quotation of the constitutional provision, it is recited that, while the act of 1793 required the delivery of the offender "to the agent of the State" which should make the demand, no provision had been made in Massachusetts "for the appointment of such agent." It is then enacted in section 1 that the governor of the Commonwealth shall be authorized to appoint agents to demand from the executive authority of any other State any person charged with crime in Massachusetts; and section 2, which completes the statute, reads as follows:

"That when a demand shall be made on the executive authority of this State, by that of any other, for the delivery over of any person charged with treason, felony, or other crime, in the State from which the demand shall be made, the Governor, with the advice of the Council, shall issue his warrant, under the seal of the Commonwealth, authorizing the Agent or Agents who shall make the demand, to transport such persons so delivered over to the line of this State, on the way to the State which shall make the demand, at the expense of such Agent or Agents, and shall also in such warrant command all civil officers within the State to afford such Agents all needful assistance in transporting such person so charged pursuant to such warrant.” 1

It has been urged that the clause in this section by which the advice of council is required shows that the doctrine of discretion existed in Massachusetts at a very early day. We do not think this conclusion necessary. It was the theory of the constitution and government of the Commonwealth of Massachusetts that the governor should act with the advice of his council, which, it was said, should be held "for the ordering and directing the affairs of the Commonwealth, agreeably to the constitution and the laws of the land." 2 In the first section of the act now under consideration, by which the governor was authorized to appoint agents, he was not empowered to draw warrants for the payment of their expenses except "by and with the advice of the council."3 The

1 Act of 1801, ch. ii.; Laws of the Commonwealth of Mass., vol. iii. p. 491. 2 Constitution of Massachusetts, ch. ii. art. 4.

In this relation, see Id., ch. ii. art. 11.

second section, as stated in a marginal note in the original volume of the laws, was enacted in aid of the agents of other States, and the warrant directed to be issued to them was clearly for that purpose and carried with it all the civil authority of the State. In view of the express recital, in the preamble to the act, of the constitutional provision and the act of Congress of 1793, and of the absence of any contrary provision, it is conceived that the requirement of the advice of the council related to the manner and form of the matter, rather than to the exercise of discretion in complying with the demands of other States. If, in spite of these considerations, it be insisted that it was the theory of the legislature to make the issuance of the warrant a matter of discretion, that theory was afterwards discarded; for, on the 28th of January, 1820, an act was approved which repealed so much of section 2 of the act of 1801 as provided for the advice of the council. This excision made the language of the act of 1801 purely mandatory, and left the constitutional provision and the act of 1793, recited in the preamble, to furnish the only rule on the subject. Thus the law remained till 1834, when an act was passed which provided that whenever a demand should be made upon the governor, under the Constitution and laws of the United States, for the delivery up of a person charged with crime in another State, it should be the duty of the attorney-general, or other prosecuting attorney, if required by the governor, to inquire into and state in writing the situation, condition, and circumstances under which such demanded person" was found, and especially whether he was held for any crime or offence under the law of Massachusetts, whether he was held under any civil process, and whether the demand was "made according to law and the said person ought to be delivered up." While it may be argued that the words "ought to be delivered up" imply discretion, we think that, when applied to the advisory and semi-judicial function the attorney-general was called upon to perform, they rather state a conclusion dependent upon the question whether the demand was "made according to law." This in

66

1 Laws of Massachusetts, 1820, p. 314.

terpretation is confirmed by the immediately succeeding and concluding words of the act, which are as follows:

"And the governor shall thereupon, if said demand is conformable to law, issue his warrant, under the seal of the Commonwealth, authorizing the removal and delivery of such person so demanded to be made forthwith, or shall issue it at such future time as the said governor shall deem to be most conducive to justice and the provisions of the Constitution and law of the United States aforesaid."1

The phrase "conformable to law," which is substantially the same as "according to law," and measures the governor's duty, obviously means in conformity with the Constitution and the act of Congress, to which express reference is made, and with the provisions of the statute itself; and in the latter the only clause that could be construed as involving discretion is that relating to the accused being held on criminal or civil process, which presents quite an independent question.2 In 1836, however, the act of 1834 was embodied in a revision of the laws with an apparently material alteration. The provision as to the opinion of the attorney-general, or other prosecuting attorney, was left as before, except that, in accordance with the interpretation we have heretofore suggested, it was explicitly provided that he should report whether the demand was made conformably to law, "so that such person ought to be delivered up." But, in respect to the issuance of the warrant of surrender, it was provided that if the governor should be "satisfied" that the demand was "conformable to law, and ought to be complied with," he should issue his warrant, &c. This language, when used in reference to the final action of the executive, may be thought to announce the theory of discretion, though in terms much less explicit than those that were subsequently employed. There was no further addition to or change in the law until 1857, when an act was passed to forbid the delivery up of any person until he had had an opportunity to apply for a writ of

1 Laws of Massachusetts, 1834, ch. 155.

2 Infra, §§ 617, 618.

3 Revised Statutes, 1836, ch. 142, section 7.

habeas corpus. But in 1859 a statute was adopted which provided that no executive warrant or requisition should be issued unless the demand for surrender or the application for the requisition should be accompanied with sworn evidence that the party charged was a fugitive from justice, and with a duly attested copy of an indictment, or a duly attested copy of a complaint made before a court or magistrate authorized to receive the same; "such complaint to be accompanied by affidavits to the facts constituting the offence charged, by persons having actual knowledge thereof: provided, however, that nothing herein shall be construed to require the governor to issue a warrant, or a requisition, as aforesaid, upon the evidence aforesaid, nor to prevent his requiring any other or further evidence in support of such demand or application." The provisions of the act of 1834, of the revision of 1836, and of the acts of 1857 and 1859, were substantially worked into the revision of 1860, with, however, the further provision that the report of the attorney-general should contain an opinion as to the "legality or expediency" of complying with the demand. This provision completed the theory of discretion; and thus the law stands to-day.4

"2

The views expressed by the writer as to the late appearance of the theory of executive discretion in Massachusetts are confirmed by the record of the cases in which the governor of that State has failed to comply with requisitions. Down to 1820, there are only three instances of non-compliance; one in 1811, one in 1814, and one in 1818. The reasons for the failure to comply in the case in 1814 cannot be ascertained, since the papers are lost. But, both in the case in 1811 and in that in 1818 the ground of refusal was that the person demanded was serving a criminal sentence in Massachusetts; and this, in our opinion, does not involve the theory of discretion.5 From 1818 to 1838 there is no instance of non-compliance. From the latter date on, cases of refusal occur with more or

1 Laws of Massachusetts, 1857, ch. 289.

2 Laws of Massachusetts, 1859, ch. 81.

8 General Statutes, 1860, ch. 177.

4 Public Statutes, 1882, ch. 177.

5 Infra, § 617.

less irregularity; but we venture to say that in many of those cases the ground of refusal was a defect in the process,1 or the allegation that the person charged was not a fugitive from justice, and that in comparatively few instances was there a clear assertion of the theory of discretion.3

In regard to the provisions of the Massachusetts law, it may be suggested that they depart from the principle of the Constitution and the act of Congress in two respects: (1) They require evidence of the criminality of the person demanded, instead of evidence that he is "charged" with crime; (2) They make compliance with the demand a question of "expediency," and not of legal obligation.

§ 613. Case of Kimpton. In 1878 a case occurred under the Massachusetts statute which was the subject of much controversy. Under date of August 8, 1878, Governor Hampton, of South Carolina, demanded of Governor Rice, of Massachusetts, the rendition of Hiram H. Kimpton, formerly a financial agent of South Carolina, who was charged with complicity in the fraudulent issuance of bonds of that State. The requisition having been referred to the attorney-general of Massachusetts, he heard counsel both for the State of South Carolina and for the prisoner, and on August 29, 1878, reported that Kimpton ought not to be delivered up. Accompanying the requisition was a copy of an indictment found in August, 1877, charging John J. Patterson, Miles G. Parker, and Kimpton with the commission of the crime above stated in March, 1872; and there was also an affidavit

1 Supra, § 611.

2 Supra, §§ 570-578, 581.

In the very able and exhaustive brief of Mr. J. H. Benton, Jr., in the Vinal case, supra, § 570, there is a list of the cases in which the governor of Massachu setts has refused to comply with requisitions, but the reasons are not disclosed. I am, however, indebted to Mr. Benton for information as to the cases in 1811, 1814, and 1818. The number of cases found in the brief may be summarized as follows: 1811, 1; 1814, 1; 1818, 1; 1838, 2; 1839, 1; 1841, 1; 1842, 1; 1843, 2; 1846, 2; 1848, 2; 1849, 3; 1850, 4; 1851, 10; 1852, 3; 1854, 3; 1856, 5; 1857, 1; 1862, 1; 1863, 1; 1865, 1; 1875, 3; 1876, 1; 1877, 1; 1878, 2; 1879, 5; 1882, 6; 1883, 4; 1884, 1; 1887, 1. The longest interval in this list after 1836, the year of the revision containing the implication of discretion, is from 1865 to 1875.

4 New York Times, Sept. 1, 1878.

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