Page:An essay upon the constitutional rights as to slave property.djvu/19

Rh

If there be occasion for the exercise of judicial power in any case arising under the provision of the constitution in regard to fugitives from labor, such judicial power should be exercised, not by a state court, but, under art. 3, sec. 2, should be exercised by a court of the United States: and Congress should, under art. 1, sec. 17, make all laws necessary and proper for carrying into execution the power vested in the judicial department.

6. Decisions as to Fugitive Criminals.—Under the Constitution of the United States, a state within the Union has no more right to afford an asylum to a person charged with a crime in another state, than to those who have fled from service or labor. "The states," says Mr. Rawle, "are considered as a common family, whose harmony would be endangered if they were to protect and detain such fugitives, when demanded in one case by the executive authority of the state, or pursued in the other by the persons claiming an interest in their service."

The question, whether theft is a felony of such a nature as to make it proper that the offender should be delivered up, has been discussed in the American courts, when the delivery was to be to a foreign state—and on that subject different opinions have been expressed; but the judges have all agreed as to the propriety of delivering up felons charged with stealing property in a state within the confederacy.

In the case of the People v. Schenck, 2 Johns. Rep. 479, the prisoner was indicted in the city of New York for felony in stealing a gun; and there was a special verdict, which found that the prisoner did feloniously steal and carry away the gun in the state of New Jersey. The supreme court of New York held, that the prisoner was entitled to be discharged upon the indictment in that state, but ordered that he should be detained in prison for three weeks; and, in the meantime, directed notice to be given to the executive of the state of New Jersey, that the prisoner was detained on a charge of felony committed there, stating that if no application should be made for the delivery of the prisoner within that time, he must be discharged.

In Simmons's case, 5 Binn. 617, the prisoner was indicted in the city of Philadelphia, for feloniously stealing and carrying away some silver spoons and other articles; and the special verdict found that the fact was committed within the state of Delaware. The supreme court of Pennsylvania approved of what was done in New York in the case of Schenck, and the proceeding was similar.

In carrying into effect the provision in the federal constitution, "We have," says Chief Justice Savage, "nothing to do with the comity of nations, 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 being 'treason, felony or other crime.'"

It was contended before the supreme court of New York, in Clark's case, that a crime of greater atrocity was intended by the constitution than was charged in that case—and indeed the ground was taken that no crime at all had been committed; for it was insisted that the statute of Rhode Island, which was alleged to have been violated, contemplated proceedings merely of a civil nature. Chief Justice Savage, who delivered the opinion of the court, answered the objection as follows: "The first answer is, that the statute of Rhode Island is not properly before us. 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; but if we look into the statute of Rhode Island, which has been informally read from their statute book, we find a criminal offence. It is this: 'That if any officer of a bank shall so fraudulently manage its concerns, that the public, or any individual dealing with it, shall be defrauded in the payment of their just demands, such officer shall be prosecuted in the supreme judicial court by indictment; and, on conviction, the offender may be fined $5000.' This is very plain language. There is to be a prosecution by indictment, and a fine is imposed which goes of course to the public—not to the party defrauded. There is nothing here like a civil remedy."

"Had our constitution and laws," says Chief Justice Savage, "been silent on this subject, and no conventional arrangement existed between the several states composing our confederacy, it may be conceded that the practice arising from the comity of nations would be applicable; and before we would surrender in one state any person demanded by another as a fugitive from justice, it would be our duty to examine into the evidence of the alleged crime, and be satisfied that no reasonable doubt existed as to his guilt. But under our federal government, this matter has been regulated, and we are not left to the uncertainty arising from an inquiry in one state into the particulars of an offence committed in another. The Constitution of the United States provides, that 'a person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.' Here then is the law on the subject—a positive regulation, and tantamount to a treaty stipulation; and we are not to resort to the comity