the demand, refused to surrender the fugitive, who had been arrested and was in custody, till Governor Seward should reverse his decision, and offered to keep the fugitive in custody for six months in order to afford him opportunity to consider the subject. It seems that the Virginia House of Delegates expressed their disapprobation of the course of the governor of that State, and that his decision was reversed and the fugitive given up; and that the Governor then resigned.1

§ 525. Views of Governor Seward; Pennsylvania Case. On October 10, 1840, Governor Seward refused to surrender, on the demand of the governor of Pennsylvania, one Stevens, charged with being a fugitive from the justice of that State. It appears that the alleged fugitive was a passenger on a steamboat on Lake Erie from Detroit to Buffalo, and that when the boat touched at Erie, in Pennsylvania, a deputysheriff went on board to arrest him on a capias ad respondendum in a civil action. The deputy found Stevens in a place of concealment, and was attacked by him. A struggle ensued, but the deputy succeeded in bringing him from his hiding-place. Stevens then requested to be taken to the captain's office, and while there assaulted the deputy and prostrated him. Meanwhile the boat got under weigh, and the deputy was carried to Dunkirk, Chautauqua County, in the State of New York. The governor of Pennsylvania demanded Stevens' surrender on the charge of assaulting and resisting an officer in the execution of civil process. In reply, Governor Seward said that the affidavit did not show whether the alleged fugitive was a citizen of New York or of Pennsylvania, of Michigan, or of some other State; nor whether the action in which the capias was issued was upon a contract or a tort; nor where the cause of action accrued ; whether the action was one in which the detention was justified by the laws of Pennsylvania, or whether it was a nonbailable action; nor whether the writ contained any clause authorizing the defendant to be held to bail, or whether there was an order of a competent tribunal for that purpose. By the laws of New York seizure and detention on a capias ad

12 Seward's Works (ed. 1853), 390.

respondendum in a civil action on a contract would be assault and battery and false imprisonment, and resistance of the defendant sufficient to overcome force by force would be justified. In Pennsylvania, it seemed, some writs of capias ad respondendum were bailable and some not, and the affidavit. ought to show that the writ in the case under consideration was of the former description. The request could not, therefore, be complied with because the annexed papers were defective. Governor Seward concluded as follows:

"I am bound, however, in candor to say to your excellency further, that if the papers should be amended, yet inasmuch as imprisonment for debt, whether of citizens of this State or of the strangers within our borders, is forbidden by our laws; and inasmuch as the offence of resisting an officer making an arrest by virtue of civil process is only made a contempt of court and simple misdemeanor, and is not punishable as a felony, the question would then arise whether the case falls within the description of offences in which the obligation to surrender fugitives from justice is prescribed by the Constitution of the United States."

§ 526. Political Offences. One of the few cases in which a demand has been made for the surrender of a person for political offences under the constitutional provision, came before Governor Seward.1 In 1842, the governor of Rhode Island requested Governor Seward to intervene to have Thomas Wilson Dorr, a fugitive from the justice of that State, charged with treason, and believed to be in the State of New York, arrested for surrender. On June 16, 1842, Governor Seward replied as follows:

"I have now the honor to inform your excellency that Amos Adams, Esq., sheriff of the county of Albany, has this day been charged with a warrant, in compliance with your requisition, and he will proceed immediately to execute the same. I have again to

1 It is stated in Appleton's Cyclopedia that Frederick Douglass being suspected of being implicated in John Brown's raid in 1859, Governor Wise of Virginia made a requisition for his surrender on the governor of the State of Michigan, where Douglass was then staying, in consequence of which the latter left the United States and went to England.

suggest for your consideration the expediency of immediately designating the agent to receive the fugitive, because I believe that such a proceeding would be more harmonious with the spirit of the Constitution than the detention of a person accused of such a crime, and under such circumstances, in a jail of this State. Nevertheless, the form of proceeding adopted by your excellency being in strict conformity with the law of the United States, I have not hesitated to perform the duty devolving upon me."

§ 527. Governor Seward's views not maintained in New York. It is believed that the views of Governor Seward as to the meaning of the words "other crime" in the constitutional provision did not prevail in the State of New York before his time, and they have not since been accepted as sound. In the matter of Clark,2 Savage, C. J., said: "The language is, treason, felony, or other crime; the word 'crime is synonymous with misdemeanor (4 Black. Comm. 5), and includes every offence below felony punished by indictment as an offence against the public." In The People, ex rel. Lawrence, v. Brady,3 Judge Andrews said:

"The word crime, in the clause of the constitution which has been quoted, embraces every act forbidden and made punishable by the laws of a State, and the right of a State to demand the surrender of fugitives from justice extends to all cases of the violation of its criminal law. (Com. of Kentucky v. Denison.) Felonies and misdemeanors, offences by statute and at common law, are alike within the constitutional provision; and the obligation to surrender the fugitive for an act which is made criminal by the law of the demanding State, but which is not criminal in the State upon which the demand is made, is the same as if the alleged act was a crime by the law of both."

In The People, ex rel., v. Donohue, it was contended that "theft" was not a crime either at common law or under the statutes of Connecticut, the State from which the fugitive escaped. The criticism was chiefly on the word. The court overruled the objection, saying: "It is quite evident, both at

1 2 Seward's Works (ed. 1853), p. 612.

29 Wend. 212.

4 84 Id. 438.

856 N. Y. 182.

common law and under the statutes of Connecticut, theft is recognized as a crime, and is synonymous with larceny, and the recital in the executive warrant that Jourdan was charged with theft is quite as effectual as if it had described him as charged with larceny." In the case of Sullivan, Governor Hill, of New York, surrendered the fugitive to the authorities of Mississippi on the charge of prize-fighting, notwithstanding that he had previously been arrested in Tennessee and discharged by a judge at Nashville on habeas corpus, on the ground that prize-fighting, being only a misdemeanor, did not come within the constitutional provision.1

§ 528. Views of State Courts. It has been held in Indiana that misdemeanors are embraced in the words "other crimes." 2 It was held in Massachusetts, in the case of a person charged with selling intoxicating liquors contrary to law in Vermont, that the constitutional provision "extends to a person appearing to be charged with any crime whatever in that State." 3 In the Matter of Voorhees, before the supreme court of New Jersey, in 1867, the fugitive was charged with obtaining money by false pretences in New Hampshire. It was contended that the words "other crime" only embraced crimes which were such at common law at the time of the adoption of the Constitution. Beasley, C. J., held that the words were "nomen generalissimum," and embraced every species of indictable offence, present and future, in the demanding State. In the same year precisely the same views were expressed by the supreme court of North Carolina in the case of Hughes, who was charged with cheating by false pretences against the laws of the State of New York. It was held by Governor Fairfield, of Maine, that "other crime" included misdemeanors, and offences against property as well as the

1 N. Y. Sun, July 12, 1889.

2 Morton v. Skinner, 48 Ind. 123; citing Com. v. Denison, 24 How. 66; In re Clark, 9 Wend. 212; State v. Buzine, 4 Harr. 572; Walker, Am. Law, 511, § 187; 4 Chitty's Bl. Com. 5; Bouv. L. Dic., title "Crime"; Hurd on Habeas Corpus, 595; 2 Kent's Com. 32, n. 1; Bish. Cr. L. §§ 746, 749.

Brown's case, 112 Mass. 409.

4 32 N. J. L. 141.

5 In re Hughes, Phillips L. (N. C.) 57, 64.

person.1 The same rule appears to have prevailed in Pennsylvania from an early period. It was said by the supreme court of Vermont in 1868, in the case of Greenough, who was charged with obtaining money by false pretences in Illinois, that it had frequently been held "that the crime charged need not be a felony in the State where it is alleged to have been committed, or an offence at common law." The supreme court of Wisconsin in In re Hooper, said that the weight of judicial construction was that the words "treason, felony, or other crime," embraced "any act forbidden and made punishable by the laws of the State making the demand." This opinion was affirmed in State v. Stewart,5 in 1884. The decision amply sustains the declaration of Judge Choate, in Leary's Case, in the United States district court for the Southern District of New York, in 1879, that "it is now settled by a great preponderance of authority, State as well as Federal, that the word 'crime' in this clause of the Constitution embraces every species of offence made punishable as a crime by the laws of the State making the demand, even though it were not a crime by the common law or the laws of other States; and even though for the first time made a crime. by a law passed subsequently to the adoption of the Constitution and the passage of this act of Congress."

1 24 Am. Jur. 230.

2 Pa. L. J. 424; 1847. "In Pennsylvania, the ordinary practice with the executive is to issue his warrant of surrender, whenever a requisition is supported by an indictment, duly accompanied by executive averment that the particular offence is a crime in the State where it was committed, and by an affidavit that the defendant has fled from such State into the one where the warrant is demanded. This is in conformity with the almost unbroken practice of the Commonwealth, from the formation of the Federal Constitution to the present time, and in obedience not only to the repeated opinions of the legal advisers of the executive, but to the judgment of the Attorney-General of the United States, to whom, at an early period, the question was submitted."

8 In re Greenough, 31 Vt. 279.

4 52 Wis. 699. The court cited Kentucky v. Denison; Taylor v. Taintor Cooley on Con. Lim. p. 16, n. 1; Brown's Case, 112 Mass. 409; Clark's Case, 9 Wend. 212; People v. Brady, 56 N. Y. 182; People v. Pinkerton, 17 Hun, 199 ; Hurd on Habeas Corpus, 597.

5 60 Wis. 587.

6 10 Ben. 197.