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this Union, although united as one nation for certain specified purposes, are yet, so far as concerns their internal government, separate sovereignties, independent of each other, it was obviously deemed necessary to show by the terms used that this compact was not to be regarded or construed as an ordinary treaty for extradition between nations altogether independent of each other, but was intended to embrace political offences against the sovereignty of the State, as well as all other crimes. And as treason was also a 'felony,' (4 Bl. Com., 94,) it was necessary to insert those words to show, in language that could not be mistaken, that political offenders were included in it.' For this was not a compact of peace and comity between separate nations who had no claim on each other for mutual support, but a compact binding them to give aid and assistance to each other in executing their laws, and to support each other in preserving order and law within its confines whenever such aid was needed and required; for it is manifest that the statesmen who framed the Constitution were fully sensible, that from the complex character of the government, it must fail unless the States mutually supported each other, and the General Government; and that 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 State, to repeat the offence as soon as another opportunity offered.
"Indeed, the necessity of this policy of mutual support. in bringing offenders to justice, without any exception as to the character and nature of the crime, seems to have been first recognized and acted on by the American colonies," &c. Here the judge cites the provision in the New England articles of confederation, and remarks: "It will be seen that this agreement gave no discretion to the magistrate of the government where the offender was found; but he was bound to arrest and deliver, upon the production of the certificate under which he was demanded.
'But the question seems to be, How shall treason or felony, within the meaning of the provision, be discriminated? Is it enough that an act be called treason or felony on the statute-book of the demanding State?
" Ante, Vol. I., p. 269, note [c].
"When the thirteen colonies formed a confederation for mutual support, a similar provision was introduced, most probably suggested by the advantages which the plantations had derived from their compact with one another. But as these colonies had then, by the declaration of independence, become separate and independent sovereignties, against which treason might be committed, their compact is carefully worded so as to include treason and felony-that is, political offences, as well as crimes of an inferior grade. It is in the following words:
"If any person, guilty of or charged with treason, felony, or other high misdemeanor, in any State, shall flee from justice, and be found in any other of the United States, he shall, upon demand of the governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offence.'
"And when these colonies were about to form a still closer union by the present Constitution, but yet preserving their sovereignty, they had learned from experience the necessity of this provision for the internal safety of each of them, and to promote concord and harmony among all their members; and it is introduced in the Constitution substantially in the same words, but substituting the word 'crime' for the words 'high misdemeanor,' and thereby showing the deliberate purpose to include every offence known to the law of the State from which the party charged had fled.
"The argument on behalf of the governor of Ohio, which insists upon excluding from this clause new offences created by a statute of the State, and growing out of its local institutions, and which are not admitted to be offences in the State where the fugitive is found, nor so regarded by the general usage of civilized nations, would render the clause useless for any practical purpose. For where can the line of division be drawn, with anything like certainty? Who is to mark it? The governor of the demanding State would probably draw one line, and the governor of the other State another. And if they differed, who is to decide between them? Under such a vague and indefinite construction the article would not be a bond of peace and union, but a constant source of controversy
and irritating discussion. It would have been far better to omit it altogether, and to have left it to the comity of the States, and their own sense of their respective interests, than to have inserted it as conferring a right, and yet defining that right so loosely as to make it a never-failing subject of dispute and ill will."
In the portion of the opinion which will be cited in the next chapter the Chief Justice says: "This compact, engrafted in the Constitution, included and was intended to include every offence made punishable by the law of the State in which it was committed."
§ 695. There have been several instances in which these questions have been considered by the chief executive officers of the State governments, and their legal advisers, the State Attorneys-General, and they have been sometimes subjects of discussion in the State Legislatures. The decisions made in such cases cannot, however, be regarded as precedents having any binding force; and, indeed, it is difficult to see how, under the application which has hitherto been made of this provision, any rule of law, having a general authority in all the States, can be derived from any cases arising under it. The judicial opinions in which the effect of this provision has been considered have, with one exception, arisen on some actual custody which was claimed to be lawful under it. The case of Kentucky v. Dennison presents the only instance in which the action of a Governor of a State, in refusing to make the required extradition, has been brought before a court for review. In that case the Supreme Court of the United States decided that it had no power to issue the mandamus prayed for. The rules which may be drawn from the decisions of State courts of law, when, on habeas corpus, or actions for damages, they may have passed upon the lawfulness of custody under the authority of the Governors of States proposing to fulfill duties arising under this provision and the law of Congress, will be rules of local authority only, as part of the law of some one of the several States.'
1 In no instance, I believe, has the decision of a State court in such a case been brought up before the Supreme Court of the United States.
There are some instances of controversy between the Executives of different States which may be particularly referred to as important in the history of the general subject, and as showing how far such questions are proper subjects for the exercise of the judicial function. Whether the provision itself should be so construed that it might be applied by the judicial power of the United States or of the several States, independently of national or State legislation, as part of the national private law, will be considered in the next chapter.
§ 696. The earliest instance of a question of this character, under this provision, arose in the year 1791, on a claim made on the Governor of Virginia for persons charged with having abducted a negro from Pennsylvania into Virginia to be holden in slavery.' The Governor of Virginia refused to deliver up the persons demanded. In the indictment the person carried off was designated "a free negro," and it was not even intimated in the opinion given by the Attorney-General of Virginia, or in the answer of the Governor of that State to the Governor of Pennsylvania, that he was a slave, or had been a slave in Virginia or in any other State. It does not appear to have been questioned that his right to freedom, in Pennsylvania, and to the protection of its laws, was as perfect in that State as the right, in that respect, of any other inhabitant. The principal reason given for the refusal of the demand appears to have been, that the law of Virginia should, in this instance, determine the meaning of the terms "treason, felony, or other crime," and
'Parties were charged under the State law of 1778. Gov. Mifflin, of Pennsylvania, addressed a letter to Beverly Randolph, then Governor of Virginia, informing him of the charge against the parties, and their flight into Virginia, and requesting that proper steps might be taken to have them delivered up as provided for in the Constitution. Gov. Randolph submitted the request to Mr. Innis, Attorney-General of Virginia, who held that, by law of Virginia, the acts charged were only trespass or breach of the peace, to which the parties, if indicted, might appear by attorney, and assumed “that in these respects the laws of Pennsylvania are assimilated to our own," and argued:-" If they are, then the offences stated do not appear to me to come within the description of crimes contained in the above-cited section of the federal Constitution." On the refusal, Mifflin transmitted the papers to President Washington, and argued:-"It is equally certain that the laws of the State in which the act is committed must furnish the rule to determine its criminality, and not the laws of the State in which the fugitive from justice happens to be." The President submitted the case to Edmund Randolph, then the U. S. Attorney-General, who delivered an opinion contrary to Innis', and held that the Governor of Virginia ought not to refuse. See the documents in Am. State Papers, Misc. Vol. I., 49.
that by that law such abduction and selling into slavery of a free person, at least if a negro, was not such crime nor felony.' There were in this instance, however, other questions involved which were equally effectual in determining the decision of the Governor of Virginia. In connection with these, the correspondence on this occasion will hereinafter be again referred to. The history of the case was laid before the second Congress, and it is supposed to have been the immediate occasion of the passage of the act of Feb. 12, 1793.
A similar controversy arose in 1818-1820 between the Executives of Indiana and Kentucky on a similar abduction from the former State of a negro woman.'
§ 697. A similar conflict of opinion, arising out of circumstances the very reverse of those of the former cases, was presented, on the demand of the Lieut.-Governor of Virginia, in Aug., 1839, upon the Governor of New York for the delivery of three persons, charged, on the affidavit of one Colley, of Norfolk, Va., with having feloniously stolen and taken away a negro slave, the property of said Colley. In this controversy were involved other essential questions respecting the quality of the charge of an offence and of having fled from justice, which might be the foundation of a demand under the Constitution, and of the evidence on which it should be founded.' But the
1 Although it does not appear in the correspondence, it can hardly be doubted that this was asserted on the ground that the negro abducted was claimed to be a fugitive slave.
The correspondence in this case, and report of a committee of the Indiana Legislature, are annexed by the Governor of Ohio to his message to the Ohio Legislature, on Lago's case, already mentioned. From these documents it would appear that the woman abducted was claimed to be a fugitive slave, though the refusal of the Governor of Kentucky to deliver up those charged with the abduction is not based on that supposition. The committee of the Indiana Legislature vindicate the propriety of the State law (ante, p. 127), which requires the individual claimed as a fugitive from service to be proved such prior to his removal, and deny the power of Congress to legislate.
Seward's Works, ii., p. 453, in letter to the executive of Va. :-"The offence charged in the affidavit before me is not understood to be that of kidnapping a person, by which he was deprived of his liberty, or held in duress, or suffered personal wrong or injustice, but is understood to mean the taking of a slave, considered as property, from his owner. If I am incorrect in this supposition, the vagueness and uncertainty of the affidavit must excuse my error."
The charge rested on the affidavit of the owner, and the only evidence implicating the parties charged was the fact that they were negroes employed on the vessel in which, on sailing from Norfolk, the fugitive slave had secreted himself. Having been arrested in the city of New York, and being detained until the Governor's determination should be known, they were set at liberty after