Jasper County Democrat, Volume 4, Number 35, Rensselaer, Jasper County, 7 December 1901 — “DURBIN.” [ARTICLE]

“DURBIN.”

The following editorial discussion of Governor Durbin’s action on the Kentucky requisitions appears in the Central Law Journal of Nov. 29: Governor Durbin of Indiana has again raised that most serious and unsettled question of constitutional law—the extradition of fugitives from justice—in his direct refusal to honor the requisition of Governor Beckham of Kentucky for the rendition of Ex-Governor Taylor. Governor Durbin gives as his reason for refusing to extradite Mr. Taylor that he doubts whether he could secure a fair trial in the state of Kentucky, under whose laws he has been indicted. That this presents a question most vital to the interests of all American commonwealths cannot be denied after careful investigation. If two rival governors with deep personal .or political prejudices, can open the doors of their respective commonwealths as an asylum for those charged with crime in the other’s jurisdiction, and thus invite the commission of crime by insuring to the criminal immunity from punishment, a condition is presented that calls for prompt and vigorous action.

PROVISIONS OF LAW. Interstate extradition as based on sec. 2 of art. 4 of the constitution providing that “a person charged in any state with treason, felony, or other crime, who shall Hee from justice and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.” In 1793 congress passed an act, now secs. 5278 and 5279 of the revised statutes of the United States, providing that when a demand for the requisition of a fugitive from justice from any state shall have been made by the governor of said state, accompanied by a copy of the indictment found against the alleged criminal, “it shall be the duty of the executive authority” of the state to which said criminal has fled to deliver over the fugitive to the demanding state for trial. This provision of the constitution was construed by the supreme court of the United States in the case of Kentucky vs. Dennison. 65 I'. S. 161. which, also, is the only case directly in point with the controversy over the extradition of Governor Taylor. In this case a certain free negro was indicted for enticing away a slave from his owner, an indictable offense in that state. The alleged criminal fled to Ohio. The governor of Kentucky, after complying with the act of congress, demanded the rendition of the fugitive. The governor of Ohio refused to grant the requsition on the ground that his state did not recognize the crime for which the alleged fugitive from justice had been indicted. The state of Kentucky mandamused the governor of Ohio in the United States supreme court.

NO DISCEBTION WHATEVER. The supreme court? condemned the action of the governor of Ohio in very severe terms, stating that the constitution gave him no discretion whatever in granting the requsition; that it was purely a ministerial duty to be performed without regard to the character of the crime charged or of the laws of procedure of the demanding state. The constitution bound him to return the fugitive “on demand,” and the court intimated that his refusal to grant the requisition was a breach of his oath to support the constitution. The court held, however, that although this was a solemn obligation imposed upon the governor by the constitution, yet if he persisted in his refusal the federal government under the act of congress had no power to coerce him. It would seem that when this law was passed the belief was that a sense of jsutice and of mutial interest would insure the faithful execations of its provisions. “For,” says Chief Justice Taney, "it is manifest that the government must fail unless the states mutually supported each other and the general government; and nothing would be more likely to disturb its peace and end in discord than permitting an offender against the laws of a state, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the states, to repeat, the offense as soon as another opportunity offered.” POLITICIAN GOVERNORS. for ajnumber of years, however, there has been a strong tendency among governors to refuse the rendition of fugitives for certain political crimes or for offenses charged to enforce financial obligations and on various other grounds which they have alleged as “ulterior.” In taking this position they have undoubtedly uncovered themselves to the charge of acting in f

thtMace of the constitution and of the decision of the supreme court, denying them any discretion in such matters; and certain state courts expressly relying on the fact that the federal government under the present act is powerless to enforce that provision of the constitution, have held that the governor had practically an absolute discretion in the matter which neither state nor federal ¥ower could coerce. State vs. oole, 69 Minn. 104; Work vs. Coering, 34 Ohio, St. 64. This is a dangerous precedent and a breach of the constitution has been pointed out, not only by the supreme court in the case we have just noted, but also in a strong opinion in the case of la re Voorhees, 32 N. J. L. 141. In all text books and digests the duty of the governor to extradite a prisoner on demand, relying on the authorities which havegranted the executive a discretion in the matter or else have held to the belief that his discretion could not be controlled, has been constantly spoken of as one of “imperfect obligation,” whatever that might signify. Chief Justice Beasley of New Jersey, in the case we have just cited, denies that there is any such weakness in the constitution.

A REMEDY. He says: “I think it indisputable that the constitution has made the surrender of a fugitive from justice, which by the law of nations depended on the concessions of comity, a rule of law of perfect obligation and entirely imperative in character.” He recognizes the limitation, however, on the federal government, suggested by the case of Kentucky vs. Dennison, but states that this results entirely from the fact that the act of congress which regulates these proceedings directs the demand to be made upon the governor, and since he is not a federal officer, the federal government cannot compel the performance of a function which it has no right to annex to the office. “I cannot entertain any doubt of the power of congress to vest in any national officer the authority to cause the arrest, in any state, of a fugitive from the justice of another state, and to surrender such fugitives on the requisition of the executive of the latter state. The national right to require the surrender, under the terms of the constitution, seems to me to be clear, and all that is necessary to render such right enforceable, in every case, is the necessary organ of the federal government.” We believe the suggestion of Chief Justice Beasley is worthy of earnest-consideration as the most effective solution of these unhappy and serious clashes of authority between the governors of sister commonwealths over the extradition of fugitives from justice. hile in most cases we may confidently rely on the character of the men elected to such high places it is not to be denied that unscrupulous and hot-headed men, wielding the executive power of a state, have the right in the exercise of this extraordinary power to throw open the doors of a sister commonwealth to a flood of crime and disorder by granting an asylum to criminals or political free booters within its borders.