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not been marked by your excellency) to Chitty's Treatise on Criminal Law. That author, speaking of indictments, says:
Larceny is the wrongful taking and carrying away of the personal goods of any one from his possession, with a felonious intent to convert them to the use of the offender, without the consent of the owner (2 East. P. C. 553, Leach 838). To constitute this offence, therefore, in any form, there must be a taking from the possession, a carrying away against the will of the owner, and a felonious intent to convert it to the offenders use." (Vol. 2, part 2, page 674.) By referring to the argument you have reviewed, your excellency might find that it was admitted that if the taking was alleged to be felonious, the intent to convert to the use of the offender might be inferred; but it was also insisted that the grand jury, not having used the word “feloniously” nor alleged the taking to have been with an “intent io convert," the intention could not be inferred from the indictment.
Having, then, so obviously arrived at an agreement in the proposition that the indictment charged only a trespass instead of a larceny, the executive of this state would have been at liberty to hope that your excellency would at once have acquiesced in the propriety of withdrawing the demand, thus terminating our correspondence without its reaching a result which you have on several occasions very emphatically deprecated. But your excellency, influenced by a desire to remove all remaining difficulties, has involved the subject in a new embarrassment, by showing me that the code of Georgia adopts a different definition of larceny, and, overruling the common law, defines that crime in words similar to those in the count upon which you insist. . The applicability of the explanation is not understood, unless it be your object to show that in the code of Georgia, the term “larceny” is substituted for trespass, in distinguishing offences which are not felonious, and are either misdemeanors or private wrongs. Since, then, such are the laws of Georgia, the executive of this state can readily admit, what before seemed incredible, that the statement of the case made by your excellency's agent was correct, and that a demand was presented in the forms of law alleging a charge of larceny, when, in truth, the accused had neither taken nor carried away the supposed property, nor had ever had it in his possession, nor manifested an intent to convert to his own use. It is not now insisted, although we may
reach such a point hereafter, that no being having a human form and substance, soul and body --even though of that sex whose weakness, combined with gentleness, is a sure protection against oppression among civilized men, no matter what shade may have been burned on her brow, nor how long her ancestors may have been held in bondage, nor even though her own limbs may have worn chains from her very birth—can be the personal goods of any frail creature like herself. Before arriving at that question, another invites consideration. Your excellency will find, in the first communication submitted to you by the executive of this state, the statement made by your agent. This statement was submitted to you, with a remark, that if it was true, you must have misapprehended the transaction complained of, and it was therefore that the executive of this state felt more especially bound to insist upon a more full and complete presentation of the facts and circumstances of the transaction than was given in the very defective affidavits of Mr. Flournoy. Although in your excellency's reply, under the date of the 28th of June last, not adverting to the fact that the statement was not assumed to be true, but was submitted to you for explanation, you were pleased to intimate a doubt of the propriety of its reception by the executive of this state, yet your excellency did not controvert the statement, and was understood to affirm it, or at least consent, that it should have the weight of truth, inasmuch as you mentioned that the facts made out a case of larceny, and, beyond question, sustained the charge which it contained, of stealing the slave. It is true, that in your letter now before me, you remark that the justification of the executive of this state thus repeated, to wit, “that the accused was in no other manner guilty of stealing than by persuading and aiding a slave to "regain' her liberty, is not founded in fact.” But this denial is understood to rest upon what you consider an erroneous use of the word “regain,” from your having emphatically marked that word in the manner in which it is herein transcribed, and from your observation that the female was “born a slave, and has so continued since her birth.” Your excellency's generosity will allow your correspondent to state, by way of explanation, and not for controversy, at the present time, that the expression of regaining liberty is idiomatic in this community, where all slavery is regarded as having its only origin, authority, and defence in
physical power, and where it is universally admitted, in the language of the charter of American liberty, that all men are born free and equal, and have an inalienable right to life, liberty, and the pursuit of happiness.
Your excellency will bear in mind that you stated in your second process that the person demanded and the offence alleged were identical with those described in the first. If, besides Mr. Flournoy and the magistrate, before whom the affidavits were made, so high an authority as the chief-magistrate of Georgia, considers that to persuade a slave to seek liberty, and to aid her in her flight from servitude, constitute beyond question a crime of larceny — and if the judicial forms used in the state of Georgia confound simple trespasses with larceny, as your excellency’s last communication would seem designed to show—then the executive of this state can not exclude an apprehension that, in the present case, the grand jury of Chatham county may have presented a mere trespass in the form of a bill of indictment for larceny, a proceeding which can not receive the sanction of the executive of this state, unless subsequent reflection shall remove the present conviction that such a course would tend to confound all notions of moral right, and be dangerous to personal liberty.
Desirous always to surrender any citizen of this state to any of our sister-states, whom he may have offended, the executive can not, at the same time, forget that the rights of every citizen would be brought into jeopardy by his compliance with a demand in which there was so much reason to doubt whether a crime had actually been committed, no matter how unworthy of sympathy or favor the supposed fugitive might be.
Your excellency will, therefore, understand that a compliance with your demand is deferred until some further explanations shall be received to show that there was a taking of the slave with a felonious intent to convert her into property by the offender.
I have the honor to remain, with very high respect, your excellency's most obedient servant.
His EXCELLENCY CHARLES J. M‘Donald,
Governor of Georgia.
THE M'LEOD CASE.
TO THE SECRETARY OF STATE OF THE UNITED STATES.
STATE OF NEW YORK, EXECUTIVE DEPARTMENT,
} SIR: I have the honor to acknowledge the receipt of your letter of the 19th instant, with which was transmitted a copy of a recent correspondence between the department of state and her Britannic majesty's minister to the United States, relating to the case of Alexander M‘Leod, a British subject, who was arrested at Lewiston in November last, and is now detained at Lockport, on a charge of having been engaged in the capture and destruction of the steamboat Caroline in the year 1837.
You will please make known to the president, that at a recent term of the general sessions of the peace held in and for the county of Niagara, Alexander M‘Leod, who is the subject of the correspondence, was indicted for the crime of arson committed in the transaction to which you have referred. The executive authority of this state is not informed of the nature of the testimony which was submitted to the grand jury, but no doubt is entertained that it was sufficient to justify the finding of a true bill. Notwithstanding the legal presumption against the prisoner, it is understood that he asserts confidently his innocence of any agency in the capture and destruction of the Caroline. A just regard for the honor of this state, as well as a due consideration of the importance of the case to the prisoner, and the possible influence of the result of the proceeding upon the relations existing between this country and Great Britain, has seemed to
me to require that the accused should have a fair and impartial trial; that if he participated in the incendiary and murderous transaction with which his name has thus been connected, he should suffer the penalty which our laws prescribe; and that, on the other hand, if he be in truth innocent, the justice of our country ought to manifest itself in his acquittal, notwithstanding the public indignation which the crime laid to his charge has so justly called forth. Influenced by these views, I had, previously to the receipt of your communication, deemed it my duty to require the chief-justice of the supreme court of judicature of this state to preside at the trial of the cause, and had directed the attorney-general to conduct the prosecution. The trial will be brought on at the next court of oyer and terminer to be held in the county of Niagara on the fourth Monday of March next, unless the prisoner shall interpose reasons for delay, or avail himself of his right to demand the removal of the cause out of the court of oyer and terminer, with a view to obtain a change of venue to some other county than that in which the indictment was found. Be pleased to assure the president, that, so far as shall depend upon me, nothing shall occur in regard to the case, inconsistent with the views I have expressed.
The views of the president as exhibited in the correspondence before me are fully concurred in, and his action in accordance with those views will be duly supported by the public authorities of this state. Those authorities desire that all the amicable relations of the country may be continued, and they are especially solicitous for the preservation of the harmony which happily for both parties has so long existed between the United States and the great nation, one of whose provinces is upon our northern borders. Nevertheless the public authorities of the state, as well as the whole people, are obliged by a proper sense of the national honor, and by every consideration affecting the general security, to regard the transaction in which the prisoner is alleged to have participated, “as an unjustifiable invasion in time of peace, of a portion of the territory of the United States, by a band of armed men, resulting in the destruction of American property, and the murder of one or more citizens” of this state. The crimes committed in the aggression, as you have well observed, fall within the jurisdiction of this state, and its authorities, under the provisions of the constitution, act in regard to those crimes, indepen