. A^ ^ •'■• .V .. ^ •-* -AT •: ^-./ J.'. ^o V^ ^-^Z -^^0^ • cV ^ <> *'T7.' .0 9 ti ^ *: ^°^*.. V %/ r % t*: ^--o^ ■■* .c. % ,*^ 'OK >, ' • » A v^ .j:i^%/"^. 'fe. * v^o^ "^ '"^" -^ .0 %,^^ /' v^ •Jj;^ .; -^^0^ \^ .. % ••• ^° ^ •" aT *. .*' .:^^:.. '.. « '.'iSlK-. '**„.**" . ^^ ' • , n - ^^' 0^_ ♦ . « o ' ^0" ^^•nK '^0-%^' * aV ^ . • « A'^ 0" ..IV. > V ..ii;L'»/«; JP"*. •^ .1* o .^*\.j^.A /..-"-•♦*» " <^ .. ^ '"' -^^ '^ '" \r ^4- •■• ^" v>^^%/-.^|^/,,/\-oysrs^*- -^^"^^^ ^• A^ -.. '^ A<^ ... <<. LETTER / NOTE. It was the intention of the writer to have appended the whole letter of Governor Seward to the Executive of Vir- ^ ginia, in the shape of an appendix. Upon reflection, how- ever, as it would swell this pamphlet to an inconvenient size, and as his extracts from it have been ample in every instance, he has not deemed it necessary or advisable. •^ PRINTED BY WILLIAM OSBORN 88 William-street. 1841. LETTER 7 * TO HIS EXCELLENCY WM. H. SEWARD, GOVERNOR OF THE STATE OF NEW- YORK, THE SURRENDER OF CERTAIN FUGITIVES FROM JUSTICE. J^ J^O^. '(TccA-tcy ^J/^'oy If Egypt's race should any claim pretend O'er you by any law, or rule of theirs, Because they say you are their nearest kinsman. Who could withstand the plea, or argue it false ? Why, you must prove by your own native laws That they have no such power. The Supflices of Eschylus, 3, p. 32, quoted by Grotius. y^^-' NEW -YORK: PRINTED BY WILLIAM OSBORN 88 William-street. 1841. £4ts- TO HIS EXCELLENCY WM. H. SEWARD. Sir, I PROPOSE to address you upon the subject of your pending controversy with the Executive of Virginia, touching the surrunder of certain fugitives from justice. They are charged "with having stolen within the juris- " diction of Virginia a slave, the property of a citizen of « Virginia, and with having fled to the State of New- York." The offence is a felony by the laws of the former state. The matter is one of grave moment to the peace of this country. A requisition is made for their delivery, under the second section of the fourth article of the Constitution of the Uni- ted States ; the language of which is as follows : " A per- " son 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." Your Excellency declines acceding to it upon the ground that the stealing of a slave, although a felony by the laws of Virginia, does not constitute one of the crimes contemplated in this clause of the Constitution. In other words, that slavery has been abolished within the limits of New- York, and that her autho- rities, therefore, can never recognize the principle that one man can be the slave of, or stolen from another. In sup- port of these positions you have laid down several proposi- tions which I shall examine consecutively. The first, and perhaps the most important in your argument, is, that the object of the Constitutional provision " was to establish in " the intercourse between the states the principle of the law " of nations, which recognizes the mutual rights and obli- " gations of sovereign and independent governments to de- " mand and surrender fugitives from justice."* Having estab- lished this to your satisfaction, you go on to assume that by the principles of the law of nations and the practice of Euro- pean governments, there is no right to demand, and it has not been the custom to surrender fugitives from justice ex- cept in cases of " crimes of great atrocity or deeply affecting " the public safety." The late Governor of Virginia very properly declines discussing these points with you ; say- ing, very correctly, that the law of nations has nothing to do with the interpretation of the Constitution of the Uni- ted States, and that to connect them in any way would only be unnecessarily to encumber and embarrass the question. That it is purely one of constitutional con- struction, and to be determined as all questions of this sort are — by reference to the language of the provision, and the intention of those who framed it. With this he contented himself. He did not deem it necessary to offer any obser- vations in support of views so obviously proper. The con- sequence has been, that you have been left in undisturbed occupation of all your positions, touching the connection be- tween the Constitution and the law of nations. Now, while I wholly coincide with Governor Gilmer in the above doc- trines, I am not disposed to let your Excellency enjoy any advantage from the impunity which your arguments have enjoyed on this branch of the case. You complain, too, that in these views he takes different grounds from that of his predecessor, and thus shuts you out from the benefits of the victory which you very complacently assume to yourself to have gained over the latter at this stage of the contest. I shall not imitate the governor in this respect. I shall dis- cuss the question in every possible aspect, and for this pur- * Vide Appendix. pose shall first, with your permission, review that part of the controversy between yourself and Lieutenant-Governor Hopkins,* which you complain is excluded from all con- sideration in the argument with his successor. To begin then with your first proposition, that the object of the constitutional provision, just quoted, was " to estab- " lish, in the intercourse between the states, the principles ^' of the law of nations, which recognizes the mutual rights " and obligations of sovereign and independent nations to " demand and surrender fugitives from justice." It strikes me as so extraordinary a one, that if I did not know that the matter was too grave a one for jest, I should find some difii- culty iu believing your Excellency serious in asserting it. Why, sir, there are no such principles in the law of nations ! As an American citizen, bound by his government's inter- pretation of national law, and by the weight of judicial autho- rity in his own country, I feel authorized in making this de- claration. As a professional man, examining for myself by the light of books and the practice of enlightened nations, I do not hesitate to confirm it. You admit yourself that there are eminent writers on international law who deny the ex- istence of any such principle, and you say you are aware that it has been never practically recognized by the govern- ment of the United States. How then, sir, can you persist in positively asserting that the object of the con- stitutional provision was to incorporate this principle, and upon this arbitrary and unwarrantable assumption, pro- ceed to determine so grave a question as this between you and the executive of Virginia Let us see the state of this question among the writers on national law. Voet, one of the most distinguished of them, and for a long time a professor at one of the established colleges of the United Provinces, distinctly says, that by the customs of all Chris- tendom, (except Saxony), the surrender of criminals is not ♦ The Acting Governor of Virginia before Governor Gilmer's election. admitted save from humanity : " Moribus nihilominus, (non tamen Saxonicis) totius fere Christianismi nisi ex humanitate non sunt admissee remissiones," Voetde Statutis, § 11, ch. 1, n. 6, p. 297. Puffendorf, on the same subject, has the follow- ing language : " If we are obliged to deliver np a criminal, it is rather in virtue of some treaty, than in consequence " of a common and indispensable obligation :" quoted in " 2 Burlamaque, p. 4. sec, 23, 24, 25, 26, 27. Martens writes : " No sovereign state is bound, except by compact. It may " punish foreigners whether they commit a crime in its do- " minions or in those of other states, but in neither case is it "/jer/ec^Zy obliged to send them for punishment to their own " country, nor to the place where the crime was committed, not "even supposing them to have been condemned before their " escape. The extradition however is voluntarily practised by " certain states as a matter of general convenience and comity." Marten's Precis du droit des Gens, lib. 2, ch. 3, s. 22, p. 107. Merlin, the celebrated continental jurist, holds the same doctrine. Merlin Repertoire de Universelle, et Rai- sonne Jursprudence, tit. Souverainete. The Marquis of Beccarai inclines the same way. Ch. 35, p. 134. ,Ward rests the matter on treaties and. conventions. Lord Coke says — " It is holden, and so it hath been rendered that divided " kingdoms under several kingdoms in league one with an- " other are sanctuaries for servants and subjects flying for " safety from one kingdom to another, and upoji demand made " by them are not by the laws and liberties of kingdoms to be " dilivered up, and this (some hold) is grounded upon the law " in Deuteronomy, non trades servum suoquiadteconfugerit." 'He cites three instances showing the practice of England at past periods of her history, first, that of Morgan and others, who were demanded of Henry IV. of France by Queen Elizabeth, as having been guilty of treason against her realm. The French king refused to surrender them, saying, " that " if they had machinated any thing against the queen in France " he could lawfully proceed against them, but if the offence '' was committed in England he had no right to take cogni- " zance of it. That all kingdoms were free to fugitives, and " that it was the duty of kings to defend every one the liberties " of his own kingdom," and that Elizabeth had not long before received into her kingdom, Montgomery, the Prince of Conde, and other Frenchmen. The second instance is that of Cardi- nal Pool, who was demanded of the King of France by Henry VIII. of England, " as being his subject and attainted " of treason.-' The requisition was not successful, although Henry had a treatise written to prove its justice. The third case is that of the Earl of Suffolk, attainted of treason by parliament, and demanded by Henry VII. of England of Ferdinand of Spain. Ferdinand at first refused to give him up, although he afterwards consented upon the promise of the King of England not to put the earl to death. To these instances of Coke's showing the uniform refusal of England, France, and Spain, to recognize any such principle of the law of nations, a distinguished jurist has added the case of Perkin Warbeck, a pretender to the throne of England during the reign of Henry YIL, who having fled to Scotland, was protected by its king. In this country but two cases have occurred in which it was necessary to consider this question, and in both of these our government has distinctly repudiated any such principle. The first was that of Chevalier de Longchamps, a subject of the King of France, who, in 1784, before the adoption of the Constitution, was demanded of the Executive Council of the State of Pennsylvania, by the French ministry, to be sent to France to be punished for an insult offered to Mr. De Marbois, Secretary of the French Legation and Consul General of France. The council consulted the judges of the Supreme Court, and afterwards refused to deliver up De Longchamps. Yide, 1 Dallas, 11. The second case occurred in 1793. M. Genet, Minister of France, applied to Mr. Jefferson, then Secretary of State, for a warrant to arrest se- veral persons, citizens of France, who had escaped from a French ship of war after committing crimes against the Re- public. Mr. J. answered, " that the laws of this country " take no notice of crimes committed out of its jurisdiction. " The most atrocious offenders," he goes on to say, " coming '• within its pale are received by them as innocent men, and " they have authorized no one to seize or deliver them up." General Washington was at this time President, and Hamil- ton Secretary of the Treasury. Afterwards, during the pre- sidency of Mr. Madison, in the instructions from Mr. Mon- roe, then Secretary of State, to the Plenipotentiaries at Ghent, appeared the following language •.■* " Offenders, even " conspirators, cannot be pursued by one power into the ter- " ritory of another, nor are they to be delivered up by the " latter, except in compliance with treaties or by favor." In the speech of the late Chief Justice of the United States, in the celebrated case of Jonathan Robbins, who was dehvered up to the British Government by the elder Adams, it is a very remarkable fact, says Chief Justice Tilghman, in the case just quoted, that no allusion is any v/here made to the doc- trine of a binding obligation on nations to deliver up fugi- tive criminals. This having been the course of our government from an early period down through Mr. Madison's administration, it would not be surprising that our courts should enter- tain correspondent views. Accordingly we find that after an elaborate consideration of this question, in the two cases of Commonwealth v. Deacon, in 10 Sergeant &. Rawle, and in that of Jose Ferreire Jos Sentos, 2 Brockenbro', 492, it was decided by Chief Justice Tilgh- man and Judge Barbour, that there was no principle in the law of nations which imposes a perfect obligation on sovereign States to deliver up criminals seeking refuge within their territories, and that the United States conse- quently could acknowledge none. Their opinions are based upon a thorough examination of all the leading autho- ♦ Vide 10 Serg. & Rawle, Conunonwealth v. Deacon, 123, Opinion of Chief Justice Tilghman. rities upon this subject, as well as the usages of the civilized nations of Europe. Chief Justice Story leans to the same doctrine in the case of the United States v. Davis, 2 Sumner, 486 ; and so does Chief Justice Parker, of Massachusetts, in the case of the Commonwealth v. Green, 17 Mass. 575. On the other hand, however, I will frankly acknowledge that there are writers of great celebrity, as Grotius, Heineccius, Burlamaqui, and Rutherford, who contend resolutely for the existence of such a principle, and the distinguished author of the Commentaries on American Law has given in his adhesion to their views.* But is it not worse than idle to talk of a principle as en- grafted into our Constitution, to guide the governments of the different states of this confederacy in their intercourse with each other, whose very existence is thus denied by the larger number of European and American jtirists, disclaimed at different periods by the most enlightened nations of Europe, and expressly repudiated by our own government in the only two cases in which the question has come before it for consideration ? You could not cast a graver re- flection upon the wisdom of those great men who sat in the Convention of 1783. If such had been their purpose— if they had really designed to have incorporated any principles of the law of nations with the Constitution, one would have supposed that they would at least have deemed it expe- dient to have done it in language declaratory, and not have left them to be expounded by the thirty or forty future go- vernors of this wide spread and growing confederacy, to some of whom the principles of Vattel and Grotius are as httle likely to bo known as those of the Talmud and Koran. What, under such circumstances, would probably come of that " sublime science, whose seat has been eloquently saidt " to be the bosom of God, and whose voice the harmony of the " world." " Nee erit alia lex Romae, aha Athenis, alia nunc * Vide 4 Johns. Chan. 113. t Hooker, 10 " alia posthac, sed et omnes gentes, et omni tempore una lex " et sempiterna et irnraortalis contenebit,"* &,c., exclaims the enthusiastic Roman while speaking of the law of nations. Alas ! how dilferent will be the language of some American Cicero in after years on this same subject, when the princi- ples of this noble code shall be heard proclaimed from the Sabine, then from the Mandan towns, anon from Little Rock, and a dozen places intermediate, to Cape Cod ! Let it be admitted, however, for the sake of argument, that such was the intention of the framers of our Constitution, how, as the Governor of Virginia very properly asks your Excellency, are the questions arising under these em- bodied principles of the law of nations to be decided, if the states have conceded no power for this purpose to' the federal government nor retained any themselves. The law of nations is intended for the regulation of the in- tercourse of sovereign and independent states, who have not parted with the power of declaring war, or of negotia- ting in cases of its violation. Without such power, the correlative rights and obligations are mere abstractions, ut- terly powerless to stay the ambitious nation in its career of aggression ; and yet you would have us believe that it is to such shadows that the states are to look for the protection of their property under that Constitution which they signed and adopted for its more effectual security. Once sovereign and independent, they stood encircled by the walls which nations have thrown around each other in the shape of international law, while they held in their hands the great weapons of war or negotiation. Not yet secure enough, however, for their more effectual protection, in an evil hour they adopt a Constitution ; which has but robbed them of their arms, given them none other in return, and left them but their walls, but now unmanned and undefended. You take from a man Cicero tie Republica, Lib. 111. 11 the means of defence with which nature has provided him, persuading him to rely upon the more effectual protection of the laws, and when you have disarmed him, you then leave him in his unprotected state, a prey to the assaults of the bri- gand and the assassin. Delusive, indeed, would be the protection of the Constitution, and fatally would the states have impaired their original sovereign rights by its adop- tion, if these are to be the necessary results of a legitimate interpretation of its provisions ! Your Excellency thinks not, however ! The right claimed by Virginia in this case, you say, is not " one of the original rights supposed," nor do you think that the government of the United States would feel called upon in a similar case to demand a fugitive criminal from Great Britain, nor would it be justified, by the sense of the world, in declaring war in the event of a refusal to sur- render. The original rights of the States, as understood by Governor Gilmer, and as must be obvious to every one, can mean but tlie rights of war and negotiation, and cannot be tested by reference to any probable or assumed course on the part of our government towards Great Britain, or any other power, in any supposed case of difficulty between them. That, however, which it has already pursued towards the latter kingdom in relation to the slaves driven some time since by stress of weather into the ports of Ber^ muda and New-Providence, on board of the schooners Em- porium and Enterprise, evince a far different idea of the principle of the law of nations on the subject from that which your.Excellency has manifested, and would indicate a very different result in the supposed case from that which you have ventured to predict. Their liberation has been de- manded, and pecuniary compensation to their owners for the injury sustained by their detention insisted upon. The Bri- tish government have yielded to the justice of both claims, the slaves have been set at liberty, and the necessary papers are now being prepared, or have been already transmitted to our diplomatic representative at the Court of St. James, to enable the two governments to agree upon the amount of indemni- 12 fic.ition. Here, at least, in this instance, we see the United States peremptorily and positively enforcing, even in her in- tercourse with foreio-n powers, the proscribed principle that one man can be the slave of another, and insisting suc- cessfully, at least upon its practical recognition by them. What will be its course in any other given case arising under the principles of the law of nations, touching the surrender of fugitives charged with stealing a slave, I do not know and will not pretend to anticipate, believing as I do that no such princi- ples exist. This one thing, however, is certain, if nations have a right to demand from each other the surrender of fugi- tives from justice in all cases of crime, and there should be no treaty between Great Britain and this country on the sub- ject, and the former should refuse to give up a criminal charged with stealing a slave in the United States, our go- vernment would be false to its duties, to its compact with the states, and the spirit of the Constitution, if it did not enforce the demand in every way required by the dignity of a sovereign power. Be this, however, as it may, there can be very little doubt what course Virginia, under such circum- stances, would pursue, were she not shorn of her strength by this Delilah of a Constitution. But " negotiation," you say. remains in the shape of an amendment to the Constitution by three-fourths of the states. If this is the right of negotiation, or as it is otherwise called, the treaty-making power, it is indeed fearfully maimed and mutilated. Twenty-six sovereign states to be consnlted in the adjustment of an international right in dispute between New-York and Virginia ! Among so many and varying in- terests, with the adverse views and feelings of the diflerent portions of this great confederacy on most subjects, and par- ticularly on this, what probability do you think there would be of getting the consent of three-fourths of them to any measure of this nature ? It is worse tlian mockery to talk of such a remedy. What would remain then ? Submission to the wrong, or secession and war ! I now come to your second proposition — that the princir 13 pies of the law of nations, (assuming it proved, as yon allege, that the object of the constitutional provision in question was to establish them in the intercourse between the states,) would not authorize a demand for a fugitive from justice in a case like that of Virginia's. The only authority I can find that your Excellency gives for this opinion, is contained in the following quotation from Grotius : " That for some ages " past the right of demanding fugitive delinquents has not " been insisted on in most parts of Europe, except in crimes " against the state, and those of a very heinous nature." Now, sir, taking into consideration your avowed principles, I might safely proceed to argue this question upon this ex- tract alone. You contend, you will recollect, for the ex- istence of a clear and indisputable right on the part of a sovereign state, by the laws of nations, to demand the sur- render of fugitives from justice escaping into the dominion of another power. If this be really a principle of the laws of nations, it must necessarily be based upon some other principle equally just and probably more obvious; perhaps upon the doctrine laid down by many v,^riters, that penal laws are not local in their etfects, but follow the criminal wherever he flies, Statutura personale ubique locorum per- sonam comitatur,* This would, at least seem intelligible and plausible. If this principle be then the basis of such mutual right and obhgation of sovereign states, it is difficult to understand the reason of its limitation in practice to crimes of the highest magnitude, or those deeply affecting the public safety. There is certainly no such qualification of the principle of the ubiquity of penal laws ; if they fol- low the criminal beyond his own government into the terri- tories of another power, wheti he has committed treason, they do not stop at the confines of the two states when he has com- mitted theft. But you may not perhaps be willing to concede that these rights of sovereign states are formed upon this prin- * Voet de Statutis, 4 4, ch. 2, n. 6, 123, qurjied by Story on Conflict of Laws, Martin Precis du Droit des Nationes, b. 3, ch. 3, § 223. 14 ciple of penal jurisprudence. Let us see, then, what Vattel says upon the subject : " And since no sovereign should permit " his subjects to molest or injure those of another, much " less offer a grievous insult to foreign powers, it is his duty " to compel the offender to repair the damage or injury if <' possible, or punish him exemplarily ; or, according to " the case and circumstances, to deliver him over to the " offended government for punishment."* It will be re- collected that you have been speaking of a right and obligation of states springing out of the laws of nations, and not of the pr^ictice of this or that nation in the exercise of such right, or the performance of such obligation. Keep- ing this fact in view, will you point out in the foregoing language, containing the statement of the duty in which said obligation has its origin, so far as regards the citizens of one's own state, that part which authorizes you to restrict such obligation to crimes of the greatest magnitude or those deeply affecting the public safety ? If it is the duty of a government, as Vattel says, to see that its citizens do not murder those of another government, it must be equally the duty of a government to see that its citizens do not steal the property of those of another government ; and if it is its duty to see that its citizens do not steal the property of those of another government, it must be equally the duty of such government to see that its citizens do not assault, slander, or maltreat, or otherwise injure such citizen of another government. This, I presume, your Excellency will not deny. If the duty, then, of a government extends to every spe- cies of injury which its citizens are capable of inflicting, must not the corresponding obligation to surrender the offender * Et puis que celuici le (souverain do I'aggreseur) nedoit; point souffrir que " ses sujets niolesteiit Ics sujets d'uuiruiou leur t'assent injure, beaucoup moins " quils otiimscnt audacieusement les puissances etrangeres il doit obliger le coupa- " ble a reparer le dommagc, ou I'injure, si cela se peut, ou le punir exemplaire- " ment ou enfin stlon le cas et les cerconstancei le livrer a i'eiat offense pour en " faire justice." Vattel Droit de Gen. Liv. 11) ch. vi. § 76. 15 be eqiinlly comprehensive, and include, tlierefore, the mur- derer as well as the traitor, the thief as well as the murderer. What is the language itself of the whole paragraph, part of which you quote from Grotius? "But in most parts of " Europe, for some ages past, this right of demanding fugitive " delinquents for punishment has not been insisted upon " unless the crime be such as affect the state, or are of a " very heinous and malignant nature. As for lesser faults it " has been the custom to connive at them, unless by the arti- " cles of the treaty it has been particularly agreed on to the " contrary."* Now, sir, with all due deference, permit me to say, I am at a loss to discover, even in any part of this extract, any authority for your limitation of the right of surrender to " crimes of great atrocity, or deeply affecting the public " safety." You will scarcely contend, because some Euro- pean governments have not thought proper, from considera- tions of convenience, or from a common understanding, to insist upon its exercise, except in crimes of the deepest dye, that it has been annihilated so far as relates to those of a milder character. This would be a strange destiny indeed for a great original principle, having its origin, you say, in the law of nature, and the common and universal sanction of a civilized world ! " The law ofnations,"says Burlamaqui,* " is the law of nature ;" the law of nature is the law of God, traced on the hearts of us all, for our common happiness, and changes not ! But to return to the language of Grotius ; why, let me ask, did you confine your quotation to the first of the two paragraphs which 1 have just extracted ? Can it be that the expression " connive at them," used in the latter in re- ference to the practice of ihe European governments on the subject of the lesser faults, could have escaped your obser- vation, or that seeing it, you could have been unaware of the * Grotius de Jure Pacis ct Bellin, B. 4, c. xx. n. 5. t Burlamaqui, 164. 16 importance of its signification? I am strangely in error if this language does not emphatically show that Grotius still believed the original right to demand, and obligation to sur- render, to exist unimpaired in all their ancient extent, and that the custom to which he alludes as existing among some nations for some centuries past, of limiting it in practice to crime of a heinous nature, had by no manner of means affected it. If this was not his meaning, why the use of such language as this, "as for lesser faults it has been the custom " to connive at, them." If there were no right to demand or obligation to surrender lesser criminals, whence the ne- cessity of conniving at their escape ? A prompt and pe- remptory refusal would be all that could be required or anti- cipated, under such circumstances; and Grotius, in com- mentating upon the principle, would have said, perhaps, that an effort had been made by some nation to extend it in prac- tice to lesser faults. It is impossible, it appears to me, to come to any other conclusion. He is speaking of a princi- ple of the law of nations which enforces an obligation upon governments to surrender criminals who may have sought an asylum in their territories ; and he goes on to say that although extending naturally to every species of crime, whether atrocious or venial, it has not been insisted upon in practice, for some ages past, by the nations of Europe, ex- cept in cases of the former character. In those of the lat- ter — the lesser crimes or faults — although the right to de-' mand, and the obligation to surrender, is equally strong by the principle of the law — it has not been deemed expedient to insist upon its rigid exercise or observance, either with a view of saving trouble, or from considerations of policy. Nothing would be more natural since these smaller offences do but little injury to the states or its citizens, and govern- ments might well agree, by a sort of compact or common consent, to say nothing about them, and to connive at the escape of those charged with their commission. That this is a fair interpretation of the language of Grotius, no can- 17 did man, it appears to me, can doubt.* If it be so, then, ac- cording- to his authority, the great original right to demand, and obligation to surrender fugitives from justice, which you contend for as an essential principle of the law of na- tions, and one embodied in the Constitution of the United States, still exists in all its ancient extent — comprehending every species of crime, whether great or small — was for centuries made the rule of practice among the nations of Europe, and has only lately ceased to be enforced, ("for some ages past,") and then not by all of them (" most parts of Europe,") in cases of the lesser faults. What is to be thought now of language such* as the following, made use of by you in your letter of November 5th, 1840, to Governor Gilmer.t " The fact that it" (meaning the right to demand fugitives and the obligation to surrender them,) " has never been extended to other offences than those of " an atrocious or heinous description, and such as were re- " cognized to be of that character by the nation upon whom " the demand was made, affords the best evidence that " there is no good reason for its extension to any other •' crimes." Here, with all due respect, is the gratuitous as- sumption of a fact, that the rule has never been extended to other offences than those of an ^atrocious and heinous description, in which you are not only 7iot sustained, but indirectly contradicted by the very authority you yourself have quoted, and in addition to this the arbitrary limi- tation of the original right to such cases, and putting the question as one of extension of such right, when Vattel and this same authority make it as broad as the duty in which it has its origin. I have now finished the consideration of your principles and authorities on this branch of the case : without re- * The same view of Grotius' meaning has been taken by Chief Justice Tilghman in the celebrated case before quoted, of Commonwealth v. Deacon, 10 Serg. and Hawle, 123. t Vide Appendix. 3 18 ference to them your Excellency will now permit me to give yon my views of it. All that I shall assume for the present is, that the stealing of a slave constitutes an offence or crime of some sort or other. Upon the subject of this mutual right and obligation of nations, you will find that Yattel, after alluding to the duty of sovereigns to take care that their subjects do no injury to the citizens of other governments, or the government itself, and the con- sequent obligation to punish the criminals themselves, or hand them over to the offended nation, uses the follow- ing language : " This is what is observed generally »' enough with regard to great crimes, which are equally " contrary to the laws which all nations have enacted " for their security. Assassins, incendiaries, and robbers, " or thieves, are seized every where upon the requisition " of the sovereign in whose territories the crime has been " committed, and handed over to his justice. They go " still farther in states more nearly allied by friendship and " proximity. In cases even of the common offences, which " are prosecuted in civil actions, whether it be for satis- " faction for the injury, or for a slight civil punishment, " the subjects of two adjoining states are mutually bound " to appear before thft magistrate of the place where they " are charged with having committed the offence. Upon "a requisition of. this magistrate, which they term a let- " ter rogatory, they are summoned judicially, and con- " strained to appear by their own magistrate. Admirable " institution, by which many neighboring states live toge- " ther in peace, and appear to form but one republic !"* Farther on in the next paragraph he says : " The sovereign " who refuses to repair the injury caused by his subject, or " to punish the criminal, or to deliver him up, renders him- " self, in some measure, the accomplice of the injury, and •' becomes responsible for it. But if he delivers the property * Vattel, Droit dea Gena, Lib. 11, c. vii. § 77. 323. 19 " of the criminal for indemnification, in those cases which " admit of reparation in this way, or the individual himself " to undergo the punishment due to his crime, the offended " party has nothing farther to ask of him."* Of no part of these extracts from Vattel can I suppose your Excellency to have been ignorant, and yet in writing to Governor Gil- mer of these crimes, which fall within the cognizance of the law of nations, and are alike contrary to the laws of all countries, you make use of the following lan- guage : " The science of jurisprudence is not as imper- " feet and vague as you suppose. The principles of "a moral law were written by the hand of God in " the hearts of men. The light of revelation brings them " out in bold relief, and I apprehend that on examination of " the common law, the civil law, and the statutes of all civi- " lized and christian countries, it will be found not only that " murder, treason, arson, burglary, forgery, perjury, rape, " incest, bigamy, and the hke, are crimes, but also that they are " neither lesser faults nor ordinary transgressions, while " adultery, petty stealing, libels, trespasses upon lands, and " the like, are not regarded as crimes of great atrocity, or " deeply affecting the public safety." This enumeration, T take it, comprehends all the crimes which you suppose to come within the denomination of great crimes, and conse- quently within the meaning of Vattel, and the other writers on national law, when speaking of legitimate cases of extra- dition, and yet it contains no allusion to any species of theft, whether robbery or theft by force, grand larceny or theft by stealth. Passing by now your reasons, which it would be curious to know, however, for adding forgery, perjury, rape, and incest, to the catalogue, and taking robbery from it, let me inquire how, upon any fair rule of interpretation, or with a proper regard to the meaning of this last author's Vide Idem. § 77. 20 words, do you consider him, in the paragraphs jnst quoted, to exclude theft, or grand larceny, from among those crimes which constitute legitimate subjects of surrender under the modern practice of nations ? " Les assassins les incendiairies les voleurs," he says, are seized every where upon the requisi- tion of the offended nation ; and in states more intimately connected by friendship and neighborhood, they carry the practice still farther ; they surrender even in cases of the smaller or common offences, such as are prosecuted by civil actions. Now, sir, permit me to remark, that the word " voleur," here used by Vattel, does not mean robber alone, as indicative of one who steals by force, in contradistinction to one who steals by stealth. In this conclusion I am sus- tained by the concurring testimony of dictionaries of high- est repute in France, as well as more powerfully, if possible, by the context itself of the writer. Vole^ir is a generic word, applying to all classes of thieves, as well to those who rob by force, as to those who rob in secret, and it cannot be confined p^-operly to either of the two kinds to the exclusion of the other.* That Vattel intended to use it here in its correct sense, and consequently as comprehending great thieves, or those committing the larger offences of simple larceny, as well as robbers, or those committing compound larceny, it is impossible to doubt without some better reason than any that appears in the section itself. Indeed, if we have refe- rence to the entire context, as before intimated, this conclu- sion becomes a matter of almost positive certainty. After stating, as above, that assassins, incendiaries, and " les voleurs," are surrendered by all nations, he goes on to say, that in states more intimately allied with each other, they ♦ Voleur celui, cdle qui a vole, ou qui vole habituellement. Les voleurs des grands chemins. Voleur domestique voleur des nuii. Voler, v. a prende furlive- ment ou par la force la chose d'autrui pour se I'approprier. Voler le bourse de quel qu'un, voler d'argent. Dictionary of the Krench Academy. Voleur, Latro. fripoii qui vole, qui a vole, en general cclui que par la force, ou par la ruse s'emparedu bien d'auirci. Boist. Universal Dictionary. Voleur— thi«f. Boyer. 21 carry the custom so far as to surrender even in matters of common offences, "des delits communs," which are the subject of civil prosecution. Now, clearly, theft, particularly grand simple larceny, cannot be regarded as a common offence, nor is it punishable in a civil action for damages, and therefore unless the term voleurs is supposed to mean thieves, as well as robbers, the crime of simple theft, even in the most aggra- vated cases, would seem to have been excluded from all con- sideration in the intercourse between nations, and to consti- tute a clear casus omissus in their practice. This involves too gross an improbability to be believed for an instant, and I should be justified in resorting to almost any supposition that would remove the necessity for its adoption. I am autho- rized, then, I think, fully in concluding the correct trans- lation of the word voleurs to be thieves, and the crime of theft, at least when grand larceny, to come within the prac- tice of those nations of Europe on the subject of the surrender of fugitive delinquents, to whom Vattel and Grotius allude. This conclusion is powerfully, and most convincingly strengthened, when we reflect upon the utter cibsurdity of making any distinction between the crimes of incendiarism, robbery and theft, on the score of their repugnancy to the laws of the civilized world, and their incompatibility with those which every state has adopted for its preservation and security. " Des grand crimes qui sont egalement contraires aux lois de surete de toutes les nations," (great crimes, which are equally contrary to the safety, or the laws of safety of all nations,) is the expression of Vattel. Murder, then, burning of houses, and robbing men of their property, are great crimes, equally contrary to the laws, or incompatible with the safety of all nations,— murder as destructive of life — ^incendiarism and robbery as destructive of the security of property. Arson, it is true, is said be a greater crime than theft, for some fanciful reasons which the writers on criminal law give ; and so is robbery they say, because it is accompanied with an assault upon the person, but the atrocity of both 22 crimes, and the danger which they threaten to the safety of a community, are derivable ahke from their violation of the right of property. Theft strikes at its very foundation, is punishable in England by death in the same man- ner as arson and robbery, and it may fairly be presumed to be contrary to the laws of every civilized nation on earth. It is wholly subversive of the great object for which society was instituted, utterly destructive of commercial intercourse, and the nation that permits it could not preserve its foreign relations for an hour, or live a day without an internal revo- lution. The laws which restrain it lie at the very founda- tion of social order, and may be said to be of more consi- deration than those which guard life itself, since the latter, without the means of sustenance, could not long be pre- served. Can theft, then, be properly affirmed not to be a great crime, repugnant alike to the laws, and incompatible with the security of all nations? Again, Vattel has this language : " But if he delivers up " the property of the offender by way of compensation, in " cases which admit of this species of reparation, or his per- " son, that he may suffer the penalty of his crime, the " offended nation has nothing further to ask of him." Now, it is a very remarkable circumstance that to no one of the crimes which you enumerate as coming within the principle of the law of nations, has pecuniary compensation ever been, or can it be, with any propriety, applied ; — no judge or lawyer ever having heard, I presume, of giving money in satisfac- tion of murder, treason, arson, burglary, forgery, perjury, rape, incest or bigamy. There must, then, even according to Vattel, be some other crimes than these in which it is the duty of nations to surrender up fugitives from justice, or make atonement in some other way for the injury they have committed, and what they can be, if theft is not one of them, I confess I am unable to determine. These are ob- vious reflections, which I find some difficulty, you will permit me to say, in believing could have escaped a mind 23 of so much sagacity as your Excellency's, and my doubts are very much increased when I find that in two cele- brated cases, determined, the one in the neighboring province of a great empire,^and the other by a late chancellor of New- York, one of the two most distinguished living jurists of this country, it has been solemnly adjudicated that theft is one of the crimes which fall within the law of nations, and constitutes a legitimate case of surrender under its principles. " The crimes," says Chancellor Kent, " which belong to " the cognizance of the law of nations, are not specially de- " fined, and those which strike deeply at the rights of pro- " perty, and are inconsistent with the safety and harmony of *' commercial intercourse, come within the mischief to be " prevented, and within the necessity, as well as the equity of " the remedy. If larceny may be committed, and the fugi- " tive protected, why not compound larceny as burglary and " robbery, and why not perjury or arson ? They are all " equally invasions of the right of property, and incompati- " ble with the ends of civil society."* " The objection," argues Chief Justice Reid, " that the offence charged against " the prisoner (theft) is not of that enormity as either to re- " quire or permit that the executive should interfere to deli- " ver him up can have no weight. It would be difficult to " establish a rule, where none has been settled, to enable us '' to distinguish the shares of enormity of different offences, " their evil tendency or pernicious effects, so as to limit the " power of the prerogative as applicable only to such crimes " as are productive of a certain quantum of evil in a state. " The certain and positive rule laid down by all writers on " international law, and the decisions had thereon, as above " referred to, is, that where a crime has been committed, the " criminal may be surrendered to the offended country. " There is certainly great difference of opinion as to what " kind of crime this ought to apply, some hol'ding it to ex- * Matter of Washburn, 4 Johns. Ch. Rep. 113. 24 " tend to high treason, robbery and murder, while others, " apply it to minor ofTences, and even civil damages, but " where the general right is acknowledged it must be left to " neighboring nations to determine the necessity of enforcing " it according as to good policy and sound discretion shall " require."* This is not all : the existence of a power to surrender fugitives from justice being conceded to exist, the reasons for extending it to theft, as well as all other cases of felony, have been so obvious as to induce Mr. Chitty, in his Treatise on Criminal Law, vol. 1, p. 136, to lay it down as a general established principle, " that if a person, having " committed a felony in a foreign country, comes into Eng- " land, he may be arrested here, and conveyed and given up " to the magistrates of the country against the laws of which " the offence was committed." With these various decisions and authorities before you, for I am not at liberty to presume you to have been unacquainted with them, I confess, with all proper respect, I am utterly unable to conjecture any rea- son or justification for your deliberate exclusion of the crime of theft, from an express enumeration of those offences, which come alone within the principle of the law of nations, on the subject of the surrender of fugitives from justice, and, consequently, according to your doctrine, within the provi- sion of the Constitution of the United States. If there were not a word in the pages of Vattel or Grotius upon the sub- ject, and the principle had never come before the tribunals of New- York, or the United States, for consideration, your own unassisted reason, engaged in reflection upon its origin, its object, and its character, and apprized that incendiarism and robbery were among the crimes which came within its scope, as being contrary to the laws of safety of all nations, must at once, I should have thought, have led your Excel- lency to suspect that theft could not properly be excluded. * Court of King's Bench, Montreal, June 20th, 1827. Dom Rex v. W. E. Ball e( al., 7, on Habeas Corpus, American Jurist, vol. 1, 307. 25 Every obligation has its origin in a duty, and every law in some principle of public policy, or the protection of pri- vate rights. There is no imaginable duty which you could predicate of a government that would create an obligation to surrender an incendiary, a house burner, a counterfeiter, or a robber, and leave it at liberty to act as it pleased, when the thief who had stolen fifty thousand dollars of the property of a subject of a foreign government was demanded at its hands. There is no principle of public policy, or protection to pri- vate rights, that, violated by incendiarism, by arson, by forge- ry, or robbery, would not be equally violated by theft. These are propositions too obvious to admit of argument or illustration, and once conceded to be just, it follows, as a necessary consequence, that the great original right to de- mand fugitives from justice, and the corresponding obligation to surrender them, extend, by the law of nations, and the principles from which it is derived, to cases of theft, as well as those of arson or perjury ; and if this be so, you cannot but be aware, that the practice of a few European na- tions in regard to its exercise, (admitting that it has been confined by them to certain classes of crimes,) observed per- haps from courtesy or convenience, from policy, or any other consideration whatsoever, cannot be otherwise than of the smallest possible moment to a state who is thrown back upon it, for the first time, for the protection of her domestic institu- tions, and the vindication of her violated laws. If, in- deed, Virginia has received nothing else in exchange for her sovereign attributes of war and negotiation, she will proclaim her right to the principle in all its original and fullest extent, notwithstanding, in the language of Grotius, it has not been insisted upon in most parts of Europe for some ages past, unless in cases of crimes that affect the state, or are of a very heinous and malignant nature. These nations, doubtless, had good reasons for dispensing with a rigorous compliance with the principle in every instance, and had a full right to do so ; Virginia, however, claiming but the same power of judging of the 4 20 expediency of giving up any portion of the right, deems it unwise, if she is dependent upon it alone for the pro- tection of the property of her citizens, to imitate their example, and announces her determination to insist upon it in all its natural strength and comprehensiveness. Let it be conceded, then, and I humbly apprehend it cannot justly be denied, that theft comes within the principle of the law of nations on the subject of surren- der — assuming always that there is such a one — and no- thing more is required, as I shall presently show, to make out the case of Virginia. But I will not stop here. I go farther, and contend, that if it is admitted that there is a principle of the law of nations, recognized and sanctioned by the civilized world^ which imposes a perfect obligation upon sovereign states to surrender, in any case, criminals seeking refuge in their terri- tories from the justice of other states, that this principle is not confined to any particular crimes, such as murder, treason, robbery, or theft, or any others of the same grade, but that it extends to every species of offence, whether great or small, heinous or venial, punishable by fine, by imprisonment, or by damages in a civil action, and that the right or rule, as it may be called, as laid down by writers on national law^ has no reference whatsoever to the grade of the offence, or the penal code of the government in whose limits the crimi- nal may be found. Arguing, a priori, of the principle, this would seem to be the necessary conclusion ; for, giving it any origin you please, whether the duty of a government to prevent its subjects from annoying another government, or its citizens; the justice of compelling him to repair an in- jury who has committed it ; the obligation under which every man is placed to obey the laws of the country into which he is permitted to enter ; the desire to perpetuate peace, and encourage commercial intercourse, or a gene- ral disposition among nations to keep down crime, and protect the enjoyment of property, and thus preserve the basis of all social institutions, it is utterly impossible to see any good reason which would render its limitation' to any particular character of offences either necessary 27 or desirable. Arguing, too, of its extent, with reference 40 the dignity and sovereignty of nations, one finds as little cause for restricting it to crimes of any specific atro- city ; all genuine principles, pertaining to both considera- tions, being quite as much implicated in the surrender of criminals charged with aggravated crimes, as they would be in the case of those charged with venial ofiences. When we come to the books which profess to treat of the principle, and of the construction which nations have placed upon it, we findthese anticipations, as to its character and extent, fully sus- tained by their language. Your Excellency will in vain hunt, I apprehend, in the pages of Vattel, Grotius, Bnrlamaqui, or Putfendorf, for any authority, in the absence of treaty or usage in the particular case, for the restriction of the principle to crimes of great atrocity, or those deeply affect- ing the public safety. It will be invariably found, let me venture to say, that when these great jurists speak of this principle, although they do not expressly declare in so many words that it applied originally to every species of offence for which a man can be punished, and yet remains unchanged by the practice of nations, they yet make use of language from which such conclusions are matters of necessary de- duction. In the language of Chief Justice Reid, before quoted, " the general right is acknowledged" by them, and when- ever they speak of limitation, it is only as historians narra- ting the practice of some European nation on the subject for some ages past. " And since no sovereign," says Vattel, " should permit his subjects to disturb those of another, or " do them an injury, much less audaciously offend foreign " powers, it is his duty to compel the offender to repair the " damage or injury, if possible, or to punish him exempla- " rily, or, according to the case and circumstances, to deli.- '•' ver him over to the justice of the offended state. Grotius' " language, to quote it again, is, " This right of demand- •" *"& fugitive delinquents to punishment, has not been in- -" sisted upon, in most parts of Europe, for some ages past, 28 .^' unless in crimes against the state, and those of very hei- *' nous and malignant nature ; as for lesser faults it has been " the custom to connive at them, unless otherwise agreed " upon by treaty." Burlamaqui repeats this language almost in the same words, and attributes like opinions to Puffen- dorf.* Now, when these expressions of the great foun- ders of national law are closely considered, I really do not discover, if your Excellency please, any one phrase that authorizes you to deny that the principle of the law of nations on the subject of the surrender of fugitives from justice, if conceded to exist at all, applies to all cases of offences whatsoever ; or to affirm, " that it has never been *' extended in practice to other offences than those of an M atrocious or heinous description, and such as were recog- " nized to be of that character by the nation upon whom the " demand is made." The two positions, with all imaginable respect, strike me, may it please your Excellency, without shadow of pretext or plausibility. With Vattel the obligation flows from the duty of a government to see that its citizens do not molest or injure the citizens of other governments, or the governments themselves, and consequently must apply to every case in which an injury or annoyance has been in- flicted. Grotius says nothing of the origin of the right or obli- gation, but speaks of it as an acknowledged thing, and only says it has not been insisted upon for some ages past, in some parts of Europe, in cases of the lesser offences. He gives no intimation that this has proceeded from any doubt entertained that the principle does not extend to such cases, but, on the contrary, he leaves jou, by his language, under a violent presumption that it has arisen purely from considera- tions of convenience. It resolves itself, then, into a mere matter of practice of a few European nations, in relation to ^he minor offences. Let us see, then, what this practice has been, and to 2 Burlama(iui, p. 4, sec. 23, et seq. 29 begin, let me ask your Excellency if you know of any two nations in Europe whose acts on this subject have been regulated exclusively with reference to the princi- ples of national law, who have conceded the right to demand in cases of the more heinous crimes, and denied it in those of a mitigated character. We have just seen Eng- land, France and Spain, at different periods of their history, successively disclaiming any such principle as obligatory upon them, even in cases of the crime which stands at the head of your list ; and we find treaties on the subject of surrender of fugitives from justice as early as 1174, between Scotland and England ; afterwards, in 1308, between the latter power and France, and in 1378, between France and the kingdom of Savoy. Here we have then the four.-chief and most enlightened powers of Europe — France, England, Scotland and Spain — each respectively repudiating any such principles of the law of nations as binding upon them in their sove- reign capacities, and refusing to be governed by them, and making their rights and obligations on such subjects a mat- ter of constant treaty stipulation. It is not from the exam- ple of these nations, then, clearly, that you can derive pre- cedents or authority for matters of practice under the prin- ciple alone. To what others, then, are we to look 7 I hum- bly apprehend your Excellency will find but few, if any, and certainly not so large a number as would justify you, or any future commentator on the law of nations, in saying that the original principle had been at all modified or abridged by the modern practice of nations. The language of Vattel on this subject, in which he speaks of the letter rogatory as an institution which prevails in Switzerland, I have before quoted ;* upon it, by way of commentary, occurs the following passage in your letter to the Governor of Vir- ginia of October 24th, 1839 :t '• The name of letters rogatory, " and the remark that this is an admirable institution, and " that it is in force throughout all Switzerland, are sufficient • Vide p. 19. t Vide Appendix. 30 " to show, without other proof, that the usage or practice here " described by the learned author, is not an enlargement of " the law of nations, but that it is a municipal institution " established by the contract of federation between the " Swiss cantons, and that the law of nations is thus super- " seded by a written, law, or, as we should describe it, a con- " stitution." Now, I venture to affirm, with all proper re- spect, that your Excellency has here totally misconceived the meaning of Vattel, or, apprehending it, that you have drawn unauthorized inferences from it. Your evident purpose is to show, that without letters rogatory, govern- ments have no right, by the principles or practice of the law of nations, to insist upon the surrender of fugitives from justice in cas(^ of common offences, and that as this is an institution peculiar to Switzerland, and established by its contract of federation, it cannot serve as a precedent or au- thority to other states. I humbly apprehend the real state of the facts of the case to be wholly opposed to the tendency of this reasoning. Switzerland, like England, France and Spain, recognizes no perfect obligation upon nations, by the law of nations, to surrender fugitives from justice, whether in cases of crimes of great atrocity or any others ; and this very custom of asking for the delivery of fugitives by letters rogatory, furnishes to my mind the most conclusive evi- dence of the fact, and I think would have done to your Excel- lency's, if you had reflected upon the obvious etymological meaning of the phrase, and looked into the books which treat of its nature. " Commission rogatory, or letter rogatory," says De Ferriere, (I translate from the French,) " is a com- " mission issued by one magistrate, and addressed to another " who is independent of him, by which he requests him to " execute, within his jurisdiction, some mandate, decree, or "order of justice, or to inform himself of some fact, or toregis- " ter some act, or do some other thing. If the judge who issues " the commission happens to be the sovereign of the other, " the commission will 710I be a letter j-ogatonj, but it will be oi " despatched in the form of a decree, and these sorts of " commission are called letters of command, or letters com- " mandatory,"* The term rogatory, thus we see, imports a request, addressed to the justice or friendship of the party applied to, and repudiates necessarily all idea of a right, in contradistinction to the requisition or demand which an acknowledged right would authorize, and which our consti- tutional provision meditates. Letters rogatory, in a word, re- semble exactly the commissions which issue every day from our courts to take testimony in other states, which the persons whom it may be addressed are at liberty to disregard or not as they think proper, and they have been adopted expressly to prevent any prejudice to the jurisdiction of the government surrendering. They then afford conclusive proof of what, I have stated in reference to the views which prevail in Switzerland on the subject of these supposed prin- ciples in the law of nations on the subject of the sur- render of fugitives from justice. There is not a doubt upon the subject ; but I will put the matter beyond doubt, and the confirmation is a very remarkable one, by again quoting the language of a celebrated jurist, alluded to in a foregoing part of this pamphlet : " Moribus nihilominus (non tamen " saxonices) totius fere christianismi nixi ex humantate non " sunt admissse remissiones quo casu remittenti magistratui " cavendum per literas reversoriales ne actus jurisdictioni " remittentis ullum pariat prejudicium."t Here we have the testimony of one of the most distinguished authors of Europe, to the effect that by the customs of almost all Christendom, the surrender, or the principle of the surrender of criminals, is not admitted, except as a matter of favor or humanity, and when done it is by means of letters roga- tory, that there may be no prejudice to the l8cal jurisdiction ! ! * De Perriere. Dictionaire de Droit et de Pratique, article Lettres Rogatoires, Tom. 1. 2. New Paris edition.] t Page 6. Voetde Statutis. Your Excellency will scarcely contend, I presume, that Switzerland alone, of all the countries of Europe, is not in- cluded in a declaration thus comprehensive, and without qualification, to which Saxony is the only alleged exception. If not, then, here is conclusive confirmation of what I ventured to affirm a few lines back, that the principle of the surrender of the fut(itives .from justice was not received at all in •Switzerland, and that the custom of letters rogatory had its origin in the fact. The oppugnancy of this to any thing your Excellency may have said may not be apparent at first sight, for you do not go so far as to declare that this principle does prevail in Switzerland, but you would leave us to infer that it does, and that this institution called letters rogatory, was established by the articles of confederation between the cantons for the express purpose of supplying its absence in the cases of minor offences, and thus making it complete, and to extend to all classes of offences. In this view of the matter, the custom, so far from being evidence of the practice of nations under the principle, in relation to the lesser offences, as the Lieutenant Governor of Virginia would fain have persuaded you it was, goes, in truth, to furnish the strongest possible testimony of what you contend for, the limitation of the principle to crimes of great atrocity, or those deeply affecting the public safety. It is for this reason that I have deemed it a matter of some importance to the argu- ment to arrive at the facts of the case as relates to Switzerland, and to see clearly the origin of letters rogatory, and the object of their establishment, I have before alluded to your conclu- sion that it is a municipal institution, established by the con- tract of federation between the different cantons, and must now be permitted to asft your Excellency for the proof of the fact. The name itself, you say, and the remark that Vattel makes, that it is an admirable institution, and that it is in force throughout Switzerland, are of themselves, suf- ficient to convince you of it. Now, sir, I will not 33 undertake to contradict you on this subject, but I venture to affirm that your Excellency will in vain hunt for any autho- rity for the declaration in any contract of federation now or ever in existence between the cantons of Switzerland. Two writers of eminent consideration on matters of this country say, that there is no one single treaty or compact between all the cantons thereof, in their joint and several capacities as equal members of one great federative league, and that the only constitution truly national which Switzer- land knows, is that of a federal army, organized in 1688 between the cantons and some associates of the league. The treaties which regulate the relations of the cantons with each other are as numerous as the cantons themselves, who are sovereign independent states, making war and peace, without the slightest reference to the national Diet.* If these views, then, of the meaning of letters rogatory^ their object and origin, is correct, the example of Swit- zerland proves nothing in relation to the original extent of the principle of surrender of fugitives from justice by the law of nations, but becomes highly important as establishing the usages of an enlightened, people, adopted from considerations of policy, propriety, justice, and good feeling, on a subject of vast importance to the harmonious intercourse of foreign states; and Yattel evidently designed, in its introduction, that it should, be so considered. It certainly is not an enlargement of the law of nations^ as you well say and I very much question, with all due respect, whether any one would say it was; nor does it, as I have intimated before, furnish evidence of what I cannot but think you would wish us to believe it does, the origina,l * La seule constitution vraiment nationale que nous connaissons c'est J'etafi d'une armee confederale regie en 1688, entre les cantons et dcs quelques associea dela Hgue. Dictionnaire de la Suisse, Corps Helvetique, vol. 1, p. 71, Planta's Switzerland, vol. ii. p. 291. 5 34 limitation of tlie principle of surrender to crimes of great atrocity ; much less is it a municipal institution established by the contract of federation between the Swiss cantons to supply the original defects of such principle in matters of the lesser offences. It is nothing more or less than a prac- tical recognition of the expediency and justice of establish- ing between the cantons a right to demand, and an obligation ^ to surrender fugitives from justice, in every instance of violation of municipal law ; the custom in the first cases allowed from the considerations just mentioned, and after- wards in the lapse of time, and by continued sanction, ac- quiring the force of statute regulations, like those usages which at different periods have imperceptibly been blended with, and become a part of the common law of England. Your Excel- lency is not perhaps aware, that this institution, or custom of letters rogatory, is not peculiar to Switzerland, and the pre- sumption, then, for it can be nothing more, even as you express it, that it has grown out of a constitutional provision in the ar- ticles of league between the cantons, is deprived of even the appearance of probability. It obtains, says the celebrated wri- ter, so often before quoted in the United Provinces, " Id quod (speaking of the custom of letters rogatory) etiam in nostris " provinciis unitis est receptum,"* and doubtless also exists in the Germanic confederation, and many other states, which have, in the language of Vattel, more intimate relations of friendship and good neighborhood. The truth is, sir, and I think your Excellency will not, upon reflection, contradict it, there is perhaps not a nation in Europe whose practice upon this subject has been regulated upon acknowledgment of, and by reference alone to the original abstract principle of the right and obligation to surrender ; nor among that num- ber who have made treaties with each other, or between whom a custom has sprung up in the course of time, in the absence • VoetdeSiai. §11, cli. 1, 4. G. 297. 35 of treaties, is there any general established rule having the force of universal sanction ; and you will permit me to add it is unphilosophical to look for such a one. Every nation will judge for itself in such doubtful matters ; be regulated exclusively by regard for her interests in the construction of the law, and in the language of Chief Justice Reid, " en- " force it or not, according as good policy or sound discre-- " tion shall require." Should she acknowledge the existence of the principle, she will not consent to its observance in every or any instance, if it conflict with her peculiar interests or views ; should she deny it, she will not the less admit the expediency of establishing such a rule, if it comport with them, and she will either sanction a treaty stipulation to this eftect, or she will, from time to time, acquiesce in the practical attempts to accomplish it by usage. Permit me now, sir, briefly to review your arguments and positions on this part of the subject, and to recapitulate what I have said in answer to them. You set out with the pro- position that the object of the provision in our Constitution now in question, was to establish the principles of the law of nations on the subject of surrender of fugitives from jus- tice ; that it must consequently be construed with reference to such principles ; that it can extend to no cases not reached by them, and that as such principles, and the practice of nations under them, have never applied to other than atrocious crimes, or those deeply affecting the public safety, the provision in question could not be said to possess any greater comprehension ; and as the case presented by the Ex- ecutive of Virginia was not one of this character, it could not, consequently, be said to come within its meaning, and that your Excellency would be, therefore^ violating the Con- stitution to yield to the demand. In opposition to these views I have endeavored to show, and I hope not unsuc- cessfully, that no such principle as a perfect right and bind- ing obligation on nations to surrender fugitives from justice exists in the law of nations ; that it has been repudiated in practice by three of the most powerful and enlightened 36 empires of Europe^ and if we may credit Voet, by almost every country in Christendom ; denied by the largest number of writers on national law, rejected by the highest tribunals of our states, and disclaimed by our government in the only cases in which it has ever come before it for consideration ; and that it is preposterous, therefore, to suppose that our fore- fathers designed to incorporate any such apochryphal prin- ciple into our Constitution as a rule for the regulation of the international rights of the states. I have further endea- vored to show, however, that if these national rights and obligations be deemed to exist, that they are as broad and comprehensive as the duties, or sense of justice, or consider- ations of policy in which they had their origin, and that they extend, according to Vattel, Grotius, Burlamaqui, and other most celebrated writers, to every species of offence, whether venial or otherwise, against the laws of a state ; that they are not limited to crimes, nor any particular class of crimes, nor have they any connection with the penal code of the state to which the criminal flies. I have further endeavored to show, that this right, if it ever existed, has not been in the slightest degree abridged, modified or affected by the prac- tice of nations, and that no one writer will be found to say that it has ; and that it now exists as extended and uncir- climscribed as it did a thousand years ago. That the prac- tice of few, if any, European nations, has been regulated by reference alone to- the original principle ; that it has been almost invariably the subject of treaty stipulation, and that where a custom has originated it has been rather from con- siderations of expediency and policy, than from any obe- dience to the supposed obligation in the law of nations ; that the customs of the same natrons have been different at dif- ferent times on the subject, and that wherever the right has been limited in practice, it has not been from any doubt of its extension to other cases, but purely from motives of con- venience, and that even though it had not, the custom has not prevailed po a sufficient extent, or among a sufficient 37 number of nations, to have the effect of modifying the cha- racter of the original principle, and to make a binding case of practice — in a word, that there has been no universal, or even general usage on the subject, and that, conse- quently, it remains where it was, and what it was, when governments were first formed, and national laws sprang into existence, to keep harmony in a jarring world. Now,sir,if in this recapitulation I have been just, and I have claimed nothing that I have not accomplished, I have disposed of the question as far as it is affected by the law of nations. Like Governor Gilmer,however, I have ever been of the opinion that there was no connection between the two subjects, and in what I have written so far, I have been influenced alone by the possible views of others. It is a question, as he says, purely of constitutional construction, and to be determined, as all such questions are, by reference to the provision itself, and the intention of those who framed it. The latter may some- times be gathered from contemporaneous debate, and in de- fault of this, is fairly deducible from the condition of the country at the time of the adoption of the provision, the pro- fessed object of its introduction, and many other circum- stances. Resorting first to the most obvious means of interpre- tation, let us look at the language of the clause in question. It provides for the surrender of all fugitives from justice charged with the commission of " treason, felony, or other " crime." Now, the first consideration that presents itself to the mind, when looking at this clause in reference to the requisition of the Executive of Virginia, is, whether the act charged constitutes a crime, and to determine this I know of no other method than to have recourse to the writers on criminal law, or, if you please, to the com- mon lexicographers of the language, to see what a crime is. Christian says, that the word crime has no technical meaning in the law of England, and that it seems, when it has reference to positive law, to comprehend all those acts 38 xvhich subject the offender to punishment.* By Blackstone, Jacob, and other writers, a crime is defined " to be an act " committed or omitted in violation of a pubHc law, either " forbidding or commanding it."t The term, Jacob goes on to say, " may be considered, and is in fact a genus which con- " tains under it a great number of species, almost as various " in their names as human actions." By the laws of New- York it is synonymous with offence, and is defined to be any offence for which criminal punishment may by law be in- flicted.]: Crime being, then, found to mean any act in viola- tion of pubhc law, or any offence for which criminal punish- ment may by law be inflicted, the next inquiry that presents itself is, what is the law, or body of laws, or public law, whose violation is to constitute a crime under this provision of our Constitution. The public law of England, says your Excellency, and the laws of the civilized world. This is in- deed strange ! The public law of England to determine what is to constitute a crime as between the different sove- reign independent states of the American confederacy. To little purpose have we become an independent people if, before we can punish a criminal who violates the laws of one of these sovereign states, and flees to another for protection, we are obliged to show that he has offended some law of the British empire. There is scarcely a state of the large number that constitute this Union, New- York not excepted, that has not taken the pains to define expressly the meaning of every word of doubtful import in her penal and civil code, and it would be strange indeed if the framers of our Constitution should have been less wise and provident, and alone, of all the legislators of our country, have left those for whom they made laws under the necessity of going to a foreign state to ascer- tain what they mean when thay speak of a crime. If, ♦ Chitty's Blackstone, vol. 4, p. 6, note 5. t Black, vol. 4, p. 5, and Jacob's Law Dictionary, woriT Misdemeanors. : Rev. Stat. vol. 2, p. 587. 39 indeed, in determining the meaning of the word felony, your Excellency were to contend for the propriety of a re- ference to the common law of England, the reason wonld be intelligible, if not plausible, for felony, by this law, has a technical signification ; but I am utterly unable to conjecture any reason ^ for such application in the case of the word crime. The clause in the Constitution contains not the slightest allusion to this body of laws ; on the contrary, as you yourself say, the description is effected rather by a reference to the laws of the civilized world, than to those of any particular country. Your Excellency seems to be aware of the force of this fact, and its utter repugnancy to other of your conclusions, and you endeavor to obviate its effects by complacently assuming that this was done by the convention with a view to avoid the appearance of tech- nicality ! ! " If, then," says your Excellency, after remarking that by the common law of England one man could not have property in another, " we are to look to the common law '' for an exposition of the meaning of the convention, (in the " clause in question,) it would seem to be quite clear, that '' the provision in question was never intended to embrace ^' such a case as that presented by your predecessor, (Gover- " nor Hopkins.) This view of the subject is substantially " the same taken in my former communication, where I re- " ferred to the universal laivs of the civilized loorld as " affording the means of determining the kind of offences '' intended to be included in the constitutional provision. " The common law of England may he said to define those " offences which the laws of the civilized world recognize as " deserving punishment at all times, and at all countries. " A desire to avoid the appearance of technicality induced a " description of these crimes by reference to the laws of the '' civilized world, rather than to the system of a particular " country, although that system is acknowledged by us to be " the most perfect which has existed among men."* ♦ Vide Appendix. 40 However willinlv aO^ • I, '> V' V