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appear to have observed the obvious distinction between those provisions of this instrument which transfer powers to the General Government, and those which confirm and enlarge the rights of the States, as they existed previous to its formation. When the States achieved their independence, they had no rules to regulate their intercourse with each other, but such as could be derived from the law of nations. This law as laid down by Vattel in relation to offenders is, that a sovereign “ought not io suffer his subjects to molest the subjects of others, or to do them an injury; much less should he permit them audaciously to offend foreign powers. He ought to oblige the guilty to repair the damage, if that be possible—to inflict upon him exemplary punishment, or in short, according to the nature and circumstances attending it, to deliver him up to the offended State, there to reccive justice. The rule as stated by this eminent author, was defective, as it left it too much in the power of the State applied to, to judge of the nature of the crime, for which an offender should be delivered up, and as no mode of prosccuting was specified, in making the demand, and no compulsory obligation imposed, to ensure a compliance with it wlien made. To remedy these defects, the constitution provides that “a person charged in any State with treason, felony or other crime, and who shall flee from justice, and be found in another, shall, on deniand of the executive authority of the State, from which he fled, be removed to the State having jurisdiction of the crime." It is contended that by this clause, unless a man actually flee, run away, or voluñtarily go into another State, he cannot be demanded by the Governor of the State in which his crime was commitled. The expression flee, is not as comprchensive as others that might have been employed; but as the great ohject of this provision was to secure the punishment of offenders, and thereby preserve the harmony of the States, according to all lhe known rules of construction, it should be taken in the sense in which it was used by the framers of the constitution. The word fee as it occurs in this clause is synonymous with the word evade.
would be trifling with the dignity and importance of the subject to confine this expression strictly to its literal meaning; for it would lead to the absurd conclusion, that if an offender leaves the State, by any means whatever, without his consent, he could not be demanded, or surrendered up to the justice of our laws. Supposc thc case of a man guilty of murder here, who is conveyed by force to Georgia, and is tried and acquitted for supposed offences against the laws of that State. He chooses afterwards to reside in Georgia, and, according to the position assumed, cannot be demanded of the executive; for he did not flee from justice, if to flee is a voluntary act. This provision of the constitution should receive the most liberal construction, for the reason that it is in favor of the rights of the States, and because, without such construction, they will be deprived of the power of self-protection. It is undoubtedly true that the States of the Union, in all their reserved rights occupy to each other the relation of independent sovereignties, and any one of them has the right to demand redress
and satisfaction for injuries done by the others or by their citizens. But having expressly relinquished the power to enter into treaties, grant letters of marque and reprisal, &c., the only means to which resort can be had to secure the obligations which exist between independent States, we should, if we rely on the national code, be restricted simply to the privilege of preferring our complaints with out the power of enforcing them.
STATE OF NEW-YORK,
Albany, 8th Dec. 1835. SIR, The requisition made on me by your Excellency for the arrest and delivery of Robert G. Williams, has been received, together with the documents and papers therewith transmitted; and I have given to the application the careful and mature consideration due to it on account of the high source from which it has emanated, and the very grave question which it presents for my determination. The crime imputed to Williams, is, “ the wickedly and maliciously causing to be distributed and published a seditious paper in this State, (the State of Alabama,] maliciously designing and intending to incite the slave population thereof to insurrection and rebellion against their masters;" and it is alleged in the requisition, that he “has fled from justice, and is now going at large in the State of New-York.”
The indictment charges Williams with having committed the crime in the county of Tuscaloosa, which is within the territorial limits of the State of Alabama; but in your letter to me, transmitted with the requisition, “it is admitted the offender was not in the State (of Alabama) when his crime was committed, and that he has not fled therefrom according to the strict literal import of that term.' For any thing that appears to the contrary, and so I presume the fact to be, Williams, at the time he committed the offence, was and still is a citizen of the State of New York, subject to its laws, and entitled to the rights that belong alike to all its citizens.
The right on your part to demand him, and the duty on my part to deliver him up, if they exist, are given and imposed by that clause in the Constitution of the United States, which declares that “a person charged in any State with treason, felony or other “ crime, who shall flee from justice, and be found in another State, " shall, on demand of the executive authority of the State from " which he fled, be delivered up, to be removed to the State having " jurisdiction of the crime.” Although it is conceded that Williams is not literally a fugitive from the State of Alabama, and nothing appears to show that he has ever been within its territory, yet, according to your construction of the clause of the Constitution above quoted, it is my duty to cause him to be delived up on your requisition. Whether it be so or not, depends, as you conceive,
upon the meaning to be given to the word flee in that clause. I am favored with your exposition of that term, in that part of your message to the Legislature of Alabama, which accompanied the requisition. After the best consideration 1 have been able to give to your views, I am constrained to differ from you both as to your rule of construction applicable to this clause, and as to the effect of the clause construed by that rule.
In settling the proper principle of construing this clause, we ought not to be influenced by the peculiar character of the case under consideration. If your exposition be once admitted, the clause, as expounded by you, must be applied to all cases whatsoever which fall within its operation. If a State can pass laws on the subject of slavery, making the acts of the citizens of other States, done within their respective States, and while they are actual residents thereof, crimes against the State enacting such Jaws, and thereby acquire the right to have these citizens delivered to it for trial and punishment; the same State may pass laws on other subjects which will have the same effect, and establish the same right to demand the citizens of other States who may violate these laws, although they have never been within the limits of that State. The right to demand, and the obligation to deliver up, are co-extensive. In cases to which the constitutional right to demand atraches, there is not, and cannot be any right in the Executive on whom the requisition is made, to withhold the offender, whatever be the character of the act which is made a crime by the laws of the State demanding him. I have presented this view of the subject, not merely to exhibit the dangerous consequences that would he likely to result from adopting the construction you have given to this clause of the Constitution, and thence to deduce an argument against the presumption that the framers of that instrument intended to confer a righi that in its exercise would produce such consequences; but I have considered the subject in this view principally for the purpose of showing that the obligation on the part of the States to deliver up their citizens in such cases as the one. you have presented, is an essential diminution of the powers they would possess as independent sovereignties; and that the sound rule of construction, which you properly concede to be applicable to those parts of the Constitution which transfer power to the General Government, applies with equal force and pertinency to such parts of it as destroy or transfer any portion of the sovereignty of the States. If the fact that this clause of the Constitution confirms and enlarges the rights of the States, as they existed before the formation of the General Government, constitutes, as you contend, an argument in favor of giving it a liberal construction, is not this argument neutralized by the consideration that what it givės to the Slates in one respect, it takes away from them in another? If, by this clause, the right to demand fugitives is given to the States, in cases in which they had it not before the adoption of the Constitution, the correlative right to refuse, in such cases, to deliver up, which must then have existed in all the States, is also taken away by it. If your construction be correct, this cause has con
ferred the power on each State to pass laws that have an extraterritorial operation, and to prescribe rules to which the citizens of all the other States must conform, or be subject to the criminal judicature of every State passing such laws. This is undoubtedly cnlarging the rights of the States in one respect, but it is a serious diminution of their sovereignty in another. It is more than enlarging former rights; it is conferring new ones: It is giving to some of the municipal laws of each State, an extraordinary character—a character that renders them obligatory beyond the territory of the sovereign power which enacts them. It is subjecting the citizens of all the States to new duties, to be imposed on them by a power to which they owe no allegiance, and under the jurisdiction of which they have never placed themselves. It is creating new obligations to be performed by the respective governments of the States.
I have not been able to find the doctripe advanced by any writer on the law of nations that it is the duty of a sovereign state to deliver its own citizens to a foreign power, to be punished for acts done by them while within the territories of their own sovereign. The passage you have quoted from Vattel, which speaks of delivering up the offender, I am persuaded does not apply to such a case, but to the common case of actual fugitives. The paragraph, preceding the one from which you have made the quotation, is as follows: "If the offended state keeps the guilty in his power, he may, without difficulty, punish him, and oblige him to make satisfaction. If the guilty escape and returns into his own country, justice may be demanded from his sovereign. This writer, not having specified a case like the one under consideration, but having mentioned the cases of ordinary fugitives, must, I think, be understood to refer to these as presenting occasions for delivering up offenders, or withholding them, “according to the nature of the case, or the circumstances attending it.”
The demand made by one independent 'nation upon another to deliver up fugitives, I mean fugitives in the literal sense of the word—is not, I believe, generally regarded as founded in a well established principle of right. The right to demand and the duty to surrender, are sometimes given by trca!ies; but where there are no treaty regulations, a coinpliance with such a demand is a matter of comity, and the fugitive is withheld or given up at the discretion of the power within whose jurisdiction he has taken refuge. The provincial government of the Canadas refuses to deliver up the citizens of New-York who have committed offences in their own State and fled into the British Provinces, unless the crime be such as by the laws of England is punishable with death or the infliction of corporeal punishment. 'Many crimes of an agravated character are not thus punished by the British laws. I allude to what I conceive to be the Law of Nations, and to the practice of independent powers, so far as I am acquainted with it, for the purpose of showing that the provision of the Constitution relative to fugitives, is in fact a delegation of power, and should be construed by the same rule that is applicable to the other parts
of that instrument which delegate powers. I certainly do not wish to restrict the range of this power. Limited as I conceive it to be, it is in my judgment very salutary in its operation, and I shall very readily give my aid in carrying it to its full extent: but no consideration can induce me to push it beyond what I deem its constitutional boundary. I am therefore compelled by my sense of duty to apply to this clause of the Constitution, the ordinary and generally approved rule of construing that instrument—the rule which gives to the language used therein its ordinary import.
I perceive you are aware of the difficulties which would result from the exercise of this power, if carried by construction to the extent you propose to give it. You have fairly stated the embarrassments under which the prosecuting power would labour in its proceedings against persons brought from other and distant States within its proper jurisdiction, and there tried for acts done in those States. There are other difficulties and dangers incident to the exercise of this power, not brought into view by you, which deserve serious consideration. What occurs daily in the ordinary course of criminal proceedings, may take place in regard to persons transported to a distant jurisdiction for trial. It may happen that an innocent man will be accused, and if demanded he must be delivered up, should your exposition of the Constitution be sanctioned. Under these circumstances, his condition would be perilous indeed. Dragged from his home; far-removed from friends; borne down by the weight of imputed guilt; and unable probably to obtain the evidence by which he might vindicate his innocence; if appearances were against him, he could scarcely hope to escape unmerited condemnation.
The assumption of a similar power, and the application of it to the American colonists by their acknowledged sovereign to whom they owed full and perfect allegiance, was regarded by them as an act of revolting tyranny, and assigned in the Declaration of Independence, as one of the prominent causes that had dissolved the bands by which they were united to the British king and nation. This consideration renders it, to my mind, very improbable that the framers of the Constitution (almost all of whom were revolutionary patriots) intended to confer on each State the right to cause the citizens of all others to be transported out of their own State to be tried for acts done at home; and I cannot resort to a loose construction for the purpose of extracting such a power from that sacred instrument which emanated from their wisdom and experience.
It is a subject of serious regret to me, that I am obliged to differ from your Excellency as to the rule of construction; but if it were otherwise, I think the result of the application you have made to me would be the same. I am apprehensive, and I say it with all due respect, that any reasonable rule of liberal construction would not extend this provision relative to fugitives, so as to bring the case of Williams within its operation. If we could, by the force of liberal construction, and without unwarranted license, give to the word “flee" in this clause, the same meaning as the ordi[Assem. No. 2.)