The act of Congress of 12th February, 1793, in pursuance of the Constitution of the United States, made ample provision for the surrender of these individuals as fugitives from labor, on the "claim of the party to whom such labor is due." It was, therefore an infringement of the federal Constitution to pass a law transferring to the governor of Maryland, the right to demand a surrender; thus making the very act of escape which under the Constitution and laws, gave the owner a right to demand a surrender of his property into his own custody, a ground for depriving him of that right, and conveying his property to the custody of a state government, which might or might not respect his constitutional rights of property." In Maine it was objected, 1840, that the provision of the Constitution includes only crimes of a high and aggravated nature. Governor Fairfield answered, "The phraseology is 'treason, felony or other crime,' not other crimes of a high and aggravated nature; but crimes in their absolute and unqualified sense.' *There is [603 not wanting judicial authority on the point. 992 In the matter of John L. Clark,' on habeas corpus, 1832, it appeared that the prisoner was in custody by virtue of a warrant issued by the governor of New York, under a requisition by the governor of Rhode Island, charged with fraudulently abstracting money from the Burrilville Bank in that state, by the laws of which the act was made criminal and punishable by fine only. It was objected that no "crime" had been committed. The answer of the court was: "An offence of a highly immoral character is stated in the warrant, and is certified by the governor of Rhode Island to have been made criminal by the laws of that state. This is evidence enough in this stage of the proceedings, of the nature of the offence." It was further objected then that a crime of greater (3) 9 Wend. 212. atrocity was intended by the Constitution than was charged in that case. The court answered: "It seems that when proceedings are instituted by the comity of nations, they apply only to crimes of great atrocity, or deeply affecting the public safety. But with the comity of nations we have at present nothing to do, unless, perhaps, to infer from it that the framers of our Constitution and laws intended to provide a more perfect remedy; one which should reach every offence criminally cognizable by the laws of any of the states; the language is, 'treason, felony or other crime;' the word crime is synonymous with misdemeanor,' and includes every offence below felony, punished by indictment as an offence against the public." 604] *In the matter of Hayward,' 1848 the Superior Court the city of New York, said: "It is immaterial to consider what is the nature of the offence charged against the prisoner, for we have only to consider whether it be a crime according to the law of the state from which the party is alleged to have been a fugitive." And of that opinion was the Supreme Court of Georgia, as expressed in the case of Johnston v. Riley.' The Supreme Court of Maine, in 1837, gave to the governor of that state, their opinion on this and other points, in the following terms: "In our 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 demand, and not otherwise.” The Supreme Court of New Jersey, In the matter of 1 4 Black Com. 5. 3 13 Geo. 97. 21 Am. Law Jour. N. S. 271. 4 6 Am. Jurist, 226. Fetter,' held that it is not necessary, in order to warrant the surrender or detention of the fugitive, that the crime with which he stands charged should constitute an offence at the common law. It was objected in that case that the indictment did not show an offence at common law. It purported to be for grand larceny, but the facts stated, it was claimed, did not constitute the crime. The court said: "Admitting the position taken by counsel, it is nevertheless certified by the governor of *California, under the laws of that state. It is [605 moreover an offence of a highly immoral character, and as appears by the bill of indictment, which must be regarded as prima facie evidence of the fact, is a crime by the law of the state of California.' 13 Zab. 311. * In In re Greenough, 31 Vt. 279, it appeared upon the return to the writ of habeas corpus, that Greenough was held in custody under and by virtue of a warrant of the governor of Vermont, issued upon a requisition from the governor of Illinois, which stated that Greenough had been indicted in Cook county, in that state, for obtaining money under false pretences, a crime under the statute of the state of Illinois. The question arose whether obtaining goods under false pretences was such a crime as was contemplated by the provision of the Constitution and the laws of Congress. The court said, "It is claimed in argument that the words in the Constitution, treason, felony and other crime,' should be confined to crimes of great atrocity, and such as deeply concern the public safety and are offences at common law; and that to include the crime with which Greenough is charged, as coming within the Constitution, would be an act of despotism. If this case were to be disposed of upon principles of international law and the courtesy of nations, treating the states as independent governments, there might be some plausibility, if not soundness, in the proposition that the exercise of the right should be confined to crimes of great atrocity, which deeply concern the public safety. But our Constitution contemplates the exercise of a much broader power than was ever claimed to exist under the law of nations, independent of treaty stipulations, and it is a power most salutary in its general operation, inasmuch as it serves to discourage the commission of crime by cutting off to some extent the means of escape from punishment, and we trust the exercise of this power has hitherto been as useful in practice as its character is unexceptionable in principle. This provision in the Constitution and laws of Congress has received a practical, uniform construction from Maine to Georgia, from an early day in our judicial history, if indeed it can be said to admit of construction. It has also been the subject matter of repeated judicial determination, and he must, I think, be a bold man, who at SECTION III. THE ACCUSATION. - Its form and when to be made. The act of Congress, Feb. 12, 1793, requires that the accusation should be by "indictment found, or an affidavit made before a magistrate of any state or territory." It is not necessary that the the present day is ready to hold that the subject matter of the complaint against Greenough is not within the Constitution and laws of congress. The language is broad and the crime charged is within its letter, and I apprehend equally within the reason and spirit of the provision. ***** It is quite possible that the general term ‘or other crime' in the Constitution should be limited by the words which precede it so as to include only crimes of a similar genus to those which may be denominated felonies, and no one can fail to see that the obtaining of goods by false pretences is a crime nearly allied to theft, and can hardly be regarded as less base.” Prisoner remanded. The question as to the meaning of the words "treason, felony or other crime" was considered in Kentucky v. Dennison, 24 How, 66. The facts in that case were as follows: The grand jury of Woodford Circuit Court, in the state of Kentucky, at October Term, 1859, returned to the court an indictment against one Willis Lago, for assisting a slave to escape, a crime by the statute of Kentucky. A copy of this indictment, certified and authenticated according to the act of Congress of 1793, was presented to the governor of Ohio, and the arrest and delivery of the fugitive demanded. The governor of Ohio, acting upon the advice of the Attorney-General of that state, refused to arrest and deliver up the fugitive, and communicated to the governor of Kentucky the reason for his refusal; which was that the offence charged against Lago was not such a crime as was contemplated by the provision of the Constitution of the United States. A motion was made in the Supreme Court of the United States in behalf of the state of Kentucky, for a rule on the governor of Ohio to show cause why a mandamus should not be issued by that court, commanding him to cause Lago to be delivered up, to be removed to the state of Kentucky. The court held that "the words treason, felony or other crime" in the second clause of the second section of the fourth article of the Constitution of the United States, include every offence forbidden and made punishable by the laws of the state where the offence is committed. In North Carolina it was held that the clause of the Constitution, under con accusation should be made before the flight of the criminal.' Its sufficiency. A copy of the indictment or affidavit, "certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged fled." "The object of this provision of the law is to enable the executive upon whom the demand is made, to determine whether there is probable cause for believing that a crime has been committed. The affidavit, therefore, when that form of evidence is adopted, must be at least so explicit and certain that if it were laid before a magistrate it would justify him in committing the accused to answer the charge." sideration, was to be so construed as to include acts made criminal by amendments in the laws of the several states, and is not limited to such only as are crimes at common law. In the matter of William H. Huges, Phill. L. (N. C.) 59; see also Brown's case, 112 Mass. 409. 1 Gov. Fairfield's opinion, 6 Am. Jurist, 226. 2 Gov. Seward of New York to Gov. McDonald of Georgia, June 15, 1841; Attorney-Gen. of Penn. to Gov. Shunk, May 15, 1847, 6 Penn. Law Jour, 412; Ex parte Smith, 3 McLean, 121; Matter of Hayward, 1 Sandf. Sup. Ct. R. 701; Matter of Fetter, 3 Zab, 311. It is not necessary that the affidavit upon which the requisition issued should set forth the crime charged with all the legal exactness necessary to be observed in an indictment. If it distinctly charge the commission of an offence, it is all that is necessary. In the matter of Manchester, 5 Cal. 237. The governor of the state issuing the requisition for the fugitive is the only proper judge of the authenticity of the affidavit; and the judge on habeas corpus, cannot go behind his action to inquire whether the affidavit was a forgery. Ib. It is sufficient if the requisition certifies that the affidavit is "duly authenticated according to the laws" of the state from which the offender fled. Ib. The certificate of the governor of one state, in demanding of the governor of another to surrender a fugitive from justice, that a copy, produced with the demand, of a complaint made on oath to a person styled a trial justice in said state, charging the fugitive with a crime, is authentic, sufficiently authenticates the capacity of the person as a magistrate authorized to receive the complaint. Kingsbury's case, 106 Mass., 223; see State v. Hufford, 28 Iowa, 891. In Ex parte White, 49 Cal. 434, it was held that a person could not be convicted in that state for a crime committed in another state, unless a prosecution had been commenced and was pending against him for the alleged crime in the state having jurisdiction of the offence. |