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New York and the counsel for the accused, does not satisfy me 'beyond a doubt that the object of this criminal proceeding is not 'to collect a private debt.' Notwithstanding the declaration of the prosecuting creditors themselves, there is evidence, entitled to weight, which goes to show negotiations and offers with and by the party, whose affidavit, as Claflin & Co.'s collector, is attached to the requisition, which, if consummated, were to be the basis of an abandonment of this prosecution.

"Under such circumstances, no warrant of arrest should, in my judgment, have been granted. But as a mandate was inadvertently issued, should you agree with my conclusions, I would advise the recall of the warrant and the discharge of the accused, and a direction to the officer having it in charge for execution to return it to the executive department without delay."

Acting upon this advice, the governor declined to issue a warrant of surrender.1

Viewed purely as a matter of reason, apart from the provisions of the Constitution and the act of Congress, we should not suppose that rules adopted by the executive department of a State to govern applications for requisitions would apply as a matter of course to requisitions emanating from other States. That the direct responsibility under which the authorities of every government stand in the exercise of a comprehensive supervision over the enforcement of its criminal laws, is not transferred to the authorities of another government when they are asked to deliver up a fugitive from justice, is recognized in all extraditionary arrangements. The very fact that such arrangements are made presupposes the existence of good faith and mutual confidence in the administration of justice within the jurisdiction of each of the contracting parties. Hence it would be an anomaly to find in an extraditionary arrangement a stipulation that the party applying for the surrender of an alleged offender should be required to show beyond a reasonable doubt that the application was made in good faith, and not for an ulterior purpose. That such a stipulation was deemed necessary, or even expedient, would be a powerful argument against the conclusion

1 Supra, § 585.

of any arrangement at all. But, as between the States of the United States, all uncertainty on the subject seems to vanish, when we consider their intimate Federal relations, and their categorical duty under the specific provisions of the Constitution. 1

Moreover, it may be observed that there exists in the State of New York, in respect to applications for requisitions, a rule similar to that cited by the attorney-general of Maryland; and a rule of the same purport has been adopted in many other States. While the absence of such a rule in the demanding State would not be a ground for suspicion and distrust, and would not excuse a refusal to honor its demand, yet the existence of the rule is, as an evidence of care in granting requisitions, only an additional reason why the constitutional duty to comply with them should be promptly and strictly kept.

The reference in the opinion of the attorney-general of Maryland to the fact that Juhn was a citizen of that State, does not appear to have been intended to convey the impression that the Constitution admits of any discrimination in the treatment of requisitions on that ground. The question of citizenship does not enter into the subject. It is obviously excluded both by the Constitution and the act of Congress.

§ 616. Cannot be presumed that Fugitive will not have a fair Trial. - Chief Justice Cartter, of the District of Colum

1 On the subject of the constitutional provision, it is pertinent to quote in the present relation the following passage: "For this was not a compact of peace and comity between separate nations who had no claim on each other for mutual support, but a compact binding them to give aid and assistance to each other in executing their laws, and to support each other in preserving order and law within their confines, whenever such aid was needed and required; for it is manifest that the statesmen who framed the Constitution were fully sensible, that from the complex character of the government it must fail unless the States mutually supported each other and the general government; and that nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a State, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the State, to repeat the offence as soon as another opportunity is offered." Taney, Ch. J., delivering the opinion of the Supreme Court, in Kentucky v. Denison, 24 How. 66, 100.

bia, acting, as chief executive of the District, upon a demand of the governor of North Carolina, refused to assume that the fugitive would not have a fair trial. In 1889 the governor of South Carolina made a requisition upon Governor Beaver, of Pennsylvania, for the surrender of one John Yeldell, alias E. F. Flimon, charged with the commission of a murder in the former State in the Presidential campaign of 1884. Shortly after the date of the alleged murder, Yeldell went to Pittsburg, in the State of Pennsylvania, where he took the name of E. F. Flimon and became a clergyman. Strong opposition was made to his surrender on the ground that, if returned, he would not have a fair trial. Governor Beaver, however, surrendered him, and he was tried and acquitted. 2

The theory

§ 617. Objections to Theory of Discretion. that, a legal demand having been made, the executive authority to whom it is presented may inquire into the circumstances of the case and, in accordance with his notions of policy, of expediency, of propriety, or of the merits of the demand, refuse to grant it, is open to the following objections: (1) It is inconsistent with the mandatory provision of the Constitution, that 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 demand of the executive authority of the State from which he fled, be delivered up. (2) It is inconsistent with the positive terms of the act of 1793, which was a "contemporary construction" of the constitutional provision. (3) It involves the exercise by the executive of one State of a supervision over the criminal procedure of other States. (4) It violates that clause of the Constitution which requires that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." 5 (5) By rendering 1 In re Perry, 2 Crim. L. Mag. 84.

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2 Philadelphia Times, July 23, 1889; Washington Post, August 6, 1889 ; New York World, August 12, 1889.

3 Supra, §§ 607, 608.

4 Roberts v. Reilly, 116 U. S. 80.

5 Art. 4, section 1.

It should not be forgotten that the clause requiring the

nugatory the specific provision that fugitives from justice shall be given up, it destroys one of the methods by which the framers of the Constitution sought to "establish justice," -one of the declared general purposes of that instrument. (6) It admits the consideration of the question of criminality, in violation of the Constitution and the act of Congress, which only require that the fugitive shall be duly charged with crime. (7) It enfeebles the administration of justice by rendering it uncertain, in that it substitutes for a rule of law the will or caprice of an individual.1 (8) It permits the authorities of the demanding State to be put upon trial on a charge of bad faith. (9) In opening the way to impeachment of motives and the attribution of dishonesty of purpose, it gives rise to recriminations, creates resentments and fosters ill-will, and thus prevents the realization of that "more perfect Union," which the Constitution was designed to secure.2 (10) For the reason that it substitutes will for law, admits an inquiry into motives, and puts the demanding authorities on trial, it renders the relations of the States in respect to the delivery up of offenders less intimate and desirable than those of independent and foreign nations bound by treaty.

§ 618. Surrender not obligatory where Fugitive is held on Criminal Charge. The case of Taylor v. Taintor, before the Supreme Court of the United States in 1872, has sometimes been cited to sustain the view that rendition is discretionary. If this had been so, it would have overruled the case of Kentucky v. Denison, which has nevertheless twice been cited as an authority by the Supreme Court 5 since the case of Taylor

delivery up of offenders is in section 2 of the same article, and forms part of the general system.

1 "Every man hath his own particular point of view, and, at different times, sees the same objects in very different lights. The spirit of the laws will then be the result of the good or bad logic of the judge; and this will depend on his good or bad digestion, on the violence of his passions, on the rank or condition of the accused, or on his connections with the judge, and on all those little circumstances which change the appearance of objects in the fluctuating mind of man." Beccaria on Crimes, Ingraham's Translation, 2d ed., p. 23.

2 Supra, § 613.

3 16 Wall. 366, 370.

4 Supra, § 613.

5 Ex parte Reggel, 114 U. S. 642; 1884. Roberts v. Reilly, 116 U. S. 80: 1885.

v. Taintor. It is thought that an examination of what was actually decided in this case will show that it is not an authority for the theory of discretion. The facts are as follows: Taintor, the defendant in error, brought suit as Treas urer of the State of Connecticut against Taylor and other persons on a recognizance into which they had entered for the appearance of one McGuire to answer a criminal charge. After his release on bail McGuire went into the State of New York, where he was arrested on a requisition of the governor of Maine, and surrendered to the authorities of that State on a charge of burglary. When the time came for his trial in Connecticut he was still in custody in Maine on that charge. Taintor thereupon brought suit and obtained judgment upon the recognizance in the superior court of Fairfield county, Connecticut, and this judgment was affirmed by the supreme court of that State. The case was then brought on a writ of error before the Supreme Court of the United States.

The opinion of a majority of the court was delivered by Mr. Justice Swayne, who held that the surrender of McGuire by the governor of New York was not an act of the law which released the sureties in Connecticut. In arguing this point he adverted to the fact that McGuire, if he had remained in Connecticut, would probably not have been given up, being charged with crime in that State, and in this relation said:

"Where a demand is properly made by the governor of one State upon the governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter State have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied. The duty of obedience then arises, and not before. In the case of Troutman, cited supra, the accused was imprisoned in a civil case. It was held that he ought not to be delivered up until the imprisonment had legally come to an end. It was said that the Constitution and law refer to fugitives at large, in relation to whom there is no conflict of jurisdiction."

The statement that the duty to surrender is not absolute and unqualified, but depends upon the circumstances of the case, 1 Infra, § 619.

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