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to the effect that Kimpton was a fugitive from the justice of South Carolina, and within the limits of Massachusetts. These papers were certified by the governor of South Carolina as authentic, and it was claimed that it was the duty of the governor of Massachusetts under the Constitution and the act of Congress forthwith to deliver the fugitive up. "Should I adopt this doctrine," said the attorney-general, "I must assume that 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." He further said that the practice of exercising discretion had "been uniform" in Massachusetts "since the passage of the first statute, in the year 1801," and declared that the Supreme Court of the United States in the case of Taylor v. Taintor had "distinctly held" that the executive of a State might "exercise discretion in the rendition of a fugitive from justice." After citing several classes of cases in which the executive of Massachusetts had been accustomed to exercise discretion, the attorney-general concluded his report as follows:

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 co-defendants until August, 1877; nor does it appear 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

1 16 Wall. 366.

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 against the laws of that State. I therefore advise your Excellency that it is not expedient to comply with the request.

I am, &c.,

CHARLES R. TRAIN.1

On August 30, 1878, Governor Rice wrote to Governor Hampton, informing him of the action that had been taken upon the requisition, and of the substance of the report of the attorney-general, and said:

"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.'

2

On August 30, the day on which the letter of Governor Rice was written, Kimpton was released from jail and went free. On September 24 Governor Hampton addressed a letter to Governor Rice in which, after expressing regret that his absence had delayed his reply to the communication of the latter, and referring to the demand for Kimpton's rendition as having been made in accordance with the Constitution and the act of Congress, he said:

"I regret that the chief executive of the great State of Massachusetts should have committed so flagrant a violation of the supreme law of the land, a violation irreparable in its nature, as this State, suffering thereby, has no possible redress. Had you confined yourself to giving a simple refusal to surrender the fugitive, I should make no further comments upon your letter, as the

1 2 Va. L. J. 579; New York Times, Aug. 31, 1878.

2 New York Times, Aug. 31, 1878.

disregard of the Constitution by the executive authority of one State concerns the whole people of the United States. But, inasmuch as you have seen fit to base your action on the ground that, in your 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, it is my duty, as the governor of South Carolina, to add that your statement is entirely unwarranted, and to repel the unworthy imputation, as I do, with indignant scorn."1

The case of Kimpton attracted great attention, and brought forth the most exhaustive discussions that had ever been made of the subject of the rendition of fugitives as between the States and Territories of the United States.2 It seems that the evidence of an ulterior purpose on the part of the authorities of South Carolina consisted in the fact that Kimpton, while eluding pursuit in Canada, entered into correspondence with them looking to an arrangement whereby he might return and secure immunity. The authorities of South Carolina agreed that if he would return to that State and tell all he knew about certain financial transactions, and if this testimony should be used, all the indictments against him should be dropped; but that if his testimony should not be used, he should be allowed to return to the north, and matters should remain as before. This proposition Kimpton rejected. Whether proof of such a negotiation should be a bar to the extradition or the rendition of a fugitive criminal is more than doubtful. It was especially so in the case of Kimpton, since at the time the negotiations took place he was in Canada, where he could not be reached for the offence with which he was charged. But, had this circumstance been lacking, the fact that he had been offered immunity if he would give evidence against his co-defendants would not have been

1 New York Times, Sept. 25, 1878.

2 It would be improper in this relation to omit reference to the articles by I. T. Hoague, 13 Am. L. Rev. 201; by Richard B. Tunstall, 2 Va. L. J. 579; by J. Manford Ker, 13 West. Jur. 145. The article of Mr. Hoague, which is rich in historical matter, caused several well-known writers to abandon their advocacy of the theory of discretion, and to become of the number of its opponents.

8 Supra, § 441.

very cogent evidence that he was indicted upon false or insufficient grounds, and not in good faith, or that, having declined the offer, his rendition was not sought with a view to try him.

The attorney-general of Massachusetts was in error in assuming that the statute of that State, which made the rendition of fugitives discretionary, had been in force for seventyfive years, and that the practice of exercising discretion on the subject had been uniform since 1801.1 Nor does the case of Taylor v. Taintor sustain the view that the executive upon whom the demand is made may inquire whether it has an ulterior purpose.2

§ 614. Delaware, Louisiana, and Ohio. The Revised Statutes of Louisiana of 1870 provide that the governor may "in his discretion" deliver up fugitives, and that it shall be his duty to require such evidence of guilt as would justify commitment for trial there, but the attorney-general of Louisiana informs me that the authorities follow the act of Congress, and not the inconsistent local statute. In Ohio all the principal provisions of the Massachusetts statute have been re-enacted, with the additional requirement that the demand must be accompanied with sworn evidence that it is made in good faith, and not to collect a debt or a pecuniary mulct, or to remove the person in order to serve him with civil process. In 1883 the Ohio statute was substantially

1 Supra, § 612.

2 Infra, § 618. It is often stated that the New Hampshire law is taken from the Massachusetts statutes. This is somewhat misleading. The New Hampshire statute is based on the Massachusetts Revised Statutes of 1836.

3 This provision had its origin in a joint resolution of the General Assembly of Ohio, March 25, 1870, "relative to the surrender of persons charged with treason, felony, or other crimes," which is as follows:

"Whereas, The clause in the Constitution of the United States, requiring the surrender of a person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, was intended to subserve only great public interests, and not to apply to trivial offences, or to be made subservient to private interests by being used to enforce the collection of debts, or to remove the citizen of any State into a foreign jurisdiction that he might there be served with civil process.

"And whereas, Great abuses have recently been perpetrated in this regard against the citizens of the State.

adopted by Delaware. These various provisions far exceed the requirements of extradition between independent nations, and render that a matter of discretion which, under the treaties, is a matter of obligation.

§ 615. Maryland. There is no statute in Maryland on the subject of interstate rendition, and the doctrine of executive discretion is not known to have obtained there; but in the case of Max Juhn, in the summer of 1890, it was announced very broadly. The case involved another question, -that of constructive flight in respect to the offence of obtaining goods by false pretences. But, after discussing that subject, the attorney-general of Maryland, whose counsel had been sought, advised the governor as follows:

"There is another matter for consideration to which this citizen of Maryland is entitled. One of the rules of the executive department, long ago established, is in these words: In all cases the greatest care will be exercised to ascertain beyond a doubt that the object is not to collect a debt. . . . In all cases of false pretences, embezzlement, conspiracy, and similar crimes, the strongest affirmative evidence will be required that the object is not to collect a private debt.' Of course this rule applies as well to the issue of a warrant of arrest as to the issue of a requisition.

"The evidence submitted by the representative of the State of

"And whereas, By the practice of all the States, a discretion has been recognized as proper to be exercised by the executive authority of each State, both as to the cases in which a requisition shall be made for the surrender of an alleged fugitive, and as to those in which the demand shall be granted, and it is proper that this discretion should, as far as possible, be limited and defined; therefore,

"Resolved by the General Assembly of the State of Ohio, That the executive authority of this State in its action under said clause of the Constitution of the United States should, in the opinion of the General Assembly, be governed by the following rule, both in making requisitions on other States and in allowing requisitions by other States on this State, namely: No requisition shall be made or allowed for an alleged fugitive, unless the governor be clearly satisfied that the requisition is sought or made in good faith for the punishment of an offence within the proper meaning of the said clause of the Constitution, and that it is not sought or made for the purpose of collecting any debt or pecuniary mulet, or for the purpose of removing the alleged fugitive to a foreign jurisdiction with a view there to serve him with civil process."

Paper read by Henry D. Hyde: Report of the third annual meeting (1880) of the American Bar Association, pp. 196, 197.