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LETTER II.

TO THE GOVERNOR OF GEORGIA.

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STATE OF New York, EXECUTIVE DEPARTMENT,

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Albany, July 14, 1841. Sir: Your communication of the 28th of June, relating to the requisition for the surrender of John Greenman, has been received.

The affidavits annexed to the requisition seek to charge Greenman with having committed larceny in two instances. In the first affidavit, Mr. Flournoy, the complainant states, that the said Greenman, “on the 13th of April, 1841, at the plantation of the deponent, in the county of Chatham, did feloniously steal, take, and carry away three blankets, two shawls, three frocks, one pair of ear-rings, and two finger-rings, all of the value of fifty dollars, of the goods and chattels of the deponent, contrary to the laws of the state.” The other affidavit sets forth that Greenman feloniously steal, take, and carry away, a negro woman-slave, named Kezia, the property of the deponent, of the value of five hundred dollars, contrary to the laws of said state.”

In my former communication I expressed an opinion that these affidavits were defective and insufficient in substance, because the complainant swore in each case to a legal conclusion, that the accnsed had committed a larceny, and not to facts and circumstances necessary to show that the taking and carrying away of the property and person described were felonious. I explained, by stating that the question whether a person or property had actually been taken and carried away was a question of fact to be proved by the oath of the complainant, while the inquiry whether such taking and carrying away were felonious, was a question of law to be ascertained upon an examination of the facts and circumstances proved. I remarked that the declaration of Mr. Flournoy, that the taking and carrying away were felonious was,

in judgment of law, nothing more than the expression of his opinion that the transaction was felonious. I attempted to elucidate this view by showing that a complainant could be convicted of perjury only for a false statement of facts, but never for erroneous opinions or inferences of law; and that if it should hereafter appear that although Greenman did actually take and carry away the person and property mentioned, yet that the taking and carrying away were lawful and not felonious, Mr. Flournoy could not be convicted of perjury, or held in any manner responsible. I will now beg leave to add another explanation. The word “ feloniously,” and the words “in violation of the laws of Georgia,” in the affidavits are of no force or effect, because they express only Mr. Flournoy's opinion, that the acts complained of were felonious and in violation of law, which opinion could have no legal weight against the accused in any judicial forum. The affidavits then are to be read as if those words were not found therein. The charges contained in the affidavits would then be that the defendant took and carried away the person and property mentioned, and would be defective and insufficient, because for aught that appears, the taking and carrying away might have been lawful.

I remarked in my former communication that the magistrate who should receive such an affidavit as those submitted in the present case, would thereby devolve upon the complainant the judicial responsibility which the law cast upon the magistrate himself. In the letter before me you maintain that the affidavits are sufficient. You observe that if the affidavits are sufficient in form and substance to require a magistrate in Georgia to issue a warrant for the apprehension of Greenman there, they are all that can be necessary to demand his arrest in another state. While I might not be willing to admit this position without some modification, its discussion seems not to be quite unnecessary. I apprehend there is no difference between those rules of law bearing upon the question of the sufficiency of the affidavits which prevail in the state of Georgia, and those which prevail in the state of New York. I infer your agreement in this opinion from your remark, that by the laws of all the states, including New York, it would be found that on affidavits much less positive than those against Greenman, charging a suspicion only of crime, without a detail of facts and circumstances, warrants are issued and citizens are arrested and put upon trial. Your excellency will pardon me for observing that positiveness of assertion is not all that is necessary to make a charge legal and valid. A reasonable suspicion resulting from a detail of the facts and circumstances is all that is necessary, while the most positive assertion of guilt without such a representation of the facts and circumstances as will show that they are within the personal knowledge of the complainant, and that they sustain the charge of crime is, for reasons which it can not be necessary to recapitulate, unsatisfactory and insufficient.

Blackstone in his Commentaries 4, 290, quoting Sir Matthew Hale's Pleas of the Crown, 110, says, “1. A justice hath power to issue a warrant to apprehend a person accused of felony though not yet indicted. 2. That he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself but in the party that prays the warrant, because

, he is a competent judge of the probability offered to him of such suspicion. But in both cases it is fitting to examine, upon oath, the party requiring a warrant as well as to ascertain that there is a felony or other crime actually committed, without which no warrant should be granted, as also to prove the cause and probability of suspecting the party against whom the warrant is prayed.” To this remark, Chitty adds the following note: “The magistrate should not grant the warrant without such probable cause as might induce a discreet and impartial man to suspect the party to be guilty (Hawkins, book 2, ch. 13, sec. 18). And if a magistrate should grant a warrant without an oath of circumstances affording a reasonable suspicion of the guilt, and the party prove innocent, he will be liable to an action of trespass at the suit of the party aggrieved. (2 Term. Rep. 225. 2 Wilson, 150. 2. Hawkins, ch. 13, sec. 18).” It is laid down in 1 Hale's Pleas of the Crown 110, 111, that "it is fit in all cases of warrants for arresting for felony, much more for suspicion of felony, to examine upon oath the party requiring the warrant, as well whether a felony was done, as also the causes of his suspicion, which examination should be put in writing, for the justice is in this case a competent judge of those circumstances that may induce the granting of a warrant to arrest.” The principles applicable to this subject have been well summed up in a recent treatise upon criminal law by Barbour, page 455. He says “The justice in

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deciding on granting a warrant should not regard mere allegations of suspicion, but the grounds of suspicion. The facts and circumstances must be laid before him, and these should be sufficient to make it appear that a crime has actually been committed, and that there is probable cause for charging the person complained of therewith.” He cites 1 Chitty's Criminal Law, 33, who says, “and it is the duty of the magistrate well to consider all the circumstances sworn to, and not to grant any warrant goundlessly.” In the

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court of New York in the case of Smith vs. Luce, 14 Wendell, 238, a case under the act to abolish imprisonment for debt, it was held that “the justice must be satisfied of the fraudulent intent from facts and circumstances, not from the belief of any one. •Facts must be shown to the justice which shall leave no reasonable doubt on his mind that the defendant has committed, or is about to commit the fraudulent acts mentioned in the statute.”

These general principles, derived not from the enactments of the legislature in any of the states, but from the common law received in all the states, furnish the test to which the affidavits of Mr. Flournoy have been subjected. I can not but hope that, upon a reconsideration of the subject, you will agree with me that the affidavits were not sufficient to authorize a justice to issue a warrant, and will allow me to insist that they are altogether insufficient to justify me in directing the arrest of the accused.

You observe that you can not admit the principle that the executive of a state, on whom a demand is made, may organize himself into a court and hear accusatory and defensive testimony to ascertain whether there are circumstances manifesting a felonious intent on the one hand, and the absence of it on the other. If it were necessary, on the present occasion, to enter into a controversy concerning the powers vested in the executive authorities of the states in deciding upon requisitions for the surrender of fugitives, I might maintain that the executive of a state can not be obliged, by any law of Congress, to arrest a person and deliver him over to the authorities of another state upon an accusation for which he should ascertain that there was no probable cause.

But your excellency does not deny me the right to demand such evidence, as a justice of the peace in Georgia would be bound to require before issuing a warrant, and that is

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ample for this occasion. Conceding therefore, for argument's sake, that I am not authorized to inquire into the merits of the charge, I shall be content to insist upon my right to decide upon its sufficiency.

Your excellency supposes that my objections to the affidavits are met by saying that I would be bound to receive a copy of an indictment found against the accused, and yet that an indictment does not state the facts and circumstances of a crime with more particularity than the affidavits you have submitted. It would be a sufficient answer to this argument, that you have submitted affidavits, and not indictments. I may nevertheless remind your excellency that there is a wide difference between an affidavit charging crimes and an indictment. The former is a hurried proceeding. It is the act of a single individual, a voluntary accuser. He may be ignorant, prejudiced, malicious, corrupt, and even depraved. Often, if not always, he is an aggrieved accuser. There are manifest reasons, then, for scrutinizing his complaint. An indictment, on the contrary, is the solemn verdict of a grand jury, selected upon the grounds of their intelligence and virtue, sworn and charged diligently to inquire and true presentment make upon evidence, and with comprehensive powers to collect testimony, and a right to have legal advice in making deductions of law. The grand jury is a regularly-constituted tribunal. A majority must hear a complaint. A majority must pronounce an indictment to be a true bill, and their verdict must be rendered in open court. The indictment, as preferred by the prosecuting officer, may be regarded as a charge submitted by him to the grand jury, and it is not until they have inquired, upon oath, into all the facts and circumstances of the case proven to them by competent witnesses, that they can affirm the charge and give it force and effect. Reserving the question whether, if this case had been presented by indictment, it would not be within my power to inquire into the facts and circumstances, and ascertain whether the indictment was not without probable cause, or did not charge an offence not within the purview of the constitution, I trust that I have sufficiently shown that your argument, from the analogy between an indictment and affidavits, has not invalidated the positions upon which my denial of your requisition rests.

You remark that the guilt of an accused person often depends

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