consequence of the real and supposed analogies between the two provisions, which have been alluded to, it will be convenient to consider the first question in its application to each provision, before taking up the second question.

§ 693. The first of these questions is to be considered in the remainder of this chapter. As particularly directed to the first of these constitutional provisions, it is

Who are the persons who may be the objects of the demand and delivery contemplated by the provision and by the first and second sections of the act of Congress of 1793, which are the only enactment of the national legislature on this subject?1

This will be determinable in part by the force of the words treason, felony, or other crime." In a demand under this clause, the law of the State in which the act charged was committed must of course have characterized it as treason, felony, or other crime. If the law of the State into which the person demanded may have fled should have given the same character to such act, it may be presumed that the correspondence of the demand with the provision, in that requisite, will not be matter of dispute between the two States; even though the act charged should be punishable by the law of no other State. But it is evident that the act charged as such, by the law of the State wherein it was committed, may be one which, in the State into which the person claimed has fled, is not known as an act subject to legal penalties. In such case the question must occur by what legal standard is the extent of these words in the provision and the character of the act charged as "treason, felony, or other crime," to be determined? Some disagreement on this question would seem inevitable between States of this Union, when one may by punitory laws propose to secure a condition of bondage or civil disability unknown to the law of the other, and when one may ascribe liberty of condition to all and protect its enjoyment by all within its jurisdiction without reference to rights claimed, by another State, as belonging under private international law to its citizens in respect to their escaped slaves..

1 See the act noted post, in the beginning of Ch. XXVIII.

§ 694. There are a number of decisions in cases involving a judicial consideration of the force of these terms. But there has been, I believe, no case of this kind, wherein the act charged as being within the scope of these words was one whose character would thus be differently regarded under the punitory laws of States thus differing in their respective laws of personal condition, earlier than the recent case on petition for a mandamus in the Supreme Court of the United States, December Term, 1860, entitled-Ex parte: in the matter of the Commonwealth of Kentucky, one of the United States of America, by Beriah Magoffin, Governor, and the Executive Authority thereof, Petitioner, v. William Dennison, Governor of the State of Ohio. The case is not as yet reported. The extracts here given from the opinion of the court, pronounced by Chief Justice Taney, are from a printed copy received from the clerk's office. In the opinion no mention is made of the circumstances on which the case arose. From the documents in the Governor's special message to the Legislature of Ohio, of Feb. 12, 1861, it appears that Willis Lago was claimed by the Governor of Kentucky, May 31, 1860, as charged with "the crime of assisting slaves to escape.""

On the question, whether the act charged was a crime within the meaning of the Constitution, the Chief Justice says:Looking to the language of the clause, it is difficult to comprehend how any doubt could have arisen as to its meaning and construction. The words 'treason, felony, or other crime,' in their plain and obvious import, as well as in their legal and technical sense, embrace every act forbidden and made punishable by a law of the State. The word 'crime' of itself includes every offence, from the highest to the lowest, in the grade of offences, and includes what are called 'misdemeanors,' as well as treason and felony. (4 Bl. Com., 5, 6, and note 3, Wendell's edition.)

In the indictment, the grand jury "accuse Willis Lago, a free man of color, of the crime of assisting slaves to escape, &c., committed as follows, viz.: The said Willis Lago, free man of color, on the 4th day of October, 1859, in the county aforesaid, not having lawful claim, and not having any color of claim thereto, did seduce and entice Charlotte, a slave, the property of C. W. Nuckols, to leave her owner and possessor, and did aid and assist the said slave in an attempt to make her escape from her said owner and possessor, against the peace and dignity of the Commonwealth of Kentucky."

"But as the word crime would have included treason and felony, without specially mentioning those offences, it seems to be supposed that the natural and legal import of the word, by associating it with those offences, must be restricted and confined to offences already known to the common law and to the usage of nations, and regarded as offences in every civilized community, and that they do not extend to acts made offences by local statutes growing out of local circumstances, nor to offences against ordinary police regulations. This is one of the grounds upon which the governor of Ohio refused to deliver Lago, under the advice of the attorney general of that State.

"But this inference is founded upon an obvious mistake as to the purposes for which the words 'treason and felony' were introduced. They were introduced for the purpose of guarding against any' restriction of the word 'crime,' and to prevent this provision from being construed by the rules and usages of independent nations in compacts for delivering up fugitives from justice. According to these usages, even where they admitted the obligation to deliver the fugitive, persons who fled on account of political offences were almost always excepted, and the nation upon which the demand is made also uniformly claims and exercises a discretion in weighing the evidence of the crime, and the character of the offence. The policy of different nations in this respect, with the opinions of eminent writers upon public law, are collected in Wheaton on the Law of Nations, 171; Fœlix, 312; and Martin, Vergè's edition, 182. And the English government, from which we have borrowed our general system of law and jurisprudence, has always refused to deliver up political offenders who had sought an asylum within its dominions. And as the States of

1 The mention of treason and felony makes it obvious that the provision extends to some cases not within the international rule of extradition. But does it appear from this that there is no restriction on the word crime? or that it, by itself, is not to be interpreted by that rule? Does not the specification of treason and felony, though coming under the general term crime, warrant the inference (by expressio unius, etc.) that, by itself, it is to be interpreted by that rule which excludes political offences, and in which these terms of English law are not recognized? How, in this argument, which is that referred to by the Chief Justice in the preceding paragraph, is there any “mistake as to the purposes for which the words treason and felony were introduced?''

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