general of the State, who reported that Lago should not be surrendered, on the ground that the offence charged was not "treason," or "felony," or any other crime under the laws of Ohio, or by the common law. He said that the question was presented, "Whether, under the Federal Constitution, one State is under an obligation to surrender its citizens or residents to any other State, on the charge that they have committed an offence not known to the laws of the former, nor affecting the public safety, nor regarded as malum in se by the general judgment and conscience of civilized nations. . . . The right rule, in my opinion, is that which holds the power to be limited to such acts as constitute either treason or felony by the common law, as that stood when the Constitution was adopted, or which are regarded as crimes by the usages and laws of all civilized nations." The Supreme Court refused the writ of mandamus on the ground that the governor of a State could not in that manner be coerced in the performance of his duty under the constitutional provision; but the opinion in the case, delivered by Chief Justice Taney, and representing the unanimous judgment of the court, has been considered as substantially equivalent in weight to a judicial decision. Chief Justice Taney said that the words "treason, felony, or other crime," in their plain and obvious import, as well as in their legal and technical sense, embraced every act forbidden and made punishable by the State in which it was committed.

"They were," he said, "introduced for the purpose of guarding against any restriction of the word 'crime,' and to prevent this provision from being construed by the rules and usages of independent nations in compacts for delivering up fugitives from justice. According to these usages, even where they admitted the obligation to deliver the fugitive, persons who fled on account of political offences were almost always excepted, and the nation upon which the demand is made also uniformly claims and exercises a discretion in weighing the evidence of the crime and the character of the offence. . . . And as the States of this Union, although united as one nation for certain specified purposes, are yet, so far as concerns their internal government, separate sovereignties, independent of each other, it was obviously deemed necessary to show, by the

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terms used, that this compact was not to be regarded or construed as an ordinary treaty for extradition between nations altogether independent of each other, but was intended to embrace political offences against the sovereignty of the State, as well as all other crimes. And as treason was also a felony' (4 Bl. Com. 94), it was necessary to insert those words, to show, in language that could not be mistaken, that political offenders were included in it ..; for it is manifest that the statesmen who framed the Constitution were fully sensible that, from the complex character of the government, it must fail, unless the States mutually supported each other and the General Government; and that nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a State, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the State, to repeat the offence as soon as another opportunity offered."

Chief Justice Taney also referred to the Articles of Confederation between the New England colonies of 1643,1 and to the Articles of Confederation,2 as showing the policy and purpose of the clause, and said:

"The argument on behalf of the governor of Ohio, which insists upon excluding from this clause new offences created by a statute of the State, and growing out of its local institutions, and which are not admitted to be offences in the State where the fugitive is found, nor so regarded by the general usage of civilized nations, would render the clause useless for any practical purpose. For where can the line of division be drawn with anything like certainty? Who is to mark it? The governor of the demanding State would probably draw one line, and the governor of the other State another. And, if they differed, who is to decide between them? ... Looking, therefore, to the words of the Constitution, to the obvious policy and necessity of this provision to preserve harmony between States, and order and law within their respective borders, and to its early adoption by the colonies and then by the confederated States, whose mutual interest it was to give each other aid and support whenever it was needed, the conclusion is irresistible, that this compact engrafted in the Constitution included, and was intended to include, every offence made punishable by the 1 Supra, § 517. 2 Supra, § 519.

law of the State in which it was committed, and that it gives the right to the executive authority of the State to demand the fugitive from the executive authority of the State in which he is found; that the right given to 'demand' implies that it is an absolute right; and it follows that there must be a correlative obligation to deliver, without any reference to the character of the crime charged, or to the policy or laws of the State to which the fugitive has fled."

The opinion of Chief Justice Taney has recently been affirmed by the Supreme Court of the United States in Ex parte Reggel, in which the court said that the words "treason, felony, or other crime," included "every offence against the laws of the demanding State, without exception as to the nature of the crime." The theory of the attorney-general of Ohio as stated in the case of Kentucky v. Denison has not been sanctioned by the courts of that State, which have held that it is only necessary that the acts should be made criminal by the laws of the demanding State.2

§ 523. Views of Governor Seward; Virginia Case. The opinion of the attorney-general of Ohio was in accordance with the position taken by Mr. Seward when governor of New York. On August 29, 1839, Lieutenant-Governor Hopkins of Virginia sent to Governor Seward, by a duly authorized agent, a requisition, accompanied with an affidavit, for the surrender of three men who were alleged to have feloniously stolen and taken away a negro slave from Virginia. On the 16th of the following September Governor Seward replied, declining to grant the surrender, on the ground, among others, that the offence not being such as was generally recognized by civilized states, and not being a crime by the laws of New York, did not come within the constitutional provision. In his annual

1 114 U. S. 642.

2 Wilcox v. Nolze, 34 Ohio St. 520; Ex parte Sheldon, Id. 319. In the latter case the court held that under the provisions of 75 Ohio L. 654, § 5, when it appears that a fugitive stands charged in the demanding State with a certain crime, the printed statutes of such State, purporting to be published by its authority, may be received by the governor and by the courts to show that the offence charged is made criminal by the laws there.

8 For correspondence, see House Journal and Documents of Virginia, 1839–40, Doc. 1, pp. 31-43.

message to the legislature of New York in 1840, Governor Seward defined his position as follows:

"A requisition was made upon me in July last, by the executive of Virginia, for the delivery of three persons as fugitives from justice, charged with having feloniously stolen a negro slave in that State. I declined to comply with the requisition, upon the grounds that the right to demand, and the reciprocal obligation to surrender, fugitives from justice, between sovereign and independent nations, as defined by the law of nations, included only those cases in which the acts constituting the offence charged were recognized as crimes by the universal laws of all civilized countries; that the object of the provision contained in the Constitution of the United States, authorizing the demand and surrender of fugitives charged with treason, felony, or other crime, was to recognize and establish this principle of the law of nations in the mutual relations of the States as independent, equal, and sovereign communities; that the acts charged upon the persons demanded were not recognized as criminal by the laws of this State, or by the universal laws of all civilized countries; and that consequently the case did not fall within the provision of the Constitution of the United States."1

§ 524. Views held in Virginia. —The correspondence with Governor Seward was transmitted by the governor of Virginia to the General Assembly of that State, and was referred to a committee, who, on March 17, 1840, made a report in which they reviewed the subject with marked ability, and submitted a series of resolutions which were adopted. These resolutions were to the effect:

1. That the reasons assigned by the governor of New York for his course were wholly unsatisfactory, and his refusal to comply with the demand of the executive of Virginia a palpable and dangerous violation of the Constitution and laws of the United States. 2. That that course could not be acquiesced in, and, if persisted in and sanctioned by the State of New York, it would become the solemn duty of Virginia to take measures for the protection of the property of her citizens. 3. That the governor be requested to renew his cor

1 2 Seward's Works, 221; ed. 1853, N. Y.

2 House Journal and Documents of Virginia, 1839-40, Doc. 1, pp. 31-43.

respondence with the executive of New York, requesting him to review his action and to urge the consideration of the subject on the legislature of his State. 4. That the governor of Virginia be requested to open correspondence with the executive of each of the slaveholding States, requesting their cooperation in any necessary and proper measure of redress which Virginia might be forced to adopt. 5. That the governor of Virginia be requested to forward a copy of the resolutions to the executive of each State of the Union, with the request that they be laid before their respective legislatures.1

Pursuant to these resolutions, the correspondence with Governor Seward was renewed. But in a letter addressed to the governor of Virginia on November 9, 1840, Governor Seward affirmed the principles previously laid down by him, and said that he had lately refused an application from the governor of Pennsylvania for the surrender of a person for fornication, and one from the governor of New Hampshire for adultery. He contended that the rule he had laid down would not result in confusion, since "the principles of the moral law were written by the hand of God in the heart of man"; that "the light of Revelation brings them out in bolder relief," and that upon "examination of the common law, the civil law, and the statutes of all civilized and Christian countries, it will be found not only that murder, treason, arson, burglary, forgery, perjury, rape, incest, bigamy, and the like, 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." On March 26, 1841, Governor Seward transmitted to the legislature of New York certain resolutions of the legislature of Mississippi, condemnatory of his course.3 In so doing, he said that on February 24, 1841, he issued a requisition to the executive of Virginia for the surrender of one Curry, charged with forgery. The governor of Virginia, while admitting the regularity of

1 Acts of Assembly of Virginia, 1839-40, pp. 155-169.

2 2 Seward's Works (ed. 1853), 469, 478, 483.

3 Laws of Miss., 1841.

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