constitution of the United States
has provided a reparation.  It gives the Governor of that State the
right to demand them of the Governor of this, and imposes on the
latter the obligation to surrender them ; but until it is refused there
can be no cause of complaint. And supposing it otherwise, and that'
the outrage furnishes just cause of complaint, and that North Carolina
had declared war against us, how can the Court know that the restora-
tion of the prisoner would appease her" Or if it did by what pirocess
would the Court send him there       The case then is this:  A
felon convict flies into North Carolina to avoid the execution of his
sentence, and is pursued and brought back, and althougfh the manner
of doing it was illegal, the thing in itself was riqht, and exactly what
North Carolina was bound to do if it had been properly required."

                          BREWSTER'S CASE.
  In the case of the State vs. Brewster, determined by the Supreme
Court of Vermont in 1835 (7 Vt., 118), Judge Phelps for the Court
   "It is a well-established principle of international law that a for-
eigner is bound to regard the criminal laws of the country in which he
may sojourn, and for any Offense there committed he is amenable to
those laws. In this case the offense, if committed at all, was com-
mitted within our jurisdiction and is punishable by our laws. The
respondent, though a foreigner, is, if gtilty, equally subject to our
jurisdiction with our citizens. His escape into Canada did not purge
the offense nor oust our jurisdiction; being retaken and brought ill fact
within our jurisdiction, it is not for us to inquire by what means, or in
what precise manner, he may have been brought ;within the reach of
justice.  It becomes then immaterial whether the prisoner was brought
out of Canada with the assent of the authorities of that country or not.
If there was anything improper in the transaction, it was not that
the prisoner was entitled to protection on his own account. The il-
leg-ality, if any, consisted in the violation of the sovereignty of an
independent nation. If that nation complain, it is a matter which
concerns the political relations of the two countries, and in that aspect
the subject is not within the constitutional powers of this Court.
Whether the authorities of Canada would have surrendered the prisoner
or not upon due application is a question of national comity resting in
discretion. Their power to do so will not be questioned. If they have

the power to surrender him, they may permit him to be taken. If
they waive the invasion of their sovereignty, it is not for the respondent
to object, inasmuch as lie is, for this offense, by the law of nations
amenable to our laws."
                             DOW'S CASE.
    The next case in chronological order is that of Dow, determined in
the Supreme Court of Pennsylvania in 18.51. It appears that Dow
had been seized in Michigan on a charge of forgery and taken into
Pennsylvania without a warrant and regardless of the method prescrib-
ed by the Constitution and laws of the United States for the extradition
of fugitives from justice, notwithstanding there had been a requisition
for his rendition upon the Governor of Michigan, who had issued his
warrant for that purpose.  In Pennslvania he set up the illegality of
his arrest and deportation from Michigan as grounds for his release un-
der a writ of habeas corpus. It will be observed that the only point
relied upon in Dow's case for his release was precisely the one made in
this case, namely: That the Constitution and laws of the United States
having provided a method of extradition between the States, that method
ex vi ternmini excluded all other methods, and the extradition of Dow not
having been in strict conformity to that method, his imprisonment was
ipsofacto illegal, and Dow entitled to be discharged.
   The opinion was delivered by Chief-Justice Gibson, and I desire to
say, sir, that no man ever has lived or ever will live with a higher ad-
miration of the genius and learning, or with a profounder respect for
the private virtue which adorned the character of that illustrious jurist
than I have myself. I must, nevertheless, be permitted to say, that
while his opinion in this case is, in all other respects, as bright and
faultless as a gem of the rarest water, it opens with the most remark-
able dictui   ever uttered by an enlightened Court, or among civilized
men. It is embraced in this one sentence: "Had the prisoner's release
been demanded by the Executive of Michigan we would have been bound
to set him at large !" And this dictim, totally uncalled for by the case
in which it was uttered, and therefore dead-dead, sir, as the mummy
of Rameses II., is made the sheet anchor of the prisoners' hopes in the pro-
ceeding at bar. No reason is given for this most extraordinary utter-
ance, andl no authority cited in support of it. I ask counsel, therefore,
to explore the entire range of civilized jurisprudence and point out if
they can a solitary rational principle upon which a court could be
justified in liberating a prisoner held at its bar to answer for a crime
clearly within its jurisdiction at the mere behest of a foreign power.

 Go to vonder library, ransack the vast and varied treasurers of legal
 wisdom garnered there, and show to this Court, if you can, a single
 principle of enlightened comity, or a solitary rule of law, State,
 national or international which authorized the Governor of West Vir-
 ginia to make such a demand upon the Governor of Kentucky, or em-
 powered the Governor of Kentucky to comply with it when made,
 except by pardoning the persons demanded. What is the Governor of
 West Virginia  Is he paren., patrie . Is he an autocrat embodying in
 his sacred person the entire sovereignty of his State, or is he the
 Governor of a free Commonjwealth, which has limited his powers, and
 prescribed his duties by law  If the latter, will gentlemen please
 point out some provision in their own constitution or statutes, with
 which they are doubtless familiar, which either authorized or required
 him to make such an extraordinary demand upon the Governor of
 Kentucky  And if they find that the Legislature of their State has
 given him such authority, or imposed upon him such a duty, will they
 go farther, and show some legal principle iwhich requires this or any
 other Court to release these prisoners because the Governor of Ken-
 tucky may have declined to accede to such a demand
    Do counsel find the right of the Governor of WVest Virginia to
make the demand, and the duty of the Governor of Kentucky to obey
it under the treaty-making powers inherent in independent sovereigities
These States have no treaty-making powers without the consent of
Congress, and whatever Vest Virginia may have done I am sure that
Kentucky has never asked, nor dreamed of asking, that consent to a
proceeding so anomalous andl unheard of.
   It is true, as Chief-Justice Gibson says in this opinion, a State is
bound to fight the battle of its citizen when he bath his quarrel just,
but it must fight that battle according to the rules and with the peace-
ful weapons of the