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THE VIRGINIA CONTROVERSY.
TO THE LIEUTENANT-GOVERNOR OF VIRGINIA.
STATE OF New York, EXECUTIVE DEPARTMENT,
Albany, September 16, 1839. Sır: Having just arrived in this city, I find your letter of the 30th August last. I left Albany on the 30th July last. On that day and within an hour before my departure, Mr. Caphart delivered to me the requisition mentioned in your letter. I did not doubt on reading the requisition that the offence alleged against the accused was considered by you as one “deeply affecting the general interest of the commonwealth of Virginia;" and I may add that upon that ground as well as for the reason that it was the first requisition which had been made upon me on such a charge, I thought the subject deserved grave consideration. I learned from Mr. Caphart that the accused were at that time imprisoned in New York waiting my decision on the requisition, and that the slave alleged to have been stolen had been retaken by him and restored to his master before the requisition was made. No particular inconvenience seemed likely to result from delay, and previous engagements prevented my remaining here to examine the subject at that time.
The affidavit annexed to the requisition and containing the charge against the accused was in these words :“Norfolk Borough, to wit :
“This day personally appeared before me M. King, a justice of the peace of the borongh aforesaid, state of Virginia, John G. Colley of said borough, and made oath that on or about the 15th instant Peter Johnson, Edward Smith, and Isaac Gansey, now attached to the schooner Robert Center, at present in New York, did feloniously
steal and take from the said Colley, a certain negro slave named Isaae, the property of said Colley. Given under my hand and seal this twenty-second day of July, one thousand eight hundred and thirty-nine.
M. KING, Mayor and J. P.”
A hasty perusal of this paper raised doubts whether it sufficiently charged a felony under the laws of Virginia. I expected to arrive at Auburn within a few days, and determined to consider and decide upon the subject at that place. I thought it proper to specify the points in which the affidavit seemed defective in order that they might be supplied, if Mr. Caphart thought proper by a supplemental affidavit, which from his knowledge of the transaction I did not doubt he could make. Lest some misapprehension of my purpose might occur, I directed my secretary to deliver to Mr. Caphart the informal note mentioned in your letter, and to transmit a copy of the same to the sheriff of New York to be delivered to the accused. That note was as follows:
“ Albany, July 30, 1839. “The governor has received on the eve of his departure from Albany, a requisition issued by the executive department of Virginia for the delivery of Peter Johnson, Edward Smith, and Isaac Gansey, as fugitives from justice. The papers annexed to the requisition are in some respects defective and unsatisfactory. Especially are they defective in proof that the persons demanded are fugitives from Virginia, and that they are in this state. The applicant may supply this proof. On the other hand, inasmuch as the offence is one of a grave character, and the requisition demanding the surrender of three persons supposed to be citizens of this state, is grounded not as is customary upon the finding of a grand jury, but upon a brief and somewhat unsatisfactory affidavit, the governor deems it his duty to give them an opportunity to be heard before deciding upon the requisition.
“The governor therefore directs that a copy of this note and also copies of the papers be delivered to the applicant, and that copies of the same be transmitted to the sheriff of the city of New York, who is hereby requested to deliver the same to the parties demanded, now said to in his custody.
“The governor will receive any communication addressed to him at Auburn, and will pass upon the subject within a few days.”
I left the city under the expectation that on my arrival at Auburn I should receive communications from Mr. Caphart and from the accused. But I can not say that Mr. Caphart had any other means of understanding that expectation than the intimation expressed in the note. I did not reach Auburn until after the expiration of fifteen days. I learned there from the public newspapers that the recorder of the city of New York had discharged the accused upon a writ of habeas corpus. I received no communication on the subject from Mr. Caphart, nor from the accused, nor from any person on their behalf, and I supposed the discharge had taken place on the ground that the requisition and affidavit were deemed by the recorder insufficient to justify the detention of the prisoners. I inferred from Mr. Caphart's silence that he had abandoned the application, or that he acquiesced in the decision of the recorder. But for your letter of the 30th of August, I should have remained under this erroneous belief. I have made this statement at length, because the circumstances unexplained were calculated to induce a belief on your part that there had been neglect in answering the demand contained in the requisition.
Your communication calls me now to consider the application upon the papers as they were originally submitted to me.
With the most respectful deference, I still think that the charge contained in the affidavit annexed to the requisition is defective in substance, because it does not state the place nor the county, nor even the state in which the alleged felony was committed. The affidavit may be strictly true, and yet the felonious taking averred might have taken place in Maryland, or even in this state. It can not be said that the defect is supplied by the requisition, for the requisition assumes only to recite from the affidavit, “Whereas it appears by the annexed affidavit (which is hereby certified as authentic) that Peter Johnson, Edward Smith, and Isaac Gansey are fugitives from justice from this state, charged with felony.” I am not prepared to admit that if the requisition contained all the necessary averments it would be safe to overlook the defects in the affidavit. I
very cheerfully concede, however, upon a more careful perusal of the paper, that the averment that the accused are “now attached to the schooner Robert Center, at present in New York," is sufficient to show that they were in this state at the time the requisition was issued.
I do not fear that you will consider my objections to the requisition and affidavit as technical or captious. The power of delivering fugitives is one of the highest importance, and deeply concerns the liberty and security of citizens. In such cases, statutory requirements and even technical forms of proceeding are safeguards against the arbitrary or capricious exercise of executive authority.
But it is by no means my wish to protract unnecessarily the correspondence on this subject, or to avoid a decision upon the important principle it involves. I beg leave, therefore, to state most respectfully that, even were I to admit that, the affidavit was sufficient in form and substance to charge the defendants
with the crime of stealing a negro-slave from his master in the state of Virginia, as defined by the laws of that state, yet in my opinion the offence is not within the meaning of the constitution of the United States. The words employed in the constitution,
treason, felony, or other crime,” are indeed very comprehensive. It has long been conceded that citizens of the state upon which the requisition is made, are liable to be surrendered as well as citizens of the state making the demand; and it is further regarded as settled that the discretion of the executive in making the demand is unlimited, while the executive upon whom it is made, has no legal right to refuse compliance if the offence charged is an act of “ treason, felony, or other crime,” within the meaning of the constitution. 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 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 laws 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 acts constituting the offence charged are recognised 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 recognise 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 can not doubt that this construction is just. Civil 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 principle, if adopted, would virtually extend the legislation of a state beyond its own territory and over the citizens of another state, and acts which the policy and habits of one state might lead its legislature to punish as felonious, must be considered of that heinous character in another state for certain purposes, while for all other purposes they would be regarded . as mere violations of moral law. In some of the states of the Union, adultery is made a felony; in another, the becoming a father of an illegitimate child is made a crime; and in another, marriage without license or other formalities is penal. To admit the principle that violations of these and similar laws, which are in their character mere municipal regulations adapted to the policy of a particular community, are “ felonies” and “crimes” within the meaning of the constitution, would involve the most serious consequences by imposing obligations which it would be impossible to execute. It is evident there must be some limit to the description of “crimes” meant by the constitution; and that which I have applied in this instance seems to me to give full and fair scope to the provision, and at the same time preserve the right of exclusive legislation to each state over persons confessedly within its jurisdiction, while it preserves that harmony which is so essential to our mutual interests.
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.
But I think there can be no controversy upon this point. I need not inform you, sir, that there is no law of this state which recognises slavery, no statute which admits that one man can be the property of another, or that one man can be stolen from another. On the other hand, our constitution and laws interdict slavery in every form. The act charged in the affidavit, if it had been committed in this state, would not have contravened any statute, nor is it necessary to inform you that the common law, which is in force in this state when not abro