returned; ""took up their residence and conducted their affairs there without concealment, and in all respects conformably to the usages of innocent and unsuspecting citizens." Whether such a course of conduct was a fleeing from justice, so that a man might be called a fugitive, was a question of importance, but not necessary to decide. (2) Because the affidavit did not charge the crime positively, but only asserted deponent's information and belief. (3) Because the deponent should have stated the act, instead of his belief as to its character. On September 5, 1837, Governor Schley replied to the letter of Governor Dunlap, taking issue on all points. He contended that the conduct of the fugitives in Maine was no evidence as to their character. Had they so acted where the offence was committed, there might have been a presumption in their favor. Governor Schley also contended that in the affidavit the act of stealing was positively sworn to, and that the only allegation made upon belief was that the fugitives were master and mate of the vessel. He also argued that under the act of 1793 the governor of Maine had no authority to inquire whether the affidavit charged a crime against the laws of Georgia; but he quoted the law of Georgia in order that there might be no doubt of the act being a felony there. To this letter no reply appears to have been made by Governor Dunlap. But on June 25, 1838, Gov. Edward Kent, of Maine, acknowledged a requisition of Governor Gilmer, of Georgia, for the same men. Accompanying this requisition, so the acknowledgment states, was an indictment, charging the same offence. Governor Kent said he did not doubt that if the constitutional provision was complied with, he was bound to give the fugitives up, whatever his own views of the crime charged, or of the expediency of pursuing the fugitive, might be. But it was proper in the executive upon whom the demand was made "to require evidence of every constitutional condition before yielding up a citizen of the State over which he presides." He further said that the Constitution of the United States required the delivery of the accused when it was shown that he was charged with crime in another State; that he had fled from justice;

and that he was found in the State upon which the demand was made. It was, said Governor Kent, perhaps doubtful whether the accusation must not precede flight, but this was not dwelt on. The indictment furnished evidence of the crime. But the Constitution had superadded another condition, namely, that the accused should have fled from justice.

"I do not suppose," said Governor Kent," that a direct, immediate, and rapid flight is alone intended, or a capture upon fresh pursuit. But I do suppose the departure must be in some degree connected with the crime; that there must be some manifest design to avoid the process of the law, and an intention of placing himself out of the reach of the officers of justice. If, for instance, a man has committed an assault and battery many years since in Maine, and had lived here for two or three years afterwards, and then removed to a neighboring State, where he had resided openly for a long time, I should not feel authorized to demand him as a fugitive from justice, because a bill of indictment had been found against him in this State, and he was found in another State; and, of course, I should not feel authorized in yielding to the demand for a person in such case by the executive of another State. Circumstances and facts in many cases might distinctly indicate the intention of avoidance, by removal; and the presumption might be raised without direct evidence of such intention. But I do most respectfully maintain that such fleeing from justice' is a distinct and explicit preliminary point to be satisfactorily established before the delivery can be demanded as a matter of right."

Governor Kent further said that the opinion of the judges of the supreme judicial court of Maine, given to his predecessor, upon a case presented which arose prior to the questions in relation to Philbrook and Kelleran, was explicit on the point. He observed that in the papers forwarded by the governor of Georgia there was nothing to establish that the men were fugitives from the justice of that State, and to invalidate their allegations to the contrary. They alleged that they were citizens of Maine, who had gone to Georgia in the usual course of their business; that their vessel loaded in the usual manner and time, cleared and sailed in the common form and by the accustomed route; that they returned to their homes,

where they had remained openly transacting their business for several months; and that they did not know the negro was on their vessel till several days after sailing, when he was discovered concealed in the hold. These facts were not evidence of a fleeing from justice. The Governor concluded as follows:

"I beg leave to assure you that this opinion is not formed in reference to the nature of the property alleged to have been stolen, or to the peculiar relations existing in your State, and which, in some degree, are connected with this question. I fully recognize the constitutional right of Georgia to enact her own penal laws, and to make that a crime which is unknown to our laws as such, and to demand fugitives from her justice. I place the case upon the sole ground of the fair construction of the Constitution in this particular, irrespective of particular and peculiar circumstances which may become connected with the discussion. Maine assumes no right to disregard any provision of the constitutional compact, because she may incidentally aid in enforcing laws or sustaining institutions different from her own."

The opinion of the justices of the supreme judicial court, referred to by Governor Kent, was as follows:

"CASTINE, June 26, 1837.

SIR, The undersigned, justices of the supreme judicial court, to the following question propounded to them by the governor, on the 22d instant, viz.: 'Is it the duty of the executive of this State to cause to be delivered over to the agent of another State, at the request of the executive thereof, a citizen of this State charged (by indictment in such other State) with fraud upon one or more of her citizens, in the sale of wild lands, or in contracts for the sale of such wild lands, lying within the bounds of this State, and thereby obtaining the money and notes of said citizens under false pretences and representations in regard to the quality and value of said lands: ' would respectfully answer, that, in their opinion, it is the [duty of the] executive of this State to cause to be delivered over to the agent of another State, at the request of the executive thereof, a citizen of this State, charged in another State, by indictment, with the fraud before set forth, which, being indicted in such State, may be presumed to be regarded there as a crime, if the

executive of this State is satisfied that such citizen has fled from justice from the State making the demand, and not otherwise.

Mr. Justice Shepey being now engaged in official duty at Machias, the undersigned have not had it in their power to communicate with him, without postponing their answer to a later period than might be deemed convenient.

NATHAN WESTON,

NICHOLAS EMERY.

To the Governor of the State of Maine.

Governor Kent transmitted all the documents to the legislature of Maine some time late in 1838, or early in 1839; for on January 26, 1839, Mr. Litchfield, from the Committee on the Judiciary, to whom the message was referred, reported to the Senate that the whole subject was exclusively within the province of the executive department, and that it was inexpedient for the legislature to take any order in relation thereto. The committee asked to be discharged from further consideration of the subject, and that the message and documents be placed on the files of the legislature. The report was read, and accepted. It was then sent to the House for acceptance, and accepted there. On August 23, 1839, Governor Gilmer replied to Governor Kent, denying all his propositions on the law and on the facts in the case as to the fleeing from justice, and arguing upon the absoluteness of the duty of the executive to deliver up an accused person when he was demanded as a fugitive from justice in accordance with the act of 1793.1

1 Sen. Docs., vol. iv. 26th Cong., 1st Sess. [273]. In this letter Governor Gilmer states that on the 20th of the preceding March, the legislature of Maine passed a law giving the governor authority to satisfy himself, by an investigation into the grounds of a demand, whether it was proper to be complied with, before he should order the arrest of fugitives from the justice of the other States. Governor Gilmer said: “According to the act of Congress passed February 12, 1793, whenever the executive authority of a State demands the arrest and delivery up of a person as a fugitive from its justice, and produces to the governor of whom the demand is made the authenticated copy of an affidavit, or true bill of indictment found, charging the person so demanded with the commission of a crime within the State demanding him, and he is found within the jurisdiction of the State of which he is demanded, the law presumes, without further proof, that he has fled from justice." In another place, he says that "unless the governments

§ 564. Opinion of Governor Fairfield. The question as to what constitutes a fugitive from justice under the Constitution and the act of Congress came before Governor Fairfield, the successor of Governor Kent, of Maine, in the case of "Certain Fugitives" demanded by the governor of Massachusetts. He disapproved the suggestion thrown out by Governor Kent in his correspondence with Governor Gilmer, that the term "fugitive from justice" might be held to mean only one against whom an accusation had been made in the demanding State prior to his flight. At the same time he refused to accept the doctrine that, in order to constitute a person a fugitive from justice, it is only necessary for him to have been charged with the commission of a crime in one State and to be found in another, though he was in the former State when he committed the act. To prove this position to be untenable, he supposed the case of a person who had committed an offence, say larceny, in Maine, and continued subsequently to reside there for several years, engaged in his usual business, the offence being a matter of public notoriety and no one attempting to disturb him by a prosecution. He then removes to another State, with his family and property, not clandestinely, but openly, in the daytime and by the usual mode of conveyance; and continues his residence in the State to which he has removed for several years, pursuing his regular avocations there and demeaning himself in all respects as a good citizen. Governor Fairfield said that such a man could not be regarded

of the several States shall deliver up, upon demand, all within their jurisdiction who are charged with the commission of crimes in other States, with the same certainty that criminals are arrested by the officers of justice within the jurisdiction where their offences are committed, the people of this country have no suffi cient security for the protection of their rights against the facility with which offenders can escape from the jurisdiction where alone they can be tried, and our form of government will have failed in providing for the performance of one of its most important functions, - the certain punishment of crimes." Again, he said: "The arrest of fugitives from justice can never be asked of a governor as a matter of favor, to be granted according to his discretion, as your Excellency seems to suppose. The demand must be made as a matter of right; and, if accompanied by the proof required by the law of the United States, the duty is imperative." He held that the affidavit presented with the first application established the fleeing from justice, in fact.