governor of a State or Territory to surrender upon a requisition made in accordance with the act of Congress has been emphasized by the supreme court of Georgia.1 In Leary's case, before a United States court, Choate, J., said: "The great weight of authority, as well as the obvious import of the language used, is that the Constitution established an absolute right to the surrender, when the case was one coming within the terms of the Constitution; that is, the case of a person charged with crime, who had fled from justice, and whose surrender was demanded by the proper authority." In a note to his last revision of his Commentaries, which was published in 1848, Chancellor Kent said: "I am not aware that there has been any judicial decision on this provision: and, as it stands, I should apprehend that, on the demand being made and the documents exhibited, no discretion remained with the executive of the State to which the fugitive had fled, and that it was his duty to cause the fugitive to be arrested and surrendered."3 In a letter written May 15, 1850, to the citizens of Newburyport, Massachusetts, Mr. Webster, referring to the act of 1793, said:4 "It will be observed that in neither of the two cases does the law provide for the trial of any question whatever by jury, in the State in which the arrest is made. The fugitive from justice is to be delivered, on the production of an indictment or a regular affidavit, charging the party with having committed the crime; and the fugitive from service is to be removed to the State from which he fled, upon proof, before any authorized magistrate, in the State where he may be found, either by witnesses or affidavit, that the person claimed doth owe service to the party claiming him, under the laws of the State from which he fled. In both cases, the proceeding is to be preliminary and summary; in both cases, the party is to be removed to the State from which he fled, that his liabilities and his rights may be there regularly tried and adjudged by the tribunals of that State, according to its laws. In the case of an alleged fugitive from justice, charged with crime, it is not to be taken for granted, in the State to which he has fled, that he is 1 Johnston v. Riley, 13 Ga. 97; 1853. 2 10 Ben. 197. guilty; nor in that State is he to be tried, or punished. He is only to be remitted for trial to the place from which he came." In the controversy between Governor Kent of Maine and Governor Gilmer of Georgia in 1839,1 it was conceded that, if the conditions of the act of Congress were complied with, the duty of surrender was absolute. This doctrine was laid down by the Supreme Court of the United States in Kentucky v. Denison, though it was held that the governor of a State was not compellable by mandamus to perform the duty.2 § 609. When Duty arises. The constitutional obligation in respect to the rendition of fugitives from justice being absolute, the next question to be considered relates to the conditions under which the duty must be held to exist. It was said in the case of Clark, before the supreme court of New York, that the fugitive was to be surrendered, under the act of Congress, on the following conditions: (1) He must be demanded by the executive of the State from which he fled; (2) there must be a copy of an indictment found, or an affidavit made before a magistrate, charging him with having committed the crime specified; (3) such copy of the indictment or affidavit must accompany the requisition, and be certified as authentic by the executive of such State. This statement has been literally or substantially followed in nearly all the cases since that time, though some of them contain a reservation as to proof of flight.4 § 610. Question of Guilt irrelevant. It is always held by the courts that the question of the guilt or innocence of the accused is immaterial. Such an inquiry is wholly incon1 Supra, § 563. 2 24 Howard, 99. See Ex parte Virginia, 100 U. S. 339, and 10 Alb. L. J. 130. 39 Wend. 212. 4 Ex parte Reggel, 114 U. S. 642; Knowlton's case, 5 Crim. L. Mag. 250; Ex parte Swearingen, 13 S. C. 74; State v. Richardson, 34 Minn. 115. For the discussion of the question of fleeing from justice, see supra, §§ 578, 589, 590. Ex parte Swearingen, 13 S. C. 81; People, ex rel., v. Pinkerton, 17 Hun, 199. Only these two cases are cited, but the cases are all to this effect. See also People, ex rel., v. Brady, 56 N. Y. 182; Wilcox v. Nolze, 34 Ohio St. 520; Matter of Clark, 9 Wend. 212. "It is settled that all inquiry into his guilt or innocence of the crime charged is wholly irrelevant in this proceeding. That question is to be investigated and determined by the courts of the State where the alleged crime sistent with the constitutional provision. In extradition there are two theories of surrender, according to one of which there must be prima facie evidence of guilt, and according to the other of which there need be only proof of the existence of a criminal charge against the alleged fugitive in the demanding State. In the rendition of fugitives between the States of the American Union the rule is established by the Constitution, which requires the surrender of the fugitive when he is "charged" with crime in the demanding State. This provision is interpreted by the act of Congress when it says that the requisition of the demanding executive shall be accompanied with a copy of an indictment found, or with an affidavit, "charging" the crime for which the rendition is sought. It is, therefore, the existence of a criminal charge against the fugitive in the demanding State or Territory, and not proof of his guilt or innocence, that, together with the demand and the evidence of fleeing, whenever such evidence may properly be required,1 gives rise to the obligation to surrender. § 611. Exercise of Judgment in surrender. But is the executive upon whom the demand is made bound to accept the indictment or the affidavit as constituting a criminal charge in the State from which the fugitive escaped? The act of Congress says that the indictment or affidavit shall be certified by the demanding executive as authentic. This is the only proof of authenticity provided, and is conclusive as to the verity of the paper.2 But is the certificate of the demanding executive that the indictment or affidavit is authentic also conclusive proof that it charges a crime in the sense of the Constitution and the act of Congress? The Supreme Court of the United States, in Kentucky v. Denison, said: "It will be observed, that the judicial acts which are necessary to authorize the demand are plainly specified in the act of Con was committed." Decision of Governor Hill, Matter of Mitchell, 4 N. Y. Crim. Rep. 596, 599; December, 1885. 1 Supra, §§ 570, 589, 590. 2 Ex parte Smith, 3 McLean, 103; Com. v. Denison, 24 How. 99; Ex parte Swearingen, 13 S. C. 81. gress; and the certificate of the executive authority is made conclusive as to their verity when presented to the executive of the State where the fugitive is found. He has no right to look behind them, or to question them, or to look into the character of the crime specified in this judicial proceeding." This language has been construed by the court of appeals of South Carolina in Ex parte Swearingen to mean that the duly certified indictment or affidavit is conclusive as to the existence of a valid criminal charge in the demanding State. At the same time the court also observed that the affidavit accompanying the return before it showed that the relator stood charged with the crime of riot, committed in the State of Georgia. It does not seem to be necessary, as a matter of logic, to hold that the certification of the indictment or the affidavit as authentic is also conclusive proof that the one paper or the other sufficiently charges the fugitive with crime. Nor does the fact that a duty is absolute and ministerial necessarily exclude all exercise of judgment. It may be argued that there is little need of requiring a formal demand on the executive of a State, and still less of requiring it to be accompanied with certain evidence, if he is bound to accept any sort of a paper that may be certified to him, as containing a valid and sufficient charge of crime. It may also be argued that to submit with the demand a document that does not substantially charge a crime is not a compliance with the act of Congress on the part of the demanding executive, and hence does not impose upon the executive upon whom the demand is made the duty of yielding to it. This view of the subject was very forcibly stated by Chief Justice Cartter, of the District of Columbia, acting as chief executive, upon a demand of the governor of North Carolina. While admitting that the duty to surrender was absolute, he held that it was not "ministerial" in the sense of excluding all exercise of judgment. It was not the province, he said, of the executive upon whom the demand was made to go into questions of pleading, but it was proper for him to examine the indictment or affidavit to see that a crime was substantially charged. He held that the indictment before him substantially charged a crime, and ordered the person demanded to be delivered up.1 The view of the subject taken by Chief Justice Cartter has since been expressed by the Supreme Court of the United States. 2 2. Executive Discretion. 3 § 612. Theory of Recent Origin. There has grown up in some of the States a theory of discretion which, although it has in several instances found legislative expression, appears to be at variance with the provisions of the Constitution and the act of Congress. We look in vain for the acceptance of this theory until the second quarter of the present century. Its appearance is contemporaneous with the spread of the agitation for the abolition of slavery, and between 1830 and 1840 we find it advanced in several cases involving offences against slave laws. By the statutes of some of the States, as by those of Alabama, it is expressly provided that, when the requirements of the act of Congress have been complied with, the person charged "must" be given up; and the usual tenor of such legislation is that he shall be surrendered upon evidence the same or substantially the same as that prescribed by the act of 1793. The theory of discretion, which is the reverse of the theory upon which the act of 1793 is grounded, first found legislative expression in Massachusetts, but not until a late day. Until 1801 there was no legislation in that State in regard to the delivery up of fugitives from justice. In that year an act was passed, entitled “An Act providing for the appointment of Agents for demanding and receiving fugitives from justice, and for defraying the expense of transporting them from other States in the Union to this Commonwealth." Following the title is a preamble in which, after a 1 In re Perry, 2 Crim. L. Mag. 84. See infra, § 616. 2 Roberts v. Reilly, 116 U. S. 80, 95. 8 Wharton's Cr. Pl. & Pr., 9th ed., § 34. The author of the work here cited, in some of the earlier editions of his work on Criminal Law, advocated the theory of discretion, but upon further examination he rejected it as being contrary to the Constitution. 4 Supra, §§ 523-525, 563. See also Kentucky v. Denison, 24 How. 99, cited in Roberts v. Reilly, 116 U. S. 90. |