what sort of protection should we be affording to all the other citizens, especially those living upon the border, exposing them, as they would be exposed, to the depredations of all the rogues in the union.

The last point made by the counsel for the accused, upon the construction of this article of the constitution, is one of great importance, and on which I entirely concur with him, to wit, that the executive making the demand is bound to furnish satisfactory evidence that the accused has fled from justice. It is not every person who has committed an offence in one state and is found in another, who is to be delivered up, but the words are, a person charged in any state with treason, felony or other crime, who shall have fled from justice," &c. He must both have been charged and have fled, in order to bring the case within the terms of the constitution, and one is as necessary to be proved as the other.

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This has been settled by the justices of our supreme judicial court, in a case occurring in 1837, in which their opinion was requested by the then governor of the state. The demand was for a person who was indicted in another state for fraud committed in the sale of lands, and the court say, "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 by indictment with the fraud before set forth, which, being indicted in such state, may be presumed to be there regarded 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."

But admitting this, a question of some difficulty remains, as to what will constitute a fleeing within the meaning of the constitution. It has been contended by the counsel opposed to the recall of the warrant, that whenever a person is legally charged with the commission of treason, felony or other crime in one state, and is found in another, that is sufficient evidence of a fleeing from justice. To show that this position is untenable let us suppose a case. A person commits an offence, (say larceny) in this state, where he continues subsequently to reside for several years, engaged in his

usual avocation, the offence being a matter of public notoriety, and no one attempting in any way to disturb him by a prosecution. He then removes to the state of Georgia, with his family and property, going away, not clandestinely, but openly, in the day-time, and by the usual mode of conveyance. He continues his residence in Georgia for several years, pursuing his regular business there, and demeaning himself in all respects as a good citizen. Can this man properly be considered as a fugitive from justice, and should the authorities of Georgia surrender him to be returned to this state to be tried on an indictment, procured, perhaps, by a personal enemy, and for an offence committed some twenty years before? This may be a strong case, but it tests the principle involved. It is admitted that he is guilty of the crime of which he stands charged, and he is found within another jurisdiction, and if this be regarded as sufficient, according to the argument of counsel, then the person in the case supposed, must be delivered up, the governor having nothing to do but to see that a copy of the indictment is duly authenticated. I cannot concur in the supposed correctness of these views, but on the contrary, am of the opinion that all the circumstances should be inquired into in relation to the commission of the offence, the subsequent conduct of the accused, the time and manner of his leaving the state having jurisdiction of his offence, &c., &c., in order to determine the question whether he has fled to avoid a prosecution. This principle or right being established, each case, of course, will be determined by its own peculiar circumstances. While some will be clear and obviously within the purview of the constitution, others will be doubtful, leaving ample room for honest minds to differ. Confining myself to what may be considered as having a bearing upon the case in question, I am clearly of the opinion that where one is conscious of having committed "treason, felony or other crime" in one state, and leaves that state, knowing that by remaining he is subject to a prosecution, a sufficient time not having elapsed, or other circumstances occurred to remove all reasonable apprehension of a prosecution, he may fairly be regarded as a fugitive from justice, within the meaning of the fourth article of the constitution.

Without recapitulating the facts which have been proved in this case, I am constrained to say, that they appear to me to bring the case within the rule I have laid down, and consequently that the warrant was properly granted and ought not now to be recalled.

It would have afforded me great pleasure, if the facts would have permitted me to arrive at a different result. It is natural, that our sympathies should be, to some extent, enlisted in favor of our own citizens; besides, I am free to say, that, in my opinion, this right under the constitution, of demanding fugitives from justice, has been, in frequent instances, perverted to mere mercenary purposes, dragging men from one state to another, and subjecting them to the fear of punishment in a penitentiary, in order to coerce the payment of a debt by the relatives of the accused, who perhaps were poorly able to endure such a diminution of their means of subsistence, but who would prefer poverty to disgrace. I have therefore when called upon to act officially in these cases, looked into them scrutinizingly if not suspiciously, and have in most instances refused both to make a requisition upon the executive government of other states, and to issue warrants for the apprehension and delivery over of persons found residing here. But when a case occurs in which all the preliminary requirements are made out, and the case falls clearly within the provisions of the constitution, I cannot, without violating a strong sense of duty, and disregarding my oath of office, refuse to issue a warrant.

It is insisted, that if the warrant in this case be not recalled, it will be the duty of the executive to deliver up Philbrook and Kelleran to the authorities of Georgia, as it is alleged, there is no distinction in the two cases. But, with deference, it appears to me there is a very wide difference. In that case, the accused, taking the facts as reported by my predecessors, were not conscious while in Georgia of having committed any offence, and did not leave there, knowing that by remaining, they were liable to a prosecution. On the contrary, it would seem, that they were not aware that the slave was on board their vessel until after they had been several days at sea, when they found him in the hold, where he had secreted himself prior to the sailing of the vessel. If the

case now under consideration does not differ from the one alluded to, then I have totally misconceived the mass of evidence which has been introduced.

In the Prerogative Court of Canterbury.
March 1, 1839.

IN THE GOODS OF BETTY RUSSELL, WIDOW.
Practice in pleading foreign law.

THE deceased died on the 24th of September, 1838, having shortly before executed a testamentary paper relative to her property in France, which was invalid by the law of that country. A notarial certificate was produced of the law of France on this point. Sir H. Jenner.-Are we in the habit of receiving notarial copies as to foreign law?

Addams, D., supporting the motion for limited administration. The certificate refers to the specific article in the Code Napoleon.

Sir H. Jenner.—I think it probable that the law has been truly stated; but this must not be understood as a precedent for receiving notarial certificates as to foreign law: all other courts require the law to be regularly verified. If you have looked at the code Napoleon, and find it truly stated, you may take a limited administration. Understand, that I do not admit this merely as a notarial certificate, but as the affidavit of a person skilled in the foreign law.

February 22, 1840.

IN THE GOODS OF MARIE DE BLANCO.

Pleading foreign law.

This was a motion for a grant of administration to the effects of a foreigner dying abroad intestate, by the law of the foreign country, which was set forth in a certificate of two foreign lawyers, attested before a notary.

Sir H. Jenner.-The court cannot take the law in this form; it must be pleaded in the usual manner. In a former case, (in the goods of Betty Russell,) reported above, the court went out of its way, and, under the circumstances, admitted a notarial certificate; but it expressly said it must not be made a precedent, and that the law must be pleaded in the usual way.

LEGISLATION.

NEW YORK.

The legislature of this state, at its sixty-third session, commencing in January last, passed three hundred and eighty-seven statutes, and several joint resolutions.

Masters in chancery, after the expiration of their office, are allowed to complete business commenced before. Chap. 38.

Married women. The life of a husband may be insured by his wife, for her own benefit, and free from any claim of the creditors or representatives of the husband. Chap. 80.

Where a married woman has an inchoate right of dower in any lands sold under a judgment, or divided under a decree of partition, the value of such right is to be ascertained by the court, and the amount thereof paid or secured. The same proceedings are required, where one has a vested or contingent interest in such lands. Chap. 177.

The claim to the service of and the fact of his escape,

Fugitives from service or labor. an alleged fugitive, his identity, are to be tried by a jury, instead of the manner provided in the revised statutes. Chap. 225.

Acknowledgment of deeds. The appointment of commissioners, in other states, to take the acknowledgment and proof of deeds and other instruments, and to administer oaths, is authorized by chap. 290.

Kidnapping. The governor is authorized to take such measures, as he may deem necessary, to procure the delivery and restoration of persons transported out of the state, for the purpose of being held in slavery, or seized and imprisoned upon the pretence that they are slaves. Chap. 375.