Page:An essay upon the constitutional rights as to slave property.djvu/23

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state having jurisdiction of the crime." But according to governor Seward, the fact charged not being recognized as a crime by the universal law of all civilized countries, there would be no surrender. We have no hesitation in declaring, that it seems to us it would be a violation of the federal constitution not to make the surrender in such a case.

"However the point may be," says Mr. Justice Story, "as to foreign nations, it cannot be questioned that it is of vital importance to the public administration of criminal justice, and the security of the respective states, that criminals who have committed crimes therein, should not find an asylum in other states, but should be surrendered up for trial and punishment. It is a power most salutary in its general operation, by discouraging crimes and cutting off the chances of escape from punishment. It will promote harmony and good feeling among the states; and it will increase the general sense of the blessings of the national government. It will moreover give strength to a great moral duty, which neighboring states especially owe to each other, by elevating the policy of the mutual suppression of crimes into a legal obligation. Hitherto it has proved as useful in practice as it is unexceptionable in its character."

Governor Seward thus proceeds: "The offence charged in the affidavit before me, is not understood to be that of kidnapping a person, by which he was deprived of his liberty, or held in duress, or suffered personal wrong, or injustice, but it is understood to mean the taking of a slave, considered as property, from the owner. If I am incorrect in this supposition, the vagueness and uncertainty of the affidavit must excuse my error. But I think there can be no controversy on this point. I need not inform you, sir, that there is no law of this state which recognizes slavery, no statute which admits that one man can be the property of another, or that one man can be stolen from another. On the other hand, our constitution and laws abolish slavery in every form. The act charged in the affidavit, if it had been committed in this state, would not contravene any statute; nor is it necessary to inform you that the common law, which is in force in this state when not abrogated by statute, does not recognize slavery, nor make the act of which the parties are accused in this case felonious or criminal."

The decisions of the supreme court of New York, show that until a very recent period, the laws of that state recognized slavery, and her statutes admitted that one man might be the property of another. Such property was the subject of sale, and the owner's rights were protected by the laws.

It may however be conceded, that the act charged in the affidavit, it it had been committed in New York, would not have contravened any existing statute of that state, making such an act felonious, or criminal. It might further be conceded, the the act of stealing a slave could not be deemed a common law felony. And still the conclusion, that the act charged in the affidavit is not a felony or crime, within the meaning of the federal constitution, is one which cannot be sustained, if the precedent of governor Throop be correct, and the opinion of the supreme court of New York be a sound exposition of the constitutional obligation to surrender.

Nay more, it is not necessary to call in aid that precedent and that opinion to the whole extent that they authorize. The conclusion that the fact charged in the affidavit is not a felony, or crime, within the meaning of the federal constitution, is untenable upon another ground. In a communication of the 4th of October 1839, from the Lieutenant Governor of Virginia to the Governor of New York, this language is used—"Is it true that the offence committed by Peter Johnson, Edward Smith and Isaac Gansey, is not recognized as criminal by the 'universal law of all civilized countries'? They are charged with feloniously stealing from John G. Colley, a citizen of this state, property which could not have been worth less than six or seven hundred dollars. And I understand stealing to be recognized as crime by all laws, human and Divine." In Governor Seward's reply of the 24th of October 1839, he says—"It is freely admitted that the argument would be at an end, if it were as clear that one human being may be the property of another as it is that stealing is a crime." It might not be going too far to say, that stealing property is recognized as crime by all laws, and that any state may make that property which she pleases. But here the question is not between Virginia, whose laws recognize slaves as property, and a foreign state, whose laws recognize no such property. The question is very different. It is between Virginia, under whose laws slaves are property, and New York, who has made a compact with Virginia recognizing this very kind of property. 'New York has said to Virginia, that if she will come into the Union with her, a constitution shall be adopted for the government of the states, by which New York will agree that, no matter what laws or regulations New York may herself adopt to abolish slavery within her borders, persons held as slaves in Virginia, under her laws, who may escape into New York, shall not be discharged from slavery; but the right of property of the owners shall be respected in New York, and the slaves shall be delivered up on claim of the owners. New York has further agreed by the same constitution, that a person charged in Virginia with a crime, who shall flee from justice and be found in New York, shall be delivered up to be removed to Virginia. After a union of the states has been formed, based upon the provisions contained in this constitution, a person charged in Virginia with stealing property, flees from justice and is found in New York; Virginia demands the fugitive, and New