Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1840-01-11

that Mr. Caphart had any other understanding
that expectation than the utimat expressed IN the
note did not reach Auburn until the expiration OF hi
teen days Learned there from the public newspapers
that the recorder Of the city of New York had DIS
charged the accused upon writ of habeas corpus.
received no communication the subject from Mr. Cap
hart nor from the accused person on their BEHALF
and supposed the discharge had taken place upon the
ground that the requisiticn and affidavit were deemed
by the recorder insufficient to justify the detention OF
III, prisoners | inferred from Mr. Capharts silence
that he had abandoned the application or that he nc
ouicsced the decision of the recorder But for your
letter of the 30th August, should have remained IN
der this erroneous belief have made this statement
length because the circumstances unexplained were
calculated to induce belief your part that there
had been neglect in answering the demand contained
in the requisition
Your communication calls me now to consider the
application upon the papers they were originally
submitted to me.
With the most respectful Difference, still think that
the charge contained in the affidavit annexed 10 inc
requison is defective in substance, because II noes
not state the place nor the country nor even the State
Fin which the alleged felony was committed. Inc al
fdavit may be strictly true and yet the elonous tax
ing ayerred might have taken place IN Maryland or
even in this State. 1t cannot be said that the defect
ia supplied by the equstion, for the requison as
sumes only to recte from the affidavit, whereas
i, appears BY the annexed affidavit (Which IS hereby
certified auhentic) that Peter Johnson, Edward
Smith and Isaac Gansey tugitives from justice
pared to admit that if the requstion contained all the
necessary averments it would be safe TO overlook the
defects in the affidavit.
very cheerfully concede, however, upon more
careful perusa Of the paper that the averment tnat the
nceused are ssnow attached to the schooner Robert
Center at present in New York, is sufficient to sew
that they were this State at the time the requston
was issued.
do fear that you will consider my objections 70
the re1uisition and affidavit rs technical or
The power Of delivering gitives is one OF the ishes
importance and deeply concerns The LIBERTY ana secu
ry of citizens In such stataory requirements
and technical forms of proceeding are
against the arbitrary caprcioas exercise OF
authority.
But it il By no means my wish TO protract unneces-
sarly the correspondence upon this subject or to AVOID
decision upon the important principle It involves
beg leave therefore, to state most respectfully at I'D
hitting the affidavit to be sufficient IN form and SUD-
stance to charge the defendants with the crime OF steal
ing negro slave from his master IN the State OF 'g
MIA as defined by the laws of that State yet IN my OPP
MON the offence is not within the meaning of the Con
s,tution Of the l. S. The words employed in the Constr
;ation ",reason felony other crime are indeed very
comprehensive Ii has long been conceded that citizens
of the State upon which the requsltion IS made are la
BILE 70 be surrendered well citizens OF the State
making the demand and is further regarded as settled
that the discretion OF the executive IN making The de-
mand is unlimited while the executive upon whom il
is made has legal right to refuse compliance II the
offence charged is act Of t-eason, felony or other
WITHIN the meaning OF INe CONSTITUTION SaH
any state at its pleasure declare an act to be treason
felony or crime and thus bring II with:n the consttn
.iona provision confess that such does not seem to
me to be the proper construction Of the constitution
After due consideration, am Of opinion that the pro-
vision applies only to those acts which, if committed
within the jurisdiction of the State which the per
son accused found would be reasonable Ionous or
criminal By the laws Of that State.
do not question the constitutional right Of State
TO ma Ike such penal code ii shall deem necessary
Il. IL. ~, ot',
State shall be exempted from arrest trial and punish
inent in the State adopting such CODE however DIFF
ferent it's enactmens may be from those existing IN
their own State The true question is whether the
State Of which they citizens is under a constitn-
fona obligation TO surrender ITS citizens to be carried
10 the offended State and there tried for offences
known to the laws of their own State. believe the
right demand and the reciprocal obligation to sur
render fugtves from Justice between sovereign and
independent nations, defined by the aw Of nations,
include only those iii which the acts constituting
the offence charged recognized by the universal
law OF all civilized countries think 1t Is also well
understood that the object of the constitutional pro-
vision in question recognize and establish this
principle in the mutual relations of the States, IN
dependent, equal and sovereign communities As
they could form treaties bet themselves, 1t was
necessarily engraltrd in the Constitution. cannot
doubt that this construction 10 Just Civil liberty
would be very impertectly secured in any country
whose government bound to surrender it's citizens
10 be tried and condemned in foreign jurisdiction for
acts not prohibited By its own laws. The principle
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 pun
ish rs felony, must be considered of that heinous
character in another State for certain purposes, while
for all other purposes they would be regarded only a.
violations of moral law In of the States of the
Union adultery is made felony: in another, the be
Ing the father of egitmate child is made crime
and in another, marriage without license or othe
formalities is penal. To admit the principle, tina
violations of these and similar laws, which il
their character mere municipal regulations adapted
to the policy ola particular community, are "felones
and sscrmes'' within the meaning of the Constitu
tion would involve the most serious consequences b.
imposing obligations which IT would be impossible t
execute 1t is evident there must be some limit TO thu
description of sscrmcs meant by the Constitutions
and that which have applied in this instance seem
10 me to give full and fair scope TO the provision,
at the same time preserve the ght Of exclusive legs
lation 10 each State persons contessedy within
its jurisdiction, while it preserves that harmony who
is so essential to mutual interest.
The offence charged in the affidavit before is no
understood to be that of kidnapping person. by which
he was deprived of his liberty held in durcss sui
fsred personal wrong injustice but is understood
moan the taking of a slave considered property from
his owner II I am incorrect in this superstition, tn
vagueness and uncertainty Of the affidavit must eScus
nv error But think there can be controversy up
on this point. need not inform you Sir that there
no law Of this State which recognizes slavery, sta
tute which admits that can be the property Q
another or that one man can be stolen from another
On the other hand our Constitution and Laws abolish
slavery in every form The act charged in the atfda
Wit il it had been committed in this State, would no
contravene any statute nor is II necessary to inform
YOU tina, the common law, which is in force this Stat
when not abrogated by statne, does not recognise sa
ycry nor make the act of which the parties
ed in this case feionions or criminal.
Il results from this view of the subject that the Of
fence charged in the affidavit and specified in the
QUESTION is not felony crime within the mean
inc of the Constitutions and that waving all the defect
in the affidavit cannot surrender the supposed f,gi
tyes to be carried TO Virginia for trial under the statute
of that state. -
So far as my knowledge extends no State has Eve
admitted the constitutional obligation to surrender it
citizens to extend beyond the limits have mentioned
although demands have been made in cases similar t
the one under consideration. If entertained doubt
of the business of the views have expressed shoult
..stahsh nrccedent so fnll o