Page:An essay upon the constitutional rights as to slave property.djvu/21

Rh

the Governor of Rhode Island has demanded him as a fugitive from justice. It is not denied that an affidavit charging him with criminality was presented to the Governor of New York; nor is it denied that the Governor of Rhode Island has certified that that affidavit is properly authenticated. These are the material facts. Governor Throop does not assert the prisoner's guilt, but that he had before him such evidence as the law directed to authorize the issuing his warrant. Whether the prisoner is guilty or innocent is not the question before us; nor is any judicial tribunal in this state charged with that inquiry. By the constitution, full faith and credit are to be given in all the states to the judicial proceedings of each state. When such proceedings have been had in one state as ought to put any individual within it upon his trial, and those proceedings are duly authenticated, full faith and credit shall be given to them in every other state. If such person flee to another state, it is not necessary to repeat in such state to which he has fled the initiatory proceedings which have already been had, but he is to be sent back to be tried where the offence is charged to have been committed—to have the proceedings consummated where they were begun."

7. Duty of Executive Officers in relation to fugitive criminals.—All executive officers of the states are bound by oath or affirmation to support the Constitution of the United States. Art. 6, sec. 2.

This constitution and the laws of the United States made in pursuance thereof, are the supreme law of the land, and the judges in every state are bound thereby; any thing in the constitution or laws of any state to the contrary notwithstanding. Art. 6, sec. 2.

The supreme law of the land has been so expounded by the judges of the supreme court of the state of New York as to give to it full effect. A very different exposition has been made by the executive of that state.

We premise that by the laws of Virginia, any person who shall steal a slave is guilty of felony, and upon conviction thereof is to undergo a confinement in the penitentiary for a period not less than three nor more than eight years. 1 R. C. 1819, p. 427-8, sec. 29.

The executive authority of Virginia, in July last, demanded three persons of the executive authority of New York, as fugitives from justice, to wit; Peter Johnson, Edward Smith and Isaac Gansey. There was produced to the executive of New York, an affidavit made before a magistrate of Virginia by one John G. Colley of Norfolk borough. The affidavit was dated the 22d of July 1839, and charged "that on or about the 15th inst. 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 man slave named Isaac, the property of said Colley." And this affidavit was certified as authentic by the executive of Virginia. It thereupon became the duty of the executive of New York, according to the constitution and laws of the United States, and according also to the decisions of the supreme court of the state of New York, to cause the persons so demanded to be arrested and delivered to the proper agent of the executive of Virginia.

This the Governor of New York has declined doing. In a communication of the 16th of September 1839, to the executive of Virginia, he takes the following ground:

"I beg leave to state most respectfully, that, admitting the affidavit to be 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 other crime, and thus bring it within the constitutional provision? I confess that such does not seem to me 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."

The correspondence which we are now considering, furnishes evidence that the Governor of the state of New York is an able man; and we do not consider it any reproach to him, that he is not perfectly familiar with the decisions of the supreme court of his own state upon questions of constitutional law. But it is cause of regret that he did not, before affirming so important a proposition as that contained in the last sentence above quoted, consult with his attorney general. Had he done so, he must have learnt from him that the supreme court of New York had pronounced a different decision, in Clark's case.

The Governor of New York proceeds as follows: "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