of another state shall be exempted from arrest, trial and punishment, in the state adopting such code, however different its enactments may be from those existing in their own state. The true question is, whether the state of which they are citizens, is under a constitutional obligation to surrender its citizens to be carried to the offended state, and there tried for offences unknown to the laws of their own state. I believe 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, includes only those cases in which the acts constituting the offence charged are recognized by the universal law of all civilized countries."
Chancellor Kent has expressed the opinion, that those crimes "which strike deeply at the rights of property 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 fugitive protected, why not compound larceny, as burglary and robbery—and why not forgery and arson? They are all equally invasions of the rights of property." This language is used by the chancellor when discussing the propriety of delivering up one charged with having committed a theft in a foreign state.[1] And all can see, that it applies with increased force to a crime which strikes deeply at the rights of property in the south, is inconsistent with the harmony of intercourse between citizens of the northern and southern states, and tends to impair the permanence of the Union and the safety of the general government. Such a crime comes within the mischief which the Constitution of the United States designed to prevent, and the remedy should be extended to it when the terms that are employed are abundantly sufficient to embrace it.
The Governor of New York, after stating that the obligation to surrender under the law of nations, includes only those cases in which the acts constituting the offence charged are recognized by the universal law of all civilized countries, proceeds as follows:
"I think it is also well understood, that the object of the constitutional provision in question, was to recognize and establish this principle in the mutual relations of the states, as independent, equal and sovereign communities. As they could form no treaties between themselves, it was necessarily engrafted in the constitution. I cannot doubt that this construction is just. Civil liberty would be very imperfectly secured in any country, whose government was bound to surrender its citizens to be tried and condemned in a foreign jurisdiction, for acts not prohibited by its own laws. The principle, if adopted, would virtually extend the legislation of a state beyond its own territory and over the citizens of another state, and acts which the policy and habits of one state may lead its legislature to punish as felony, must be considered of that heinous character in another state for certain purposes, while for all other purposes they would be regarded only as violations of moral law. In some of the states of the Union, adultery is made a felony; in another, the being the father of an illegitimate child is made a crime; and in another, marriage without license or other formalities is penal. To admit the principle that violations of these and similar laws, which are in their character mere municipal regulations, adapted to the policy of a particular community, are "felonies" and "crimes," within the meaning of the constitution, would involve the most serious consequences, by imposing obligations which it would be impossible to execute. It is evident there must be some limit to the description of crimes meant by the constitution; and that which I have applied in this instance seems to me to give full and fair scope to the provision, and at the same time preserve the right of exclusive legislation to each state over persons confessedly within its jurisdiction, while it preserves that harmony which is so essential to our mutual interest."
It must in candor be acknowledged that there is a good deal of force in some of these observations; and that there is difficulty in holding the term crime, in the constitution, as synonymous with offence. But there is no difficulty at all in establishing, that, when the Governor of New York takes the ground that he will not deliver up a person charged in another state with a crime, unless the fact charged be recognized as an offence by the laws of all civilized countries, and would if committed in New York be an offence according to the laws of that state, he takes ground which is wholly untenable, according to the decision of the supreme court of his own state in Clark's case, and sets up a new principle, entirely different from that which was acted on by his predecessor, Governor Throop.
By the laws of Virginia, if any officer of public trust in the commonwealth, or any officer or director of any bank chartered by the commonwealth, shall embezzle, or fraudulently convert to his use, any sum of money, bank note, bill, check, bond or other security or facility placed under his care or management, by virtue of his office, or place, the person so offending is guilty of felony, and, upon conviction thereof, is to be sentenced to imprisonment in the public jail and penitentiary house, for a term not less than three nor more than ten years. Scss. acts, 1819-20, p. 19, ch. 32, sec. 2. Though the act thus made felony by the laws of Virginia, was by the common law of England only a breach of trust and not punishable criminally, a person charged in Virginia with this offence, who should flee from justice and be found in another state, would, according to governor Throop and the supreme court of New York, be delivered up "to the
- ↑ Washburn's case: 4 Johns. ch. rep. 113.
