§ 705. The Fourth of the Articles of Confederation, of 1778, was cited in the extract from Judge Taney's opinion.' The word misdemeanor, which is there used, or even high misdemeanor, might, if alone, be taken to mean an offence less heinous than one called a crime. But, by the use of the word other, it is classed with treason and felony. The same word other being retained in the provision in connection with the substituted word crime, in like manner seems to qualify that term by associating it with treason and felony.' But why was crime mentioned at all, unless to designate something which could not be classed with treason or felony?"

§ 706. As used in English jurisprudence, the word felony indicates some act to which a high degree of guilt, under the legal code of morals, is attached, and which is attended by a known degree of punishment. Treason and crime are words not etymologically peculiar to the English language, and are popularly as well as technically used to designate violations of legal obligation which the state will punish irrespectively of remedies which the law may give to private persons. In treason, the public or political character of the right which has been infringed by the act so designated is indicated. In crime, an injury to either public or private rights may be implied. Between parties equally inheriting the language of English jurisprudence a question of the etymological meaning of the words cannot be made. The question of the application of the words must really be a question of the existence of the obligations whose violation may be treason, felony, or crime, and of the existence of the rights correlative to those obligations. Hence some common standard of legal rights and obligations, which may be recognized irrespective of the several laws of the different States, must be sought for to de

1 Ante, p. 384.

Dictum, 31 Ver. 287.

Edmund Randolph's Opinion in the Virginia and Pennsylvania case. 4 Bl. Comm. 94:-" Felony, in the general acceptation of our English law, comprises every species of crime which occasioned at common law the forfeiture of lands and goods." A. v. B., R. M. Charlton's R. 228.

Clark's case, 9 Wend. 212:-" An offence made indictable by statute is a crime within the meaning of the Constitution and laws of Congress on the subject." Ib. 222-Crime is synonymous with misdemeanor ;-citing 4 Bl. c. 5.

See the use of the term "subject matter," in Greenough's case, 31 Verm.

termine what may be treason, felony, or crime, in view of this provision.

Such a standard can be developed only by the history of the laws of the colonies and States.' It seems competent to argue that the personal law of slavery and of property in respect to slaves had prevailed under the concurrent juridical action of all the colonies, and, in each, with the support of the imperial or national authority, until the revolution; that although, when property in slaves had ceased to be supported by universal jurisprudence, it was no longer supported by the national law having quasi-international extent, yet it continued in each colony as an effect of its local law, jus proprium, and, therefore, had the same jural character as before; that, even if it had, by one or more States, been abolished as being contrary to natural reason or justice, and not simply on the ground of expediency, yet such abolition was not, necessarily, a denial, even by such States, of its jural character in other States wherein it continued, or an assertion that in such States, also, it was contrary to natural reason or justice; that, simply on the principle of the continuation of laws, it must be presumed, in an international compact, that the parties continue to recognize the jural character of each other's laws; that a presumption in favor of the jural character of relations established by the laws of other states is, in fact, one of the elementary or axiomatic principles of jurisprudence;' that, before an international compact should be interpreted on the ground that the jural character of slavery in the slaveholding States had been denied by the non-slaveholding States, some positive declarations to that effect, anterior to or contemporary with the formation of the compact, should be shown; that, so far from there being any such declarations, the written and unwritten jurisprudence of the non-slaveholding States contains many recognitions of the validity of the slave laws of the slaveholding States; and that, above all, the Constitution itself contains some provisions which, as national private law,

1By such a principle Governor Seward appears to have refused to deliver up a person on the charge, in Pennsylvania, of fornication; and another, charged in New Hampshire with adultery. 2 Seward's Works, 479.

2

Compare ante, § 316.

3

Ante, §§ 33, 119.

support, in certain circumstances, rights and obligations incident to slavery, and others which involve its recognition as an effect of the local (internal) law, by the national government, in such States as may have adopted it or allowed it to continue.'

8707. Such observations may apply to questions like those arising on the demands made upon Governor Seward for persons charged with the abduction of slaves from Virginia and Georgia. It does not appear to be a question whether the forcible abduction of a free negro, such as was charged on the part of Pennsylvania, in 1791, in the case cited, should be recognized as a crime within the meaning of this provision. Kidnapping is a crime at common law,' and also, without doubt, by the statutory enactment of every State, and it does not appear that the Legislatures or the judiciaries of any colony or State ever made any distinction of the act according to the color or race of the person stolen, kidnapped, or abducted.

If the person seized or removed should have been, by the laws of some other State, to whose law he had formerly been subject, a chattel-slave, or a bondman, it would still depend upon the several will of the State in which he should be so seized whether the act should or should not be a crime by its laws: unless the right to seize and remove in such case has been given by the Constitution of the United States. For, except as determined by that instrument, the status of such a person is always determinable by law resting on the several will of the State in which he may be found; and there is nothing in international law, acting on states or nations as its subjects, to qualify this assertion. This has in part been shown in previous chapters, and will be further maintained in another part of the work. Whether there is anything in the Constitution of the United States, having the authority of national law with international effect, to limit the power of the States in this respect so as to legalize such seizure and re

2

1 Ante, § 484.

Raymond, 474. 4 Bl. Comm. 219:-" Kidnapping being the forcible abduction and carrying away of a man, woman, or child from their own country, and sending them to another.'

moval of a slave, when it would otherwise be unlawful by the law of the State into which he may have escaped, is a question which will also hereinafter be fully examined.'

§708. It is apparent that the question of the extent of the terms of this provision may arise in many cases occasioned by violations of the penal codes of the slaveholding States. To say nothing of differences as to the rightfulness of property in slaves, or rights over persons in involuntary servitude, the laws forbidding the instruction of slaves and persons of color, laws to prevent speaking or writing against the policy or morality of laws sustaining slavery, and others of similar character, are not accordant with the juridical standard of right received in other States. But unless the solution of such controversies can be placed in the hands of the judiciary, it seems impossible to arrive at any definite rule in such cases.

§709. The persons who may be demanded must also be charged with treason, felony, or other crime, and have fled from justice. It has been urged in some of the cases that the charging intended by the Constitution must be some formal accusation by the State through its appointed officers; or that the "justice" spoken of should be taken to mean the vindicatory machinery of the law put in motion to pursue the offender, as distinguished from the law itself against which the person demanded may have offended; that until thus actually pursued he could not be said to have fled from justice, though he might have actually removed from the State in the apprehension that the pursuit would be made. The person holding the chief executive authority of the State is not an officer to whom the initiatory steps of that pursuit are assigned by the State law, though he may facilitate it when commenced, as by issuing proclamations for the apprehension of offenders. It would seem, from the statute and cases, that the demand of the Executive should be accompanied by some charge made by some other person, though a formal proceeding of a grandjury or prosecuting officer of the State is not usually considered necessary. The oath of any private person professing

1 See post, Ch. XXVII.

VOL. II.-26

2 See Ante, § 695.

to be cognizant of the offence alleged, such as would induce a magistrate of the place where the offence is said to have been committed to issue an ordinary warrant of arrest, has generally been held a sufficient charge;' and the fact that the person so charged had actually removed from the jurisdiction in which the offence was committed has been taken to be, in itself, a flight from justice.'

The person demanded must also have fled from the justice of the demanding State, by having therein committed the treason, felony, or other crime charged against him. However contrary the act charged may have been to the laws of the State making the requisition, it must also have been committed within its territorial jurisdiction.'

§ 710. The persons who may be demanded and delivered up as fugitives from justice are further described in this provision as being charged with treason, &c., in a State, demanded by the executive authority of such a State, on being found in another such State, and are required to be delivered up for the purpose of being removed to the State having jurisdiction of the crime. The question of the extent of the word State, in this clause, does not appear to have been raised in any of the

1

1 Johnson v. Riley, 19 Geo. 133; Thornton's case, 9 Texas, 645,-Indictment found, or an affidavit, before a judge or magistrate, charging; which last was held sufficient in Johnston v. Vanamringe, 5 Bl. Ind. 311. In a portion of the Opinion in Kentucky v. Dennison, which will hereinafter be cited, Judge Taney intimates that charge implies some exercise of the judicial function; that the person must be 'charged in the regular course of judicial proceedings."

Compare, on these questions, Opinion of Edmund Randolph, Am. State Papers, Misc. I, 42; Gov. Fairfield's (of Maine) Opinion, in 6 Am. Jurist, 1st Series, 226. Hayward's case, 1 Sandford's N. Y. Superior C. R. 701, under the State law of 1839, ch. 350, is authority, by parallel, on these points. Whether a person may be arrested by judge's warrant, in view of a subsequent demand on the Executive, is a different question. This is allowed by judicial practice in some of the States. Dows' case, 18 Penn. 37; State v. Buzine, 4 Harrington, 575; Goodhue's case, 1 Wheeler's Cr. Cases, 427, S. C. 2 John. Ch. 198; Fetter's case, 3 Zabr. 319. In some of the States this is authorized by special statute.

'Ex parte Smith, 3 McLean's R. 132. Fetter's case, 3 Zabr. 320. Mr. Wolcott, Atty. Gen. of Ohio, in his Opinion of March 7, 1860, in case of Brown and Meriam, said:-" The necessity of insisting on rigid proof of flight will not be doubted by any one familiar with the fact that in some of the States a practice has grown up of demanding the surrender, as 'fugitives from justice from those States,' of persons who have never been within their limits, on the legal fiction of a constructive presence and a constructive flight." If the fugitive is already held on a charge of crime by the State from which he is demanded, he is not to be delivered up; but, if discharged on that charge, the Sheriff may detain him to be delivered on the Governor's warrant. Troutman's case, 4 Zabriskie, 634.