The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1878-09-05
THE CHERUB TAKES FLIGHT.
Mnusn nchusetts Declines TO Give Up ISimp-
ton.

Attorney General Train, of Massachu-
sets, in his report to Governor Rice upol.
the Kimpton requisition case, transmits
q report of the proceedings at the hear
ing, as part of his communication, for
the guidance of Governor Rice, US fol-
lows:
at was claimed on behalf of South
Carolina THAI the requisition complied
substantially aud formally with the pro-
visions of the Constitution of tho United
States, Article 4, Section 2, and with the
Statutes of the United States, Revised
Statutes United States, Section 5,57$, in
aid thereof. The requisition ia accom-
panied by. copy Of the Indictment
against John J. Patterson, Niles 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 q
fugitive from justice from that State and
is within the limits of Massachusetts, and
the papers are certified by tho Governor
of South Carolina to be duly authenti-
Gated, and thereupon it waB claimed that
there was no discretion reposed in your
Excellency, and that it was your imrers-
tive duty to forthwith issue warrant of
extradition, and cause respondent to be
delivered to the agent of South Carolina.
Should l adopt this doctrine and so adj
vise your Excellency must assume the
Statute Of Massachusetts, which has now
been in force for period of seventy-fiye
years, in aid cf the provisions of the Con
5titution OF the limited States for tie
rendition of fugitives from justice, to be
n oftf PM al 1or Al.
have no statute upon the subject, while
many Of them have statute like our
own, and it is not improbable that the
statute by the State upon the subject is
unnecessary. But shall not presume to
declare 80 ancient q law as our own TO be
unconstitutional, nor to disturb the prac-
tice nnder It, which ie nc: ge!i settled,
and thoroughly understood. The au-
thorities which are r-,ied upon by the
learned counsel of South Carolina are
entitled to great consideration, but they
are controlled by 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 a
fugitive from justice. 1 am bound by
the law of that case, as we'll rs by our
statute, to inquire and report whether
the party whose rendition is required is
held in custody or is under recognizance
to answer for any O. .ence against the
laws of this State or the United States,
or by force of any civil nr less, and it is
clear that if party is co held the Ex.
ecutiye may at his discretion decline to
comply with the requisition. It 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 doctriue
claimed has never been iudicially de-
cided. The uniform practice of yourself
and your predecessors, es far as can as
certain, has been to exercise discretion
in such cases, not only rs to matters
specifically named in the statute, but as
to any matter which isisht or ought to
control the judgment Of the Executive.
A familiar illustration is to be found
when a requisition is madG for party
charged with the crime of obtaining
property by false pretences. II it is
manifest that rendition is sought to en-
able tho prosecutor to collect o debt. and
not with the intention of convicting an
alleged fugitive Of crime with which he
is charged, the uniform practice has been
not to comply with the requisitien. So
% lse:. = ::.asc.::.c 60. h. &C.. .. Ls
or found for several yeaEs after the al
legged commission Of crime, unless sstis.
factory reasons appeared for delay, and
where the offence charged is 80 trie. al in
its character that it would be q peryer-
sion of this great power TO put il in ex-
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
face, warrant of extradition has ALWAYS
been denied. Illustrations might be
given of the exercise of discretion by. the
Executive in this behalf, but those al
ready given are sufficient for my purpose,
AS / have already said, the practice has
been uniform since the passage of the
firut statute in the year 1901, and the
practice In other States of the Union, as
am advised, 10 the same. esUpon the
most careful consideration which arr
able to give the question presented, feel
bound TO advise your Excelency that
Chapter 177 of the General Statutes is
constitutional, and that it is your duty TO
exercise sound discretion in It's adminis-
tration. In the present case find, and
so report to your Excellency, that the
fequisition is in duo form OF law, and
that Kimpton ia not held III custody or
under recoguizance to answer fo7 any of
fence against the laws of this State or the
United States, or 55y fvTu5 ot Of any civil
process. Were this the whole OF the case
j should advise your Excellency that n
warrant Of extradition might properly
.s:ue, but | find, further, that the crime
with which Kimpton stands charged was
committed in April, 1879, and that no
attempt was made to prosecute him or
his confedeTatss until August, 1871; nor
J ldoes i appear that thpt1 Is any present