| 35 the offence [offense] was committed or the Governor has no jurisdiction to 'deliver up.' If the charge of having 'fled' is made, and the Governor acting in pais is attempting to deliver up upon that charge, the person attempted to be made the victim has a clear undoubted constitutional right, by means of a writ of Habeas Corpus, to test its truth before a judicial tribunal of the country, and if the charge is proven to be false, the Governor is ousted of his jurisdiction over the person of the prisoner, and he is restored to his liberty before he has undergone the penalty of the transportaiou [transportation] to a foreign country, upon the mere charge of an interested or partial witness.
The power of the Executive of a State to surrender up a citizen to be transported to a foreign State for trial; is a most tremendous power which might be greatly abused, were it not limited by Constitutional checks, and the citizens secured against its despotic exercise by the writ of Habeas Corpus. In the case of Williams, the Governor of Alabama, says, 'What occurs daily in the ordinary course of criminal proceedings, may take place in regard to persons transported to a distant jurisdiction for trial. It may happen that an innocent man will be accused, and, if demanded, he must be delivered up, should your exposition of the Constitution be sanctioned. Under these circumstances his condition would be perilous indeed; dragged from his home, far removed from friends; borne down by the weight of imputed guilt, and unable, probably to obtain the evidence by which he might vindicate his innocence; if appearances were against him he could scarcely hope to escape unmerited condemnation.
The American colonists regarded the exercise of this power, as an act of revolting tyranny, and assigned it in the declaration of Independence, as one of the prominent causes that impelled them to a separation from the British Empire. A power which may be thus oppressively used should be resorted to with the greatest caution. When its exercise is invoked it is not sufficient that the cause may apparently come within the letter of the Constitution; it is the duty of the Executive, before yielding a blind obedience to the letter of the law, to see that the case comes within the spirit and meaning of the Constitution. It may be pleasing as well as instructive to look into the proceedings of the Executive of our sister State, and witness, that by faithfully administering the law in relation to the delivery up of fugitives from justice, according to its spirit and meaning they have saved at least two of the citizens of Illinois from becoming victims to its abuse. In the year 1839 the Governor of the State of New York was presented with the copy of an indictment by a grand jury in the city of New York against John & Nathan Aldritch, for fraud in obtaining goods by false pretences, [pretenses], and was requested to make a requisition upon the Governor of Illinois, to surrender them up as fugitives from justice. Now here was case which came exactly within the letter of the Law of Congress, in relation to fugitives from justice. An indictment had been found charging them with having committed a crime. But did the Governor of New York make the 'requisition?' No; he referred the application to the Hon. John C. Spencer, now Secretary of War, and one of the most enlightened lawyers of the age.
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 [offenses]. These offences [offenses] 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 [offenses] which arise from an abuse of the same constitutional provision-that provision must be guarded with the utmost care or it will become intolerable.
"I do not think the circumstance of the case before me are of such grave import, or the offence [offense] 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 [offenses], nor indeed to any that was not originally contemplated."
For the reasons stated in Mr. Spencer's opinion the Governor of New York refused to make the requisition upon the Governor of Illinois. The case certainly came within the letter of the law; but not within its spirit and meaning,-so with the affidavit of Gov. Boggs, 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 Missouri at the time of the commission of the crime and that he fled from that State to evade being brought to justice for that Crime? or does it refer to the
(page 35) |
