The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1878-09-05
THE CHERUB TAKES FLIGHT.

Clfll oSEFlCo ISlUlu OluCl.
THE CHERUB TAKES FLIGHT.
Massachusetts Declines to Give Up Kmp-
ton.
Attorney General Train, of Massachu-
sets, in his report to Governor Rice upon
the Kimpton requisition case, transmits
report of the proceedings at the hear
ing, as a part of his communication, for
the guidance of Governor Rice, as fol-
lows:
"It was claimed on behalf of South
Carolina that the requisition complied
substantially and formally with the pro-
visions of the Constitution of the United
States, Article 4, Section 2, and with the
Statutes of the United States, Revised
Statutes United States, Section 5,573, in
aid thereof. The requisition is accom-
panied by 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 from that State and
is within the limits of Massachusetts,, and
the papers are certified by the Governor
of South Carolina to be duly au.henti-
Gated, and thersupon it was claimed that
there was no discretion reposed in your
E1cellency, and that it was your impera-
tive duty to forthwith issue warrant of
extradition, and cause respondent to be
delivered to the agent of South Carolina.
Should I adopt this doctrine and SO ad-
wise your E1cellency I must assume the
Statute of Massachusetts, which has now
been in force for period of seventy-fve
years, in aid of the provisions of the Con-
stitution of the United States for the
rendition of fugitives from justice, to be
unconstitutional law. Many of the States
have no statute upon the subject, while
many of them have a statute like our
own, and it is not improbable that the
statute by the State upon tho subject is
unnecessary. But I shall not presume to
declare so ancient law as our own to be
unconstitutional, nor to disturb the prac-
tice under it, which is now we'll settled
and thoroughly understood. The au-
thorities which are relied upon by the
learned counsel of South Carolina are
entitled to- consideration, but they
are controlled more recent decision
in the case OF Taylor vs.. Taintor, 10th
Wallace, 366, in which it is distinctly
held that the Executive of the State may
exercise discretion in the rendition of q
fugitive from justice. 1 am bound by
the law of that case, as well as by our
statute, to inquire and report whether
the party whose rendition is required is
held in custody or is under recognizauce
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 30 held the E1-
ecutive may at his discretion decline to
comply with the requisition. 1t is
worthy of remark that in none of the
cases cited was the question of Executive
discretion before the courts, and its dis
cussion is incidental. So the doctrine
claimed has never been judicially de-
cided. The uniform practice of yourself
and your predecessors, as far as can as
certain, 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.
4 familiar illustration is to be found
when a requisition is made for party
charged with the crime of obtaining
property by false pretences. II it is
manifest that rendition is sought to en-
able the prosecutor to collect debt, and
not with the intention of convicting au
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 al
legged commission of crime, unless salts
| factory reasons appeared for delay, and
where the offence charged is 80 trivial in
its character that it would be perver-
sion of this great power to put it in eI-
ercise, and where it appears that requi-
sition has been improvidently issued, or
that it is for purpose other and differ
ent from that which appears upon its
lace, warrant Ol eAlTaultlOu HdS Always
been denied. Illustrations nj ght be
given of the exercise of discretion by, the
Executive in this behalf, but those al
ready 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 1901, and the
practice in other States of the Union, a,
am advised, is the same.a5Upon the
most careful consideration which | am
able to give the question presented, feel
bound to advise your Excellency that
Chapter 1T of the General Statutes is
constitutional, and that it is your duty to
exercise sound discretion in its admins.
tration. In the present case ! find, and
so report to your Excellency, that the
requisition is in due form OF law, and
that Kimpton is not held in custody OF
under recognizance to answer for amy Of
fence against the laws of this State Or the
United States, or by force Of any civil
process. Were this the whole of the case
1 should advise your Exccllency that 0
warrant of extradition might properly
issue, but find, further, that the crime
with which Kimpton stands charged was
committed in April, 1872, and that nc
attempt was made to prosecute him or
his confederates until August, 1877 nor
! does it appear that tliers is Gny present