The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1842-03-15

Chancellor Kent, IN has Commentaries on Ameri-
Law, (lS36). appears to incline TO the opinion
Of Grotius and Vatel against that Of other eminent
juriss, that persons ccused Of crimes ought to be
delivered up to the country where they are accus
ed; and one ease appears to have been decided BY
himself when he held his Office in conformity with
that doctrine But the peculiar constitutions OF
federal government, comprehending many states
with various laws, renders any decision, hew'
ever respectable, Of less authority, till All the
p rticular provisions sxisting when Il was made,
arc fully eanvassed. But Justice Story. in his
more recent edition of the Conflict II Laws,
1871, concludes q discussion on this subject,
by citing the passage from Lord Coke, sdd'ng
that one Chief Justice in America has adhered TO
The same doctrine in very elaborate Judgment;
that the reasoning OF another Chief Justice. IN a
leading case, leads 10 the same conclssoc, and -
i stands indirectly confirmed by majority Of the
Judges Of the Supreme Court Of the United States,
in very recent case Of tho deepest interest"
The saYs Iinciplcs were held in the laws OF Eng
land, which, az he had already stated, had no ma
seeking refuge here could be given up to the cosn
try to which they belonged. He would, therefore,
venture respectfully to warn Secretaries OF State
not TO upon this most important principle Tor
they could not seize detain aliens seeking refuge
hero without subj citing themselves TO acticns for
damages for false imprisonment, and without fur
Their sHbjecting themselves to the still greater re-.
sponsibility Of perhaps charge Of murder; for II
a man attempted to seize euch an alien under such
authority he might re.it, and il in resisting bis
death snsued, these who ordered his arrest and de-
t. nton would be liable TO be tried Tor murder.
He Lord Denman)iully eoncurred with his noble
friend Lo Brosgham in thinking that it would
be most desirable that some law should exist be-
tween friendly nations, by which persons belonging
to one, and convicted ofgrevcus crimes, and taking
shel.r in the other, mi ght be given mp but this
could take place only bstweennstons ga Oh Il which
the laws Of the other in the treatment OF
criminal offenders to be founded in strict justice.
For instance, America would refuse to give up
to England an Eng shman charged with forgery,
because America did not regard that AZ a capital
offence punishable with death, as the case until
ltelv 10 England, and could not, therefore, approve
e our system OF punshmen mt in that respect There
were, besides, other circumstances which would
rendtr it almost impossible for England and Ameri-
ca to agree to some reciprocal municipal law the
subject Of criminal offenders, the subjects
either, seeking refuge in the oosntry Of
the other. For instance, there was slavery.
which was recognized by the municira law Of
some Of the States, and, still verse, the slave
trade was recognised in others. Happily both
were abolished in England and her colonies, and
however desirable such areciprooal law as he had
referred to might be, slavery aud the slave trade
would present insur mountable obstacles to it's adop
ton. He hoped, however, that we should never
as policemen gaoers to those who sought refuge
on our shores As to the Persoas to whose case
this motion referred he would say, that he was glad
to fad two hundred fellow men rescuing hem
respect to the particular moi its OF the Of the
Creole, he would not at that time in any ~ay touch
| on them, because it was possible the case might
yet como for trial, evsu ia this country, ON the
ground of piracy. Ifit thoald, 1t would no doubt
DO dealt it'll according to justice On the general
question OF this Government not having the power
to deliver up those men, he repeated that he had
no doubt whatever. 81 ersai s.ylsifs elL stfca
their opinions byhs two soble and learnsd friends,
no should not have felt it necessary to address their
iordships, il had not been stated aud widely cir
culatcd, that he had, when Attorney General, ad-
,l.utH shouA hs hovNa IN
that they should be delivered up to those who had
| demanded them. Nothing could be more contrary
| to the fact than such statement. He had never
given any opinion Of the kind. On the contrary ne
mad held, that by the laws Of nations no Sta had
right TO demand from another the Surrender OF any
| OF its subjects who sought shelter in that other
| and that IN the Of England the municipal law
did not suthariz. or enable the executive to com.
| ply with any such demand. 1t was true, that an
Imperfect right, or what might be called the COM
| msncement of right, to make such a demand,
| might be acquired by treaty, but that would
| not justify the demand until the municipal law
| Of State provided the means for carrying the
| treaty into execution. Without such law there
was no authority for giving up refuge TO any
State. This laid down by all the important au
thorities The subjects amaDgst others, M Martin,
an emipent professor Of the University Of Gettn-
gen. laid il down that a sovereign or State could
punish foreigner for crime committed in his do
inions, or for an offence against his or its subject
in foreign country, bat he was not TO deliver up
the subj ct Of another sovereign or State even
after his conviction of 4 crime. To send crimi-
nals he adds, for trial from State to another
was never sought for except on the ground Of spe-
cial treaty, followed up BY the municipal laws; but
with respect TO foreign refugees, who had escaped
after conviction Of crime in their country, NO
State in which they sought refuge was bound or
had authority to execute punishment on tn, M AZ
to tie claim Of America Mr.. Wheaton, we believe,
| the American Minister at Berlin, had laid It down
that no sovereign State was bound except by spc-
cial contract to deliver up the subjects Of another
| cha ged with or convicted Of crime The converse
| Of such principle would be subversive OF all the
| rales of civilized States. For his Lord Camp.
bclps) own part he should like to sec some general
law enacted and held binding on all States, that
each should surrender to the demand Of the others
all persons charged with serious offences, except
political. This, however he feared, was rule or
law which il would be difficult to get all nations to
concur in. 49,
To show how cautious states should be in making
such concessions enc to- the other resiprocaiiy' he
would mention ease which occurred when he was
Attorney General A treaty had been agreed upon
between the state of New York and the province
of Canada, by which the Government of each
agreed reciproealIy to deliver up the citizens or
subjects Of the other against whom grand juries
had found bill, ard whs had sought refuge within
the territories of the other. 1t happened that
slave had escaped from his masrer at New York
and got 10 Canada. To facilitate his escape, he
rode horse Of his masters for part of the way.
bat tarned him back ON his reaching the froatier.
The authorities Of New York we'll knew that Gag.
land would not give up runaway slave, and that
such they could not claim under the treaty; they
therefore had bill Of indictment against MIN be.
fore New York grand Jury for stealing the horse,
though it clear the animus urandi was wantingl
Tho grand jury, however, found true bill against
him for the felony, and he was claimed under the
treaty. The governor, under such eircumstances,
refused to give him up until he had coasaked the
Government ID England. He Uord Campbel) was
consulted, aud gave it ~ his opinion that he man
ought NOT to be given mp, a. the true bill where NO
felony had been Committee, did not bring the case
within the treaty. The man was not given up, and
there the matter rested This, he repeated. showed
the necessity Of the greatest caation where reeipro
cal rights ofsurrender were granted between states
A. 10 The question about our delivcring up slaves
While We refused to recognize slavery, 10 was out
Of the question. No state had the right to make
any such claim upon u.s.. The slaves had sought
refuge in Portiea o. ,.e Dr,u . .errMory, and
AZ far as the principle went there wasnc difference
between the bahamas or Bermuda and Portsmouth