LETTER III. TO THE GOVERNOR OF VIRGINIA. STATE OF NEW YORK, EXECUTIVE DEPARTMENT, } SIR: I have heretofore acknowledged the receipt of your communication of the 6th of April last, on the subject of the requisition for the surrender of Peter Johnson, Edward Smith, and Isaac Gansey, alleged to be citizens of this state, and charged with the offence of stealing a slave within the jurisdiction of Virginia. The communication was accompanied by a report of a committee of the house of delegates of Virginia, and the following resolutions of the general assembly: "Resolved, That the reasons assigned by the governor of New York, for his refusal to surrender Peter Johnson, Edward Smith, and Isaac Gansey, as fugitives from justice, upon the demand of this state, are wholly unsatisfactory, and that that refusal is a palpable and dangerous violation of the constitution and laws of the United States. 66 Resolved, That the course pursued by the executive of New York can not be acquiesced in, and if sanctioned by that state and persisted in, it will become the solemn duty of Virginia to adopt the most decisive and efficient measures for the protection of the property of her citizens, and the maintenance of rights which she can not and will not, under any circumstances, surrender or abandon. "Resolved, That the governor of this state be authorized and requested to renew his correspondence with the executive of New York, requesting that that functionary will review the grounds taken by him, and that he will urge the consideration of the subject upon the legislature of his state. "Resolved, That the governor of Virginia be requested to open a correspondence with the executive of each of the slaveholding states, requesting their co-operation in any necessary and proper measures of redress, which Virginia may be forced to adopt. "Resolved, That the governor of Virginia be requested to forward copies of these proceedings to the executive of each state of this Union, with a request that they be laid before their respective legislatures." In compliance with the request of the general assembly of Virginia, I immediately transmitted to the legislature of this state, your excellency's letter and the very able report of the committee of the house of delegates of Virginia, with the following message.* *See ante, page 385. No action was had on the subject in the senate. It was referred to a committee in the house of assembly. That committee on the 14th of May made the following report: "Mr. Simmons, from the committee on the judiciary, to which was referred the message of the governor, transmitting the correspondence between him and the governor of the state of Virginia, on the subject of the delivery of certain citizens alleged to be fugitives from justice, reports, that by the constitution and laws, the power of causing the arrest of persons demanded as fugitives from justice, is vested in the executive, and his discretion in delivering up such persons, can not be controlled by any legislative action. Still, on a subject of such moment, in which the feelings, if not the interests, of a sister-state are involved, the governor of this state evinced a proper regard for those feelings, and a just deference to public sentiment, in submitting to the Legislature the whole correspondence that had taken place between him and the executive of Virginia. On a careful examination of that correspondence, your committee can not discover any occasion for the interposition of this house, even by way of advice. They believe the positions taken by the governor of this state to be sound and judicious, and that his exposition of the meaning of the constitutional provision in question is the only one that can be given consistently with the sovereignty of the state and the rights of the citizens, while it is in strict conformity with our federal obligations to other states, and recognises all the rights which are intended to be secured. 66 The committee content themselves with the expression of their general concurrence in the views presented by the governor, because the subject is one which can not be expressed with brevity, and because it has been examined and illustrated with distinguished ability. Conceiving that there is no occasion to submit any proposition to the house for its action, your committee ask to be discharged from the further consideration of the subject." The committee was thereupon discharged. I regret that I am left without legislative advice to perform the duty of reviewing the grounds of my decision, in compliance with the wish expressed by the general assembly of Virginia. You have, however, rightly anticipated that that duty will be performed in a spirit of candor, and with an earnest desire to maintain the harmony which has heretofore existed between the people of Virginia and the citizens of this state. I am impressed with a deep conviction of the magnitude of the question, and while I acknowledge its importance in the view in which it is presented on your part, as a subject affecting the domestic institutions of Virginia, it assumes in my own mind a much graver character. It seems to me to involve not only essential principles of civil liberty and the federal relations of the states, but also their sovereign and reserved rights. The inquiry relates to the extent to which each state has surrendered the right, and relinquished the duty of protecting her own citizens; whether, in truth, the members of the confederacy have bound themselves to give effect to statutes of other states, by which actions, in themselves innocent or meritorious, may be converted into offences branded with infamy, and whether the states have come under an obligation to surrender their citizens to be tried in foreign courts for such offences, and to be punished according to laws that may be abhorrent to their own principles of jurisprudence. It is the old question that has agitated the country since the adoption of the constitution, concerning what has been surrendered by the states and what has been retained. I must be permitted to express, with all due deference, my belief that if this question had arisen in any case not supposed to involve a peculiar interest of Virginia, that state would have been very unwilling to maintain a construction of the constitution, which, if it is not altogether misunderstood on my part, is incompatible with the true dignity and sovereignty of the states. Nor am I insensible of the delicacy and difficulty of this particular case, but, perceiving, as I believe, higher and greater interests behind it; interests of the deepest importance to the confederacy, and to each member individually; I have steadily kept the principle in view in its abstract form and most general application. A brief review of the correspondence and proceedings already had, will conduce to a better understanding of the points in issue. The lieutenant-governor of Virginia saw fit to demand the surrender of three persons, charged by affidavit with the offence of stealing a negro-slave in the state of Virginia. The affidavit containing the charge was vague and informal. It was admitted that the slave had been retaken and restored to his master. Notice was given to the agent charged with the requisition, and to the accused, of a time and place when I would consider the application. In the meantime, the recorder of New York, a judicial officer of the state, without any correspondence or communication with me, discharged the accused upon a writ of habeas corpus, on the grounds that the testimony upon which the warrant had been issued was an affidavit to the legal conclusion that the accused were fugitives from justice; that it satisfactorily appeared, upon examination, that neither of the prisoners had committed an offence even against the laws of Virginia, and that the testimony was not such as to authorize their detention. Notwithstanding the discharge of the accused, and the reasonable presumption that the lieutenant-governor was apprised of it, that functionary, without offering to amend the affidavit, or to supply the deficiency of proof pointed out by the recorder, de manded my decision upon the requisition. I again referred the lieutenant-governor to the defects in the affidavit upon which the requisition was issued, but inasmuch as no disposition had been manifested on his part to obviate that objection, or to relinquish the demand on the ground of informality or insufficiency in the evidence of the charge against the accused, I deemed it due to myself and to the grave importance of the question which the lieutenant-governor thus urged upon me, to meet it directly, and decide it upon the broad grounds of constitutional law. It seemed to me a matter of regret, that the lieutenant-governor had seen fit to select a case in which the offence was not charged with the usual formality, and with legal certainty and perspicuity, and in which my consideration of the subject was anticipated by the decision of a competent legal tribunal. It, however, properly belonged to the executive of Virginia to determine in what manner and on what occasion he would bring the subject before me, and these observations upon points heretofore waived, are made now only for the purpose of assigning the facts their proper place in the record, on an occasion in which the whole subject is opened for reconsideration. I have assumed the ground that the constitutional provision under which the process issued, applied only to those acts, which, if committed within the jurisdiction of the state in which the accused is found, would be treasonable, felonious, or criminal, by the laws of that state, or to those acts which, although they might not be criminal within that state, were nevertheless made so by the laws of all civilized countries. I maintained that the object of the constitutional provision, was to establish, in the intercourse between the states, the principle of the law of nations, which recognised the mutual right and obligation of sovereign and independent governments to demand and surrender fugitives from justice. I had adopted the opinion of those jurists who maintain the existence of such a right, and such an obligation arising out of the comity of nations, if not from the natural principles of justice, although I was aware that it was denied by some eminent authorities, and was not practically recognised by our own government. I was also aware that the class of offences to which the principle applied, and the class to which it did not apply, had not been accurately defined, even by those who maintained its existence as a part of the law of nations, and I did not forget. that, perhaps from this cause, as well as from the facility with which positive stipulations are now substituted in the intercourse of nations for undefined rights, it had ceased to be practically enforced by the governments of the world. Yet the necessity of such a principle, its abstract justice, and its adaptation to states situated as these were, were so obvious, that I supposed these considerations to have governed the framers of the constitution of the United States, in the adoption of the provision which is found in that instrument. In seeking the legitimate exposition of that provision, it seemed proper to recur to the principle as it had previously existed, and it appeared to me that a just interpretation of the formal compact would limit its operation at least to those cases which had previously been recognised by the civilized part of mankind as those only where a demand should be made. I endeavored to show that the framers of the constitution could never have intended that all offences, of every degree and description, slight trespasses, violations of police laws, and of sumptuary provisions, should be included in the term "crimes,” and that an interpretation must be adopted which would reconcile the claim in question with the protection due from the states to their own citizens, and with the opinions of the American people, without which the provision would be inoperative. In endeavoring to arrive at the intent of the provision, it was important to recollect that the several states had very different criminal codes at the time of the adoption of the constitution; that certain acts, which were not the subject of criminal prosecution in any form in some states, were in other states marked by severe punishment; that local circumstances and peculiar manners might require in one state the creation of new offences, which would be repugnant to the policy or prevailing sentiments of another; and yet that, inasmuch as the people of the several states had chiefly the same origin, and had established similar forms of government, there were certain known and defined crimes which were recognised by all. I supposed it was the design of the states, in adopting the provision in question, to secure the punishment of such crimes. To give the greatest possible latitude to that provision, and comprise all those cases which did not come into direct conflict with the civil and criminal policy of this state, and which, therefore, could be recognised |
