Cleveland morning leader. [volume] (Cleveland [Ohio]) 1854-1865, 1860-03-14

ney General of this State, to whom l submitted
the papers in the case, which have the honor
to transmit to you herewith. With sentiments
of high respect,
Your obedient servant,
90 W. DENNIS0N.
OPINION OF ATTORNEY GENERAL wOLCoTT.
OFFICE OF THE Atty GENERAL,
COLUMUs, o., March 7, 1860. 5
SIR-I have thoroughly considered the Re
QUESTIONS of the Governor of Virginia, made
upon you as Governor of Ohio, for the extradi-
ton Of Francis Merriam and Owen Brown,
which you have submitted for my opinion.
These cases are essentially alike-the charges
against each OF the persons substantially SINH
lar-the annexed documents Of the same gen.
eral import, and the requisiti0n as to each in
precisely the same form-so that the dispOsi
tion of one is in effect the disposition of the
other. To avoid the needless multiplication of
words, 1 shall herein consider only the Requi-
sition Of Francis Merriam.
This requisition begins with preamble re
citing that "whereas, it appears By the annexed
documents, which are hereby certified to be
authentic, that Francis Merriam is g fugitive
from Justice from this State (Yirginia) charged
with conspiring with slaves to rebel and make
insurrectOn, and for conspiring with certain
persons to induce slaves to rebel and make in
surrectiOn." And then proceeds in the ordinary
form to "demand of the executive authority of
the State of Ohio the said Francis Merriam as
q fugitive from justice, to be delivered to NJ.
johnson, who Is hereby appointed agent to
receive him on the part fthis commonwealth" I"
These are the parts of the requistion itself
material now to be noticed The only sd, Gus
ments annexed" ale ~ transcript Of certain
proceedings had before the Circuit Court of JEFF
ferson County, Virginia, from which it appears
that an indictment had been duly presented
against Merriam; (2) copy of that indictment
in which he is charged with the etfenses men
toned in the requlsitiOn; (3) an attestation by
Robert J. Brown, Clerk OF that Court, under
its seal, "thst the foregoing is true transcript
from" its records; and (4l the certificate of
John Kenney, "Judge Of the Twelfth Judicial
Circuit of Virginia, holding q special term OF
The Circuit Court of jefferson County," that
Robert ]. Brown is Clerk of that Court" and
that his said attestatlon is Undue iOrm."
Upon this state of case, question is made
concerning your power to issue wrTant for the
surrender of Merriam to the authorities of Vir.
ginia.
No enactment Of this State has clothed its
Governor with authority to surrender to anoth-
er State fugitives from its justice seeking refuge
here. Whatever power he may have in this be
half must be derived from the Constitution of
the United States, and the act of Congress
respecting fugitives from justice" approved the
18th Of February, l793-since these are the
only enactments, assuming to confer this au-
thority, which have force in Ohio. These are
so well known as to require no recital here
The act of Congress, 1t is to be noticed, does
not seek to enlarge thu power of extraditiOn be-
yo-Al thS limits inIEUsoe JH t by tho OonstituN
ton, and any attempt at such enlargement
would be utterly void. Recognizing those lin
itations, it simply defines the mode in which
the power, as established by the Constitution,
shall be executed This power, both as to the
condition of its existence, and the manner of its
exercise, is of the most special and limited ma.
ture. By their very terms, no person can be
removed from one State to another, in virtue of
these Constitutional and statutory provisions,
except on the simultaneous occurrence of three
distinct conditions.
l. He must have been charged in another
State, by indictment or affidavit, with the com
mission there Of "treasOn, felony or other
crime"
2 He must have fed from that State to escape
its justice, and
3. Demand for his surrender-accompanie
by an authentic copy Of the indictment or aft
davit on which the demand is predieated-must
have been made of the executive authority of
the State to which he fed, by the executive au-
thority of the State from which the flight was
made.
When these do conouIrently happen, the
power to deliver results, and must be executed.
Each, however, is iD the nature of precedent
condition; SO that the absence of any one of
them is not less fatal than the absence of all.
These, and not less than these, are the limi-
tations with which the right of extradition has
been carefully hedged about by the Constitu-
ton and the act of Congress. In the verv spirit
indicated by these jealous safeguards the right
ought always to be exerted. For, this power,
which relegates the citizen to another iurisdic-
ton, and deprives him of that protection which.
as general rule, the State owe to every so>
journer within its limits-is OF so high nature
as to exact the utmost care in its application,
even to the prescribed cases. Every one charg
ed with its execution should see to it that all
the securities by which it has been so anxious. |
~ surrounded are observed with rigorous
fidelity.
Examining, in the light of these rules, the
requisition for Merriam, it viii at once be seen
that no case is made for the exercise of this |
power. 5000 .t
There is no allegation, still less is there any
evidence, that Merriam ever fled from the State /
Of Virginia. True, the preamble to the reuui- /
sition reeites that q it appears by the annexed /
documents that Merriam is a fugitive from |
justice from Virginia" but this recital does
not accord with the fact M flight what,
ever is shown by the documents annexed
These, as previously sta5ed, consist only of the
copy of an Indictment found against Merriam
in Virginia Court, with such attestation and
certificate as was deemed necessary to establish
It's authentic nature. In all these " documents"
from the beginning to the end, there is no word,
no letter, from which human ingenuity.can
1raw the vaguest hint that Merriam had fed
from Virginia. Nay, more, there is nothing to
show that he was ever within the State, save
he allegation in the Indictment, that the offense
II which he was accused was there committed
Certainly, this is not conclusive as to the fact
If his3presence. For this formal averment of
,eaUe would equally have been made-becalise
essential to every NEUTRALITY-SUSPICIOUS. the
lart borne by Merriam in the alleged conspiracy
md offence had been acted altogether within or
.ltogether without the limits of the State. In
Is legal effect, this averment is entirely con
istent with the hypothesis that he has never
een within the boundaries of Virginia. a
Rranting, however, that this declaration i'm
oTts the actual presence Of Merriam at the
lace where the commission of the oifense is
aid, it still remains true that there is absolute
y nothing in the pspers accompanying the
equisition, to indicate that he has since fed
rom, or otherwise left the State. II within it
hen, he may, for aught that appears in those
aPers, have continuously bided there up to the :
cry moment when the requisition was made,
T even until now. Nor is there anything in
he requisiticn itself which can supply this de-
.et ia its annexed Documents as that nos
there AYERS a fight by Merriam. Ii merely
.fers to these " documents" as giving evidence
f such fight, and does nothing more. These,
has been seen, do not furnish any evidence
hahever unon that subiecf. Al that fha ea,o