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may have sought an asylum within its borders, carries with it the corresponding duty or obligation to deliver up to the demanding State (on its presenting specified papers) the criminal sought. If in some things unreliable, Austin may safely be endorsed when he declares that every right implies a corresponding obligation or duty.*
We think that the Supreme Court of Ohio have enthroned themselves upon an impregnable basis, as well as given to the Constitution and the law of 1793 an interpretation that accords perfectly both with the letter and spirit of the same, when they say :
"If the governor of one State makes a requisition on the governor of another State for the surrender of a fugitive from justice, and the case is shown to be within the provisions of the Constitution of the United States and the Act of Congress on the subject, no discretion is vested in the latter governor, but it is his imperative duty to issue his warrant of extradition."+
That the duty is obligatory, the office merely ministerial and not judicial, and that there is no discretion in the matter, is the doctrine that has ever obtained among lawyers, judges and text-writers.
It has long been well settled that an indictment found or an affidavit made, a copy of which has been certified to as authentic by the governor or chief magistrate of the State or territory where the indictment was found or the affidavit made-together with the proper demand, if manifestly within the prescribed form, are absolute evidence of crime, so far as extradition is concerned, and no tribunal outside of the State whose law has been infracted has any right or power to inquire into the truthfulness or sufficiency of the indictment or affidavit. And it is a duty expressly enjoined by the Constitution on all officers and all tribunals of neighboring States and territories, to give full faith and credit to these proceedings in a sister State or territory.
*Austin's Jurisprudence, Vol. I, Lecture 1.
† 3 Law Bulletin, 276. 19 Albany L. J., 10.
112 Mass., 329 and 410. 241 How. (U. S.), 107. 5 Serg. and Raw., 62. 56 N. Y., 187.
There are but three cases of any note on record in which this has not been done. Seward, while Governor of New York, and Dennison, while Governor of Ohio, each refused to honor a demand of the governor of a sister State for the delivery of an escaped slave; and very recently the governor of Massachusetts refused to honor the requisition from the governor of South Carolina for Hiram H. Kimpton, a fugitive from justice. With the first two of these three cases the public are sufficiently familiar. The facts in the last case are as follows:
At Westfield, Massachusetts, on August 7th, 1878, Hiram H. Kimpton was arrested as a fugitive from justice, who had fled from South Carolina, and was held until the arrival from Governor Hampton of a requisition for his delivery. The requisition, together with a copy of an indictment found by a grand-jury and the certificate of authenticity by Governor Hampton, were referred by Governor Rice to Attorney-General Train to examine and report on as required by the General Statutes of Massachusetts. * This reference of the papers to Mr. Train for his examination as to their form and adequacy, was construed by him to mean a regular hearing of the case; and the learned attorney-general of that Commonwealth, sitting as judge, in a foreign State, with no evidence and without the means of procuring any, save such as the alleged fugitive and his counsel thought proper to introduce, assumed the province of passing upon the sufficiency of an indictment found by a South Carolina grand-jury. His report to Governor Rice is as follows:
COMMONWEALTH OF MASSACHUSETTS,
To His Excellency the Governor :
BOSTON, Aug. 29, 1878.
SIR-On the 10th instant I received from his honor, the Lieutenant-Governor, a communication inclosing a requisition from his Excellency the governor of South Carolina upon your Excellency for the rendition of one Hiram H. Kimpton, an alleged fugitive from justice, and I was requested to make an examination
* Chap. 117, Sec. 2.
and report under the provisions of the General Statutes, Chapter 117, Sec. 2.
In compliance with the request, I have heard fully the authorities of the State of South Carolina and the respondent, Kimpton, both parties appearing by eminent counsel. All facts deemed by them to be material were put in evidence, and a thorough discussion of the law upon the case has been had. I transmit herewith a report of the proceedings at the hearing as a part of this communication for your Excellency's consideration.
It was claimed on behalf of South Carolina that the requisition complied substantially and formally with the provisions of the Constitution of the United States.* In aid thereof, the requisition is accompanied by a copy of the indictment against John J. Patterson, Miles G. Parker, and Hiram H. Kimpton, for a crime committed against the laws of that State, within the State, in March, 1872, which indictment was found in August, 1877; also, an affidavit that Kimpton is a fugitive from justice of that State, and is within the limits of Massachusetts, and the papers are certified by the governor of South Carolina to be duly authenticated; and therefore it was claimed there was no discretion reposed in your Excellency, and that it was your imperative duty forthwith to issue a warrant of extradition, and cause respondent to be delivered to the agent of South Carolina. Should I adopt this doctrine, and so advise your Excellency, I must assume the statute of Massachusetts, which has now been in force for a period of seventy-five years, in aid of the provisions of the Constitution of the United States for the rendition of fugitives from justice, to be an unconstitutional law. Many of the States have no statute on this subject, while many of them have a statute substantially like our own, and it is not improbable that a statute by a State upon this subject is unnecessary. But I shall not presume to declare so ancient a law as our own to be unconstitutional, nor to disturb the practice under it, which is now well settled and thoroughly understood.
The authorities which are relied upon by the learned counsel of South Carolina are entitled to great consideration, but they are controlled by a more recent decision in the case of Taylor v. Taintor, in which it is distinctly held that the executive of the State may exercise discretion in the rendition of a fugitive from justice. I am bound by the law of that case, as well as by our statutes, to inquire and report whether the party whose rendition is required is held in custody or is under recognizance to answer for any offence against the laws of this State, or of the United States, or by force of any civil process; and it is clear that if a party is so held, the executive may, at his discretion, decline to comply with the requisition. It is worthy of remark that in none
*Rev. Stat. U. S., Sec. 5275.
16 Wallace, 306.
of the cases cited was the question of executive discretion before the court, and its discussion is incidental, so that the doctrine claimed has never been judicially decided. The uniform practice of yourself and your predecessors, so far as I can ascertain, has been to exercise discretion in such cases, not only as to matters specifically named in the statute, but as to any matter which might or ought to control the judgment of the executive. A familiar illustration is to be found when a requisition is made for a party charged with the crime of obtaining property by false pretences. If it is manifest that rendition is sought to enable the prosecutor to collect a debt, and not with the intention of convicting an alleged fugitive of a crime with which he is charged, the uniform practice has been not to comply with the requisition. So, when an indictment has not been sought or found for several years after the alleged commission of a crime, unless satisfactory reasons appeared for a delay, and when an offence is so trivial in its character that it would be a perversion of this great power to put it in exercise, and when it appears that a requisition has been improvidently issued, or that it is for a purpose other and different from that which appears upon its face, a`warrant of extradition has always been denied. Other illustrations might be given of the exercise of discretion by the executive in this behalf, but those already given are sufficient for my purpose.
As I have already said, the practice has been uniform since the passage of the first statute, in the year 1801, and the practice in other States of the Union, as I am advised, is the same.
Upon the most careful consideration which I am able to give the question presented, I feel bound to advise your Excellency that Chapter 177 of the General Statutes is constitutional, and that it is your duty to exercise sound discretion in its administration. In the present case, I find, and so report to your Excellency, that the requisition is in due form of law, and that Kimpton is not held in custody, or under recognizance to answer for any offence against the laws of this State, or the United States, or by force of any civil process. Were this the whole of the case, I should advise your Excellency that a warrant of extradition might properly issue, but I find, further, that the crime with which Kimpton stands charged, was committed in April, 1872, and that no attempt was made to prosecute him or his codefendants until August, 1877; nor does it appear that there is any present intention to try them upon the indictment. It does appear that, for many months, negotiations have been going on between the authorities of South Carolina and this respondent, under which he was offered immunity if he would return to that State and volunteer as a witness in her courts, and that this offer was renewed after his arrest here.
Upon all the evidence, I am of opinion that the indictment, when found, was for an ulterior purpose, which does not appear, and not for the purpose of trying him for any supposed crime
2d Series: VOL. VI.-NO. I.
against the laws of that State. I, therefore, advise your Excellency that it is not expedient to comply with the request.
I am, very respectfully,
Your obedient servant,
CHARLES R. TRAIN.*
Governor Rice declined to honor the requisition, because in his judgment-which was in accord with that of the attorney-general-it was not the object in procuring the indictment to try the fugitive for the crime charged, but for another purpose-not because the requisition was in any way defective as fully appears from the following letter to Governor Hampton:
To His Excellency, Wade Hampton, Governor, Columbia, S. C.: SIR: I have the honor to acknowledge the receipt of a requisition from your Excellency, bearing date the 8th day of August, instant, requesting the rendition of one Hiram H. Kimpton, an alleged fugitive from justice. The requisition was referred to the Attorney-General of this Commonwealth, in compliance with the statute thereof, to examine and report whether the same was in due form of law, and whether, upon the facts, the same should be complied with; and that officer has reported to me, after a thorough examination of the law and of the facts in the case, that the practice of the executive of this Commonwealth has uniformly been to deny a requisition when it appears that the purpose of the requisition is other than, and different from, the trial of the alleged offender upon the indictment, a copy of which is annexed and made a part of the requisition. In the present case, in my judgment, the object in procuring the indictment against Patterson, Parker and Kimpton does not appear to be for the purpose of trying Kimpton for the crime charged against him, but for a different purpose. I feel it to be my duty, in the exercise of a sound discretion, to adhere to the practice of my predecessors, and I therefore respectfully decline to accede to your request.
I have the honor to remain
Your Excellency's obedient servant,
ALEXANDER H. RICE.
The evidence adduced before the learned AttorneyGeneral Train, was in substance to the effect that Hiram H. Kimpton, Miles G. Parker and John J. Patterson were jointly indicted in August, 1877, for a conspiracy in 1872 to bribe members of the South Carolina legislature; that in October, 1877, a requisition from Govornor Hampton was honored by * Daily Advertiser (Boston), September 22d, 1878.