History, 1838–1856, volume D-1 [1 August 1842–1 July 1843]

  • Source Note
  • Historical Introduction
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<October 20> The following is an Extract of Mr.Spencer’s opinion upon the case.
“The Constitutional provision under which requisitions may be made by the Governor of one State upon the Governor of another, was a substitute for the principle—— recognized by the law of nations, by which one Sovereign is bound to deliver to another, fugitives who have committed certain offences. These offences are of the deepest grade of criminality, and robbers, murderers and incendiaries, are those enumerated, as proper to be surrendered. Following the analogy thus suggested, the provision in our Constitution, it would seem, should be construed to embrace similar cases only, except, perhaps, those offences which arise from an abuse of the same Constitutional provision— that pro[HC 5:177]vision must be guarded with the utmost care, or it will become intolerable. I do not think the circumstances of the case before me are of such grave import, or the offence itself of such high grade as to justify the requisition desired. The power given by the Constitution ought not to be cheapened, nor applied to trifling offences, nor indeed to any that was not originally contemplated.”
For the reason’s stated in Mr.Spencer’s opinion the Governor of refused to make the requisition upon the Governor of . The case—— certainly came within the letter of the law; but not within its spirit and meaning— so with the affidavit of , when he swears that—— Smith had fled from justice, it may come within the letter of the Constitution, but does it come within its spirit and meaning? does it show that Smith was in at the time of the Commission of the crime, and that he fled from that to evade being brought to justice for that crime ? or does it refer to the flight of Smith and the Mormons from some years since?
I will refer to one more case of a similar nature. Lord Campbell, formerly—— Attorney General of , in a recent debate in Parliament upon the subject of the Creole, made the following remarks: “To show how cautious States should be in making such concessions, one to the other reciprocally, he would mention a case that occurred when he was Attorney General. A treaty had been agreed upon between the State of and the province of , by which the—— Government of each agreed reciprocally to deliver up the Citizens or subjects of the other against whom Grand Juries had found a bill, and who had sought refuge within the territories of the other. It happened that a slave had escaped from his master at , and had got to . To facilitate his escape, he rode a horse of his master’s for a part of the way; but turned him back, on reaching the frontier. The authorities of well knew that would not give up a runaway slave, and that as they could not claim him under the treaty; they therefore had a bill of indictment against him before a Grand Jury for stealing the horse, though it was clear the animus furandi was wanting. The Grand Jury, however, found a true bill against him for the felony, and he was claimed under the treaty. The Governor, under such circumstances, refused to give him up, until he had consulted the Government in . He (Lord Campbell) was consulted, and gave it as his opinion that the man ought not to be given up, as the true bill, where no felony had been—— committed, did not bring the case within the treaty. The man was not given [p. 1412]
October 20 The following is an Extract of Mr.Spencer’s opinion upon the case.
“The Constitutional provision under which requisitions may be made by the Governor of one State upon the Governor of another, was a substitute for the principle—— recognized by the law of nations, by which one Sovereign is bound to deliver to another, fugitives who have committed certain offences. These offences are of the deepest grade of criminality, and robbers, murderers and incendiaries, are those enumerated, as proper to be surrendered. Following the analogy thus suggested, the provision in our Constitution, it would seem, should be construed to embrace similar cases only, except, perhaps, those offences which arise from an abuse of the same Constitutional provision— that pro[HC 5:177]vision must be guarded with the utmost care, or it will become intolerable. I do not think the circumstances of the case before me are of such grave import, or the offence itself of such high grade as to justify the requisition desired. The power given by the Constitution ought not to be cheapened, nor applied to trifling offences, nor indeed to any that was not originally contemplated.”
For the reason’s stated in Mr.Spencer’s opinion the Governor of refused to make the requisition upon the Governor of . The case—— certainly came within the letter of the law; but not within its spirit and meaning— so with the affidavit of , when he swears that—— Smith had fled from justice, it may come within the letter of the Constitution, but does it come within its spirit and meaning? does it show that Smith was in at the time of the Commission of the crime, and that he fled from that to evade being brought to justice for that crime ? or does it refer to the flight of Smith and the Mormons from some years since?
I will refer to one more case of a similar nature. Lord Campbell, formerly—— Attorney General of , in a recent debate in Parliament upon the subject of the Creole, made the following remarks: “To show how cautious States should be in making such concessions, one to the other reciprocally, he would mention a case that occurred when he was Attorney General. A treaty had been agreed upon between the State of and the province of , by which the—— Government of each agreed reciprocally to deliver up the Citizens or subjects of the other against whom Grand Juries had found a bill, and who had sought refuge within the territories of the other. It happened that a slave had escaped from his master at , and had got to . To facilitate his escape, he rode a horse of his master’s for a part of the way; but turned him back, on reaching the frontier. The authorities of well knew that would not give up a runaway slave, and that as they could not claim him under the treaty; they therefore had a bill of indictment against him before a Grand Jury for stealing the horse, though it was clear the animus furandi was wanting. The Grand Jury, however, found a true bill against him for the felony, and he was claimed under the treaty. The Governor, under such circumstances, refused to give him up, until he had consulted the Government in . He (Lord Campbell) was consulted, and gave it as his opinion that the man ought not to be given up, as the true bill, where no felony had been—— committed, did not bring the case within the treaty. The man was not given [p. 1412]
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