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.

VOL. II.-25

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

1 Parties were charged under the State law of 1778. Gov. Mifflin, of Pennsyl vania, 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

'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

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 provision 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:-"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.