principal point in the general discussion which arose out of this demand was the question, whether the act charged (admitting it to have been committed, and to have been felonious by the law of Virginia) was within the meaning of the terms felony or crime as used in the Constitution. In the letters interchanged between the Executives of the two States, it seems to have been agreed that the words should not apply to violations of law other than those for which persons could be demanded from states recognizing an obligation under customary international law to deliver up criminals on the demand of foreign governments, from whose justice they might have fled. The Executive of Virginia appears to have insisted that in these cases the law of the place where the act charged was committed should determine whether it was included in the extent of these terms. The Governor of New York held that the only acts intended are such as are criminal by the laws of all civilized countries, as well as by the law of the state upon which the demand might be made, and refused compliance with the demand in this case, on the ground that since slavery could not exist in the State of New York, the act charged could not be criminal by its law, nor, for a similar reason, was it known to the laws of most civilized countries as a crime.'

argument before Recorder Morris, on habeas corpus, on the ground that there was no evidence of their having violated any law of Virginia. 2 Seward's Works, 467.

The letters of Governor Seward, of New York, containing statements of the most important arguments in the letters of the Governor and Lieut.-Governor of Virginia, are given, under the title "Virginia Controversy," in Mr. Seward's Works, Vol. II., together with several messages to the Legislature respecting this case. On the points mentioned in the text, see particularly pp. 452, 467, 472, 475, 495. On page 452 Governor Seward argues :—“Can any State at its pleasure declare an act to be treason, felony, or crime, and thus bring it within the constitutional provision? I confess that does not seem to me to be the proper construction of the Constitution. After due consideration, I am of opinion that the provisión applies only to those acts which, if committed within the jurisdiction of the State in which the person accused is found, would be treasonable, felonious, or criminal, by the laws of that State. I do not question the constitutional right of a State to make such a penal code as it shall deem necessary or expedient, nor do I claim that citizens of another State shall be exempted from arrest, trial, and punishment in the State adopting such a code, however different its enactments may be from those existing in their own State. The true question is, whether the State of which they are citizens is under a constitutional obligation to surrender its citizens to be carried to the offended State, and there tried for offences unknown to the law of their own State. I believe the right to demand, and the reciprocal obligation to surrender, fugitives from justice between sovereign and independent nations, as defined by the law of nations, include only those cases in which the

The abduction of a slave, which is contemplated in the argument of Governor Seward, is supposed to have taken place with the concurrence of such slave, and with the design of placing him in a jurisdiction where he would be free. But the reasoning on which a delivery of the persons charged in this case was refused would apply as well to a case where the slave had been enticed away and sold. It would not be the crime of kidnapping a free person, as known to the laws of New York.'

A similar question arose, in 1841, on a requisition made by the Governor of Georgia upon the Governor of New York for the delivery of one Greenman, charged, on affidavit, with having stolen, taken, and carried away a negro womanslave, and also certain articles of wearing apparel, in violation of the laws of Georgia. From the representations made at the time, by the agent of Georgia, to the Governor of New York, it appears that the larceny charged was committed, if at all,

acts constituting the offence alleged are recognized as crimes by the universal laws of all civilized countries. I think it is also well understood that the object of the constitutional provision in question was to recognize and establish this principle in the mutual relations of the States, as independent, equal, and sovereign communities. As they could form no treaties between themselves, it was necessarily engrafted in the Constitution. I cannot doubt that this construction is just. Čivil liberty would be very imperfectly secured in any country whose government was bound to surrender its citizens to be tried and condemned in a foreign jurisdiction for acts not prohibited by its own laws.”

The Virginia House of Delegates passed resolutions on this subject, which the Governor transmitted with a letter to the Governor of New York. In these it was argued, from the juxtaposition of the two provisions, that they are mutually auxiliary; that the first, for the delivery up of fugitives from justice, was specially designed to protect the rights of slave-owners in such cases (2 Seward's W. 476, 477). These resolutions and correspondence having been laid by the Governor of New York before the Legislature of that State, April 11, 1840, the judiciary com, of the Assembly reported, declaring the matter to be beyond the powers of the legislative body, but added:-"They believe the positions taken by the Governor of this State to be sound and judicious, and that his exposition of the meaning of the constitutional provision in question is the only one that can be given consistently with the sovereignty of the State and the rights of the citizens, while it is in strict conformity with our federal obligations to other States, and recognizes all the rights which were intended to be secured." No proposition was submitted for the action of the House, and the committee was discharged from the further consideration of the subject. 2 Sew. W. 469. The Legislature of 1842 were of a different opinion, and, April 11, passed resolutions already mentioned ante, p. 61, note. See Gov. Seward's message in reply, 2 Seward's Works, 433. Chancellor Kent, 1 Comm. 37, note, has sai 1:-"In my humble view of the question, I cannot but be of opinion that the claim of the Governor of Virginia was well founded, and entitled to be recognized and enforced." See also the criticisms on Gov. Seward's argument in an article by Conway Robinson, Esq., in the Southern Literary Messenger for January, 1840.

by the act of inducing the slave, by presenting to her the prospect of living as a free person, to secrete herself on board a vessel bound to New York, in which the accused was a passenger, and that the apparel charged as stolen consisted of the articles of dress and ornament worn on the person of the fugitive. In support of the charge of larceny, the Governor of Georgia afterwards communicated the indictment of a grand jury against Greenman for harboring and concealing the slave, and for enticing her "to run away from her owner with the intention to appropriate the said slave to his own use, and to deprive the owner of the services of the said slave." Governor Seward's refusal to comply with the demand was, in his correspondence, based mainly on the position that the facts alleged were insufficient to support a legal charge of larceny, even according to the law of Georgia, and that the charge of kidnapping, as made by the indictment, was inconsistent with the other facts charged, or that there were "good grounds" in the case to induce the belief that the charge was "false and malicious." Governor Seward, besides this, expressly reserved the objection that the clandestine removal of the slave could not be recognized by him as theft, because property in human beings was not known to the local law of New York.'

§ 698. In 1847, requisition was made by the Governor of Maryland on Governor Shunk, of Pennsylvania, for John Mark, and others, as fugitives from justice, an indictment having been found against them under the law of Maryland, which enacts that the running away of a slave into any other State shall be felony. The Governor refused to comply with the demand, on the ground that the Constitution and laws of the United States

See Georgia Controversy, in 2 Seward's Works, 519. On p. 522:-" It may perhaps be unknown to your Excellency that while the kidnapping of a person by fraud or violence, or his abduction against his will, or any unlawful seizure of him or abridgment of his liberty, is regarded in this State as a high crime, it is held that the relation of master and slave, in other States, does not constitute a property in the person of the slave so as to render the slave a subject of theft from the master." P. 539:-"I beg leave to observe that I am not to be understood as conceding that a human being can, in law, be regarded as 'goods' and the subject of larceny. I respectfully reserve that question." The resolutions of the Virgi nia Legislature (ante, p. 10, n.) maintain that the provision goes beyond the requirements of international law, and affirm that "there is no civilized nation which has not within the 19th century recognized slaves as property."

Ante, p. 22.

having embraced the case within the provision for the surrender of fugitives from servitude, no State legislation could evade those provisions or alter the character of the transaction, so as to include the case under the provision for the surrender of fugitives from justice.'

2

§ 699. In February, 1860, demand was made by Governor Letcher, of Virginia, on the Governor of Ohio, for Owen Brown and Francis Merriam, under indictment in Virginia, "for advising slaves to rebel and make insurrection; for conspiring with slaves to rebel and make insurrection; and for conspiring with certain persons to induce slaves to rebel and make insurrection."

The refusal of the Governor of Ohio to make the required extradition was based upon the ground taken in the opinion of Mr. Wolcott, the Atty.-Gen'l of Ohio, that no evidence had been furnished of the flight from Virginia of the persons demanded. It seems to have been doubted, too, whether the Governor had power to make extradition in the absence of any authority specially conferred by the State. No question as to the legality of slavery was raised by the Governor or the Attorney-General in this case.

In the case of Lago, already mentioned, the Governor based his refusal upon the opinion of the Attorney-General, that the act charged was not within the terms of the provision.*

' Rollin C. Hurd's Personal Liberty, &c., p. 601, and references.

* The persons demanded were supposed to have participated in the invasion or conspiracy of John Brown. A similar demand for others concerned was, I believe, made on the Governor of Iowa, and refused.

Ante, p. 122, note. In his message to the Legislature, with the documents in this case and that of Lago, Gov. Dennison gives a letter of Hon. John W. Wright, Jan. 31, 1861, to the Governor of Indiana, describing the case of one Brown, a white man, who, in 1855, was "taken in that State from his own house without a requisition, on a charge of inviting slaves to leave Kentucky, and the proof of his guilt was a letter he wrote in Indiana to a man in Kentucky, and it was not pretended that any act had been done by him in Kentucky." Mr. Wright says that the Governor of Ohio "said and swore to it" that a requisition for the kidnappers of Brown would not be complied with. He also says, "When Governor Willard came into office I had a conversation with him on this case. He knew all the facts when they occurred, and he swore to me he would never deliver up an abolitionist from this side till they gave up kidnappers from Kentucky, and Willard often joked and told the compromise he had made."

"In his written opinion, April 14, 1860, Mr. Wolcott says:-"The question is thus presented, whether, under the federal Constitution, one State is under an obligation to surrender its citizens or residents to any other State on the charge that they

$700. The solution of these questions may be involved in that of the more general question-What may be treason, felony, or crime, in view of this provision?

It may be assumed, as admitted in the various opinions, that the legal nature of the act charged is to be determined either by the law of the State which makes the demand, or by that of the State in which the alleged fugitive is found, or in some criterion of national extent, common to all the States.

There are a few judicial opinions in which an answer to this general inquiry has been attempted.

In Commonwealth v. Green (1822), 17 Mass. 547, Parker, Ch. J., said: "The Constitution has merely made that obligatory between the States which, between nations entirely foreign to each other, was done from comity, viz., the delivering up of criminals who have fled from justice." But it does not appear whether the judge would extend the operation of this clause only to cases like those in which extradition has been made as by international comity.

In the opinion of Savage, Ch. J., in Clark's case (1832), 9 Wend. 221, it is held that the standard of crimes for the commission of which international extradition may be made is not the measure of this provision; that it gives a "more perfect remedy; one which should reach every offence criminally cognizable by the laws of any of the States."1

In Fetter's case (1852), 3 Zab. 315, it is said by Green, Ch. J., that the provision "makes obligatory upon every member of the confederacy the performance of an act which previously was of doubtful obligation." But it does not appear whether the judge would limit the provision to cases in which extradition is

have committed an offence not known to the laws of the former, nor affecting the public safety, nor regarded as malum in se by the general judgment and conscience of civilized nations. This question must, in my opinion, be resolved against the existence of any such obligation. The right rule, in my opinion, is that which holds the power to be limited to such acts as constitute either treason or felony by the common law, as that stood when the Constitution was adopted, or which are regarded as crimes by the usages and laws of all civilized nations. This rule is conformable to the ancient and settled usage of the State." Mr. Wolcott adds that not even in every case which may apparently fall within the rules here asserted is the power of extradition to be exercised.

The judge even says, ib. 219:-"It is not necessary, as under the comity of nations, to examine into the facts alleged against him constituting the crime; it is sufficient that he is charged with having committed a crime."