"Upon the executive of the State rests the responsibility of determining, in some legal mode, whether [the one claimed] is a fugitive of the demanding State. He does not fail in duty if he makes it a condition precedent to the surrender of the accused that it be shown to him, by competent proof, that the accused is, in fact, a fugitive from the justice of the demanding State." 7

5 Taylor v. Taintor, 16 Wall. 366; 21 L. ed. 287.

6 Ex parte McKean, 3 Hughes (U. S.), 23; Ex parte Ammons, 34 Ohio St. 518. See 3 Fed Statutes Annotated, 79, note.

7Ex parte Reggel, 114 U. S. 642; 5 Sup. Ct. Rep. 1148; 29 L. ed. 250. Independent proof apart from its requisition papers that the accused is a fugitive from justice need not, however, be demanded by the governor of the surrendering State. Pettibone v. Nichols, 203 U. S. 192.

The governor cannot be compelled by judicial process, state or federal, to take action, but where he has acted, his action may be inquired into by the courts. Thus in Roberts v. Reilly8 the court say: "The Act of Congress (§ 5278, R. S.) makes it the duty of the executive authority of the State to which such person has fled, to cause the arrest of the alleged fugitive from justice, whenever the executive authority of any State demands such person as a fugitive from justice, and produces a copy of an indictment found or affidavit made before a magistrate of any State, charging the person demanded with having committed the crime therein, certified as authentic by the governor or chief Magistrate of the State from whence the person so charged has fled. It must appear, therefore, to the governor of the State to whom such a demand is presented, before he can lawfully comply with it; first, that the person demanded is substantially charged with a crime against the laws of a State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand; and second, that the person demanded is a fugitive from the justice of the State the executive authority of which makes the demand. The first of these prerequisites is a question of law and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus. The second is a question of fact, which the governor of the State upon whom the demand is made must decide, upon such evidence as he may deem satisfactory. How far his decision may be viewed judicially in proceedings in habeas corpus, or whether it is not conclusive, are questions not settled by harmonious judicial decisions, nor by any authoritative judgment of this court. It is conceded that the determination of the fact by the executive of the State in issuing his warrant of arrest, upon a demand made on that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof." 9

8 116 U. S. 80; 6 Sup. Ct. Rep. 291; 29 L. ed. 544.

9 See also Hyatt v. New York, 188 U. S. 691; 23 Sup. Ct. Rep 456; 47 L. ed. 657.