by the act of inducing the slave, by presenting to her the pros pect of living as a free person, to secrete herself on board a vessel bound to New York, in which the accused was a passenger, and that the apparel charged as stolen consisted of the articles of dress and ornament worn on the person of the fugi tive. In support of the charge of larceny, the Governor of Georgia afterwards communicated the indictment of a grand jury against Greenman for harboring and concealing the slave, and for enticing her "to run away from her owner with the intention to appropriate the said slave to his own use, and to deprive the owner of the services of the said slave." Governor Seward's refusal to comply with the demand was, in his correspondence, based mainly on the position that the facts alleged were insufficient to support a legal charge of larceny, even according to the law of Georgia, and that the charge of kidnapping, as made by the indictment, was inconsistent with the other facts charged, or that there were "good grounds" in the case to induce the belief that the charge was "false and malicious." Governor Seward, besides this, expressly reserved the objection that the clandestine removal of the slave could not be recognized by him as theft, because property in human beings was not known to the local law of New York.'

§ 698. In 1847, requisition was made by the Governor of Maryland on Governor Shunk, of Pennsylvania, for John Mark, and others, as fugitives from justice, an indictment having been found against them under the law of Maryland, which enacts that the running away of a slave into any other State shall be felony. The Governor refused to comply with the demand, on the ground that the Constitution and laws of the United States

'See Georgia Controversy, in 2 Seward's Works, 519. On p. 522:-"It may perhaps be unknown to your Excellency that while the kidnapping of a person by fraud or violence, or his abduction against his will, or any unlawful seizure of him or abridgment of his liberty, is regarded in this State as a high crime, it is held that the relation of master and slave, in other States, does not constitute a property in the person of the slave so as to render the slave a subject of theft from the master." P. 539:-"I beg leave to observe that I am not to be understood as conceding that a human being can, in law, be regarded as 'goods' and the subject of larceny. I respectfully reserve that question." The resolutions of the Virgi nia Legislature (ante, p. 10, n.) maintain that the provision goes beyond the requirements of international law, and affirm that "there is no civilized nation which has not within the 19th century recognized slaves as property."

2 Ante, p. 22.

having embraced the case within the provision for the surrender of fugitives from servitude, no State legislation could evade those provisions or alter the character of the transaction, so as to include the case under the provision for the surrender of fugitives from justice.'

§ 699. In February, 1860, demand was made by Governor Letcher, of Virginia, on the Governor of Ohio, for Owen Brown and Francis Merriam,' under indictment in Virginia, "for advising slaves to rebel and make insurrection; for conspiring with slaves to rebel and make insurrection; and for conspiring with certain persons to induce slaves to rebel and make insurrection."

The refusal of the Governor of Ohio to make the required extradition was based upon the ground taken in the opinion of Mr. Wolcott, the Atty.-Gen'l of Ohio, that no evidence had been furnished of the flight from Virginia of the persons demanded. It seems to have been doubted, too, whether the Governor had power to make extradition in the absence of any authority specially conferred by the State. No question as to the legality of slavery was raised by the Governor or the Attorney-General in this case.

In the case of Lago, already mentioned, the Governor based his refusal upon the opinion of the Attorney-General, that the act charged was not within the terms of the provision.'

1 Rollin C. Hurd's Personal Liberty, &c., p. 601, and references.

2 The persons demanded were supposed to have participated in the invasion or conspiracy of John Brown. A similar demand for others concerned was, I believe, made on the Governor of Iowa, and refused.

Ante, p. 122, note. In his message to the Legislature, with the documents in this case and that of Lago, Gov. Dennison gives a letter of Hon. John W. Wright, Jan. 31, 1861, to the Governor of Indiana, describing the case of one Brown, a white man, who, in 1855, was "taken in that State from his own house without a requisition, on a charge of inviting slaves to leave Kentucky, and the proof of his guilt was a letter he wrote in Indiana to a man in Kentucky, and it was not pretended that any act had been done by him in Kentucky." Mr. Wright says that the Governor of Ohio" said and swore to it" that a requisition for the kidnappers of Brown would not be complied with. He also says, "When Governor Willard came into office I had a conversation with him on this case. He knew all the facts when they occurred, and he swore to me he would never deliver up an abolitionist from this side till they gave up kidnappers from Kentucky, and Willard often joked and told the compromise he had made."

In his written opinion, April 14, 1860, Mr. Wolcott says:-"The question is thus presented, whether, under the federal Constitution, one Štate is under an obligation to surrender its citizens or residents to any other State on the charge that they

§700. The solution of these questions may be involved in that of the more general question-What may be treason, felony, or erime, in view of this provision?

It may be assumed, as admitted in the various opinions, that the legal nature of the act charged is to be determined either by the law of the State which makes the demand, or by that of the State in which the alleged fugitive is found, or in some criterion of national extent, common to all the States.

There are a few judicial opinions in which an answer to this general inquiry has been attempted.

In Commonwealth v. Green (1822), 17 Mass. 547, Parker, Ch. J., said: "The Constitution has merely made that obligatory between the States which, between nations entirely foreign to each other, was done from comity, viz., the delivering up of criminals who have fled from justice." But it does not appear whether the judge would extend the operation of this clause only to cases like those in which extradition has been made as by international comity.

In the opinion of Savage, Ch. J., in Clark's case (1832), 9 Wend. 221, it is held that the standard of crimes for the commission of which international extradition may be made is not the measure of this provision; that it gives a "more perfect remedy; one which should reach every offence criminally cognizable by the laws of any of the States.'

99 1

In Fetter's case (1852), 3 Zab. 315, it is said by Green, Ch. J., that the provision "makes obligatory upon every member of the confederacy the performance of an act which previously was of doubtful obligation." But it does not appear whether the judge would limit the provision to cases in which extradition is

* * *

have committed an offence not known to the laws of the former, nor affecting the public safety, nor regarded as malum in se by the general judgment and conscience of civilized nations. This question must, in my opinion, be resolved against the existence of any such obligation. The right rule, in my opinion, is that which holds the power to be limited to such acts as constitute either treason or felony by the common law, as that stood when the Constitution was adopted, or which are regarded as crimes by the usages and laws of all civilized nations. This rule is conformable to the ancient and settled usage of the State." Mr. Wolcott adds that not even in every case which may apparently fall within the rules here asserted is the power of extradition to be exercised.

The judge even says, ib. 219:-"It is not necessary, as under the comity of nations, to examine into the facts alleged against him constituting the crime; it is sufficient that he is charged with having committed a crime."

made by international law. It was held sufficient in this case that the act charged be larceny by the law of the demanding State, though not so at common law. Ib. 320.

In Johnston v. Riley (1853), 13 Geo. 97, 133, Warner, J., says the Executive is not authorized to "inquire whether, by the laws of his own State, the facts alleged would constitute a crime in that State; for we take it to be a well-settled principle that, by the law of nations, sovereignty united with the domain establishes the exclusive jurisdiction of a state or nation, within its own territory, as to crimes and to rights arising therein. This principle applies with peculiar force to the confederated States of the American Union, embracing as they do such a distinct variety of soil, climate, pursuits, and institutions. Such penal enactments as might be wholly useless in some of the States are indispensably necessary in others for the protection of property and the welfare of society."

1

Nothing, or very little, is to be found on these questions in the writings of the leading commentators. Story's Comm. § 1807-1809, contain only an assertion of the salutary character of such a provision as a substitute for the ordinary extradition under international law. Kent, in 1 Comm. 39, has merely made a note of the controversy between Virginia and New York, giving his opinion as already noted. Mr. Rollin C. Hurd, in his Personal Liberty, &c., p. 597, after a review of the cases, concludes that the provision embraces, “as a general rule, all such acts as are made criminal by the laws of the State where they are perpetrated."

§ 701. In whatever manner either of these clauses respecting fugitives may be construed, that is, whether it is taken to have the operation of national municipal private law, or that of an international agreement, it must, according to the view hereinbefore taken of the general character of this Article, be interpreted by rules applicable to international treaties or compacts as well as by such as apply to legislative acts. Regarded as the

1 The plaintiff had been arrested on charge of forgery in Pennsylvania. The opinion contains allusions obviously reflecting on the views taken in some of the non-slaveholding States of obligations arising under this provision.

Ante, § 604. In the extract given, ante, p. 382, Judge Taney argued justly enough that, as extradition on charges for treason has not been granted under in

legislative act of the integral people of the United States, it must be interpreted and construed with reference to laws which had before obtained within the same territorial jurisdiction under the political predecessors of that people. Regarded as an international compact, the standard of the interpretation of the words employed must be one common to the States as the constituent parties, and this standard must, as has been shown,' be found in the pre-existing law having international effect between the colonies and States; whether it was in authority identified with the national municipal law, by resting on the national power, or was international law only, such as customarily operates between independent states, binding them as a law in the imperfect sense.

§702. In whatever degree the provisions of this Article which have been already considered may extend or limit the local laws of the several States they, thereby, modify legal liberty, taking the words in the sense of all that may be done with the sanction of law. But it is evident that, so far as the local laws of the several States are to receive international recognition and extension by these provisions, they are laws which affect liberty in its more limited acceptation-freedom from corporal restraint. Having, then, regard to their character of private law, law determining rights of private persons, it is a principle of interpretation and construction to be borne in mind in considering them, or any legislation founded on their existence, that, being laws in restraint of personal liberty, they must be interpreted and construed strictly. This is a maxim of both the common law of England and of Roman jurisprudence, and which has always been recognized in the criminal jurisprudence of all the States as a universal principle-one applying to all natural persons. It may be taken to apply in the interpretation of the first of these provisions, even if the presumption against the freedom of negroes which exists in

ternational law, the introduction of that word shows that the provision extends beyond the cases generally included "in compacts for delivering up fugitives from justice." He says:-" It is not to be construed by the rules and usages of independent nations in those compacts." But the question is, how are the words treason and felony, and crime, also, so far as not modified by the former words, to be interpreted? This must be by some international or quasi-international rule. Ante, Vol. I. p. 382.

1

Ante, §§ 605, 606.

2