authorities I have cited show, the magistrate is in all cases competent to decide whether there is probable cause for commitment. Your excellency next refers to the case of Clark in the supreme court of this state (9 Wendell, 220); the case, which, according to your excellency, I am not at liberty to question, and which you affirm, conclusively refutes every principle for which I have contended. I assure your excellency, that I shall not unnecessarily incur the charge of temerity, by questioning the authority of the supreme court of New York; but if your excellency will have the goodness to revert again to the report, you will find that there the question was, whether the supreme court would try the truth of the charge contained in the affidavit which accompanied the requisition addressed to the governor of this state, which charge the governor had decided was sufficient. There was no question concerning the validity of the charge; all that was decided was, that the court would not try the fact whether the accused was guilty.

In regard to the merits of the present question, your excellency will allow me to remark, that it is of the very nature and essence of a charge and even of an affidavit, that it contain only facts, not opinions nor allegations of suspicion. An affidavit is defined in law, to be an averment of some fact, in writing, and sworn to, before some person who has authority to administer such oath. (1 Lilly, 44, 46.) An affidavit ought to set forth the matter of fact only which the party intends to prove by the instrument, and not to declare the merits of the case, of which the court is to judge. (21 C. 1 B. R.) Again, the matter sworn to must be positively set forth, with all material circumstances attending it, that the court may judge whether the deponent's conclusion be just or not. (1 New Abr. 66.) I have before shown, that a justice, in deciding on granting a warrant, should regard, not mere allegations of suspicion, but the grounds of suspicion (Barbour, 455); that the facts and circumstances must be laid before him, and these should be sufficient to make it appear that a crime has actually been committed, and that there is probable cause for charging the person complained of with the commission of that crime. (1 Chitty, 33.)

Larceny is the unlawful taking of one man's goods, by another, with intent to convert them to his own use. It is essential to the offence, not only that the goods should be taken and carried away,

but also that they should be so taken with knowledge that they are the property of another, and with intent to dispose of them, or convert them to the use of the taker. It is the combination of unlawful taking and asportation, with such knowledge and such intent, that renders the act a violation of law, and constitutes it a felony.

Mr. Flournoy swears that the defendant feloniously took and carried away the person and property mentioned by him, in violation of the laws of Georgia. As the unlawful intent of the taker must be inferred from the facts and circumstances, what (if your excellency pleases) is Mr. Flournoy's statement but "an allegation of suspicion" that the taking was with knowledge that the supposed goods belonged to another, and with an intent to convert them, and that such taking was therefore unlawful and felonious, without a disclosure of the grounds of such suspicion? Or in other words, what is the affidavit but the declaration of an opinion, or conclusion, without the facts and circumstances from which such opinion or conclusion was inferred? What else is it but declaring, not the facts and circumstances, but the "merits of the case," upon which merits, not the deponent, but the magistrate, is to judge? If this be so, then the words "feloniously," and "in violation of the law of Georgia," whatever might be their importance in another stage of a criminal procedure, are inoperative in the affidavits. Those words neither add to, nor take from, the legal substance of the affidavits, and they might be struck out without impairing or varying in any manner the legal effect of the affidavits as charges of larceny.

I am again under the necessity of acknowledging my obligation to your excellency for the suggestion, as you are pleased to express yourself, "that the affidavits must be further mutilated by striking out the word 'stole,'" before those instruments wil cease to convey charges of larceny. I freely acknowledge that the word "stole," upon which you insist, belongs in the same category with the technical terms which I contend are inoperative. Inasmuch as that word is only a technical description of the transaction, and as the propriety of its application depends upon all the facts and circumstances of the case, and only on those facts and circumstances, I certainly have no hesitation in saying that the word "stole" may be discarded without altering

in any degree the legal import of the affidavits, while testing their legal sufficiency as charges of crime.

Your excellency is pleased to say that the position which I seem to maintain, that a man, who, by affidavit, charges another with having feloniously stolen, taken, and carried away property in violation of law, when it was well known to the accuser that such taking and carrying away were lawful and not felonious, can not be convicted of perjury, is not founded in law, and that in such a case it would be difficult to establish the innocence of the complainant by an allegation that his unjust charge was the result of an erroneous legal inference. Your excellency will, I trust, allow me to exonerate myself from having presented such a paradox. My position was, that, if the deponent erroneously supposed that the taking and carrying away were unlawful and felonious, he could not be convicted of perjury, although it should afterward appear that the taking and carrying away were lawful. I am happy to see that the position thus stated has not been controverted. Your excellency will remember that I inferred from it the necessity of insisting upon such a detail of the facts and circumstances constituting the supposed offence, as would show that the accusation was groundless, or if they supported the charge and were false, would expose the complainant to a conviction.

In conclusion, I must beg leave respectfully to observe that your excellency has presented to me a requisition, demanding that John Greenman be surrendered to you upon vague and defective affidavits, pretending to charge him with two distinct larcenies, committed at the same time, and as the papers submitted would lead me to suppose, on the same occasion: that the facts and circumstances relating to the transaction are not shown, but there is some reason to believe if they were shown, they would disclose that the two transactions, if unlawful, constituted one crime, and not two distinct larcenies, as your excellency has supposed that the alleged larceny of the slave consisted, not in taking or carrying her away with an intent to dispose of her for the benefit of the accused, but in persuading, and, perhaps, assisting her to regain her liberty: and that the alleged larceny of clothes and baubles consisted, not in taking or carrying them away, with intent to convert them, but in the fact that the slave, thus persuaded and aided to seek her escape from servitude, car

ried them away upon her own person. It is my purpose on the present occasion not to decide, whether either or both of these supposed offences fall within the definition of larceny, but only to decide, after the most respectful consideration of your excellency's argument, that each of the affidavits is too vague and uncertain to convey a charge of that crime.

Tendering to your excellency renewed assurances of very high respect, I remain your excellency's most obedient servant.

HIS EXCELLENCY CHARLES J. M'DONALD,

Governor of Georgia.

LETTER IV.

TO THE GOVERNOR OF GEORGIA.

STATE OF NEW YORK, EXBOUTIVE, DEPARTMENT,

Albany, October 26, 1841.

SIR: I am honored by a communication from your excellency, bearing date on the 8th of this month, in which you state that Alanson Greenman stands charged by the grand jury of Chatham county with the offence of simple larceny. Your excellency has transmitted a copy of the indictment, and demanded that I should cause the supposed fugitive to be arrested and detained in custody, to await your requisition.

The indictment contains three counts. The third count is in these words:

"And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse said Alanson Greenman, of said county and state, with the offence of harboring a slave. For that the said Alanson Greenman, in the county and state aforesaid, on the day and year aforesaid, a negro womanslave, named Kezia, owned as aforesaid, did conceal, harbor, and hide, and caused to be concealed, harbored, and hid, to the injury of said Robert W. Flournoy, owner of said slave Kezia, and contrary to the laws of said state, the good order, peace, and dignity thereof."

Harboring, hiding, and concealing a slave, however immoral or unlawful, do not necessarily constitute a larceny of the slave.

This count of the indictment, therefore, does not sustain your excellency's demand.

The second count is in these words: "And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse the said Alanson Greenman, of the county and state aforesaid, with the offence of enticing a slave to run away from her owner, with the intention to appropriate said slave to his own use, and to deprive the owner of the services of said slave. For that the said Alanson Greenman, in the county and state aforesaid, on the thirteenth day of April, in the year one thousand eight hundred and forty-one, one negro woman-slave, named Kezia, of the goods and chattels of the said Robert Willis Flournoy, then and there being found of the value of one hundred dollars, did, by enticement, and by giving a pass, and by other means, induce said slave Kezia, owned as aforesaid, to run away from her owner, said Robert W. Flournoy, with the intention to sell said slave, and otherwise to appropriate said slave Kezia to his own use, to wit, to the use of said Alanson Greenman, and thereby to deprive the owner of said slave Kezia, to wit, Robert W. Flournoy, of the use and services of said slave Kezia, to the great damage of said Robert W. Flournoy, and contrary to the laws of said state, the good order, peace, and dignity thereof."

The offence here charged is kidnapping a human being, with intent to sell her into slavery, or hold her in compulsory service. This is a crime repugnant, not only to the laws of Georgia, but to natural justice, and to the laws of this state and every civilized country. Nor is it any less a crime, although the grand jury have complained of the wrong as one committed, not against the person wickedly kidnapped, but against Mr. Flournoy, who, by the laws of Georgia is permitted to hold her in bondage. I am obliged, however, to assume that the facts and circumstances of the transaction will not sustain the charge of so atrocious a crime, since your excellency has not thought proper to make this count in the indictment the ground of your demand. I beg leave to assure your excellency, that I shall cheerfully comply with a requisition accompanied with a charge of kidnapping, in any case where there are not good grounds to induce a belief that the charge is false and malicious.

The supposed charge of larceny is found in the first count of