Polk_Letter_046_49866

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Executive Department ABBEVILLE, South Carolina, January 25, 1840

To His Excellency,

the Governor of the State of Tennessee

Sir,

I herewith transmit to your Excellency, the enclosed Report and Resolutions, adopted by the Legislature of South Carolina, in relation to the Georgia and Maine Controversy, with the request that they be laid before the Legislature of the State.

I have the honor to be, With considerations of High Respect, Your ob't.

Patrick Noble

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State of South Carolina Columbia

In the House of Representatives, December 13, 1839

The Committee on Federal Relations, to whom was referred so much of the Governnor's Message, as relates to the controversy between the States of Georgia and Maine, with the accompanying Documents have had the same under consideration, and beg leave to submit the following Report:

In May, 1837, a slave, named Atticus, the property of James Sagurs and Henry Sagurs, citizens of the city of Savannah, in Chatham county, in the State of Georgia, was conveyed from that State to the State of Maine, by Daniel Philbrook and Edward Killeran, citizens of the latter State: the former of whom was the Master, and the latter the mate of the schooner Boston, which had recently entered the port of Savannah. On the 16th of June, of the same year, information on oath was made before a Magistrate of Chatham county, by James Sagurs, one of the owners of the slave, that Daniel Philbrook and Edward Killeran "did, on or about the fourth day of May last, feloniously inveigle, steal, take and carry away without limits of the State of Georgia," the slave Atticus; "that the said Daniel Philbrook and Edward Killeran have been guilty as the deponent is informed and believes, of a felony under the laws of this State," and that since the commission of said felony, the said Philbrook and Killeran have fled from this State, and are as he believes, at this time, within the limits of the State of Maine, in the United States."

A warrant for the arrest of Philbrook and Killeran, was issued by the Magistrate before whom the information was made, on the same day, to which, the officer charged with its execution, returned that they were not to be found in the county of Chatham.

On the 21st of the same month, His Excellency, William Schley, Governor of the State of Georgia, mad a demand upon His Excellency, Robert P. Dunlap, Governor of the Sstate of Maine, of Philbrook and Killeran, as fugitives from the justice of Georgia, charged of feloniously inveigling, stealing, taking and carrying away, a slave, and transmitted with his demand, a copy of the affidavit and warrant, and the return, duly authenticated. On the 16th of August, of the same year, Governor Dunlap addressed to Governor Schley, a communication, in which he declined to cause the arrest of Philbrook and Killeran.

In December, 1837, the Legislature of Georgia, adopted resolutions, declaring the refusal of the Executive of Maine to surrender Philbrook and Killeran, dangerous to the rights of the people of Georgia, and directly and clearly in violation of the plain letter of the Constitution of the United States: that the State of Georgia became a party to the Federal Constitution no less for the better protection of her own, than the common rights and interests of all, and that when these ends are defeated, she is released from the obligations of that compact, and it has become her right and her duty, to provide protection for her people in her own way; that when an indictment should be found against Philbrook and Killeran, the Executive be requested to renew the demand for their arrest, and if the demand be again refused by the Executive of Maine, that a copy of its resolutions be transmitted to the Executive of each State in the Union, to be laid before their respective Legislatures; that a copy be transmitted to the President of the United States, and to the Senators and Representatives of Georgia, in Congress, to be submitted to that body; and if the Legislature of Maine, at its next Session, after those resolutions should have been forwarded by the Executive of that State, neglect to redress the consideration the state of the commonwealth of Georgia, and to devise the course of her future policy, and to provide all necessary safeguards for the protection of the rights of her people.

On the 7th of February, 1838, an indictment, charging Philbrook and Killeran with larceny, in feloniously inveigling, stealing, taking and carrying away the slave Atticus was found by the Grand Jury of Chatham county, and on the 27th of April, His Excellency, Governor Gilmer, the successor of Goveror Schley, made upon Governor Kent, the successor of Governor Dunlap, the demand requestd by the Legislature of Georgia, and accompanied that demand with the copy of the indictment found, and the proceedings on which it was founded, duly authenticated.

On the 25th of June, Governor Kent declined to order the arrest and surrender required by the authorities of Georgia.

On the 19th of August, 1839, Governor Gilmer addressed a communication to Governor Fairfield, the Successor of Governor Kent, desiring to be informed of the action of the Legislature of Maine on the subject of the resolutions of the Legislature of Georgia, and received for answer, the proceedings of the Legislature of Maine, declaring it inexpedient to legislate on the subject, as it is exclusively within the province of the Executive Department.

The second clause of the second section of the fourth article of the Constitution of the United States, provides "that a person charged in any State with treason, felony or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime."

The act of Congress of 1793, declares, "that whenever the Executive authority of any State in the Union or of either of the Territories North-west or South of the River Ohio, shall demand any person as a fugitive from justice, of the Executive authority of any such State or Territory to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a Magistrate of any State or Territory as aforesaid, charging the person so demanded with having committed treason, felony, or other crime, certified as authentic by the Governor or Chief Magistrate of the State or Territory, from which the person so charged fled, it shall be the duty of the Executive authority of the State or Territory to which such person shall have fled, to cause him or her to be arrested and surrendered, and notice of the arrest to be given to the Executive authority making such demand, or tothe agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear."

By the code of Georgia, "simple larceny is the felonious taking and carrying away the personal goods of another," and the same code provides, that "any person or persons who shall feloniously take and carry away a slave, shall be punished by imprisonment at hard labor in the Penitentiary, for any time not less than three years and not longer than seven years."

In reply to the demand of Governor Schley, His Excellency, Governor Dunlap, suggests that Philbrook and Killeran visited the city of Savannah, in the course of their business as Mariners, and returned to their domicil in Maine, by the customary route, and in the usual time; that they abided at their residence without concealment, and demeaned themselves as unsuspecting and innocent citizens, and insists that it may well be called a question whether such a course of conduct can be regarded as a fleeing from the Constitution.

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As this point is rather suggested than made, your Committee will proceed to a brief examination of the grounds on which the refusal to surrender the fugitives, is supposed to be justified.

The first ground taken by Governor Dunlap, assumes, that the affidavit submitted to him, does not specify the fact of which the imputed felony is predicated, but merely suggests the commission of a felony, without enabling His Excellency to determine, whether it is aimed at the subversion of the Government, or affected the life liberty or property of individual citizens, and that there is no specification of time, place or the manner of its commission. The second ground is, that the commission of the larceny, is not positively charged, but that the larceny, is believed by the deponent to have been committed; and maintains that such affidavit would not authorize a Magistrate to issue his warrant of arrest, or justify the detention of an individual for trial.

Your committee cannot well conceive that an affidavit so clear in its specification of the particular offence--even with the minuteness with which the statute of Georgia defines it,--and so direct and positive in charging the alleged fugitives with its perpetration, could have been the subject of mistake or misconception. Its language is positive and explicit, that they "did feloniously inveigle, steal, take and carry away" the slave, and not that the deponent had been informed, or believed they had done so.

The legal propositions insisted on by His Excellency, the Governor, in the grounds on which his refusal is put, appear to your committee to be as untenable, as the assumption of fact in both, is gratuitous and palpable.

All who have the slightest knowledge of Criminal Law, cannot but be aware, that precision of statement, and particularity of averment, do not constitute requisites of any process or proceeding, that seeks merely the arrest, or detention of one suspected of a crime, but this information on oath that a crime has been actually committed, and that there is cause and probability of suspecting the party against whom the warrant is prayed is all that is usually, or can be legally, required.

Whatever opinion may be entertained of the sufficiency of the affidavit, or of the nature of the objections raised by Governor Dunlap, his successor Governor Kent, admits, that the grounds of his predecessor's refusal are removed by the indictment found, a copy of which accompanied the second demand which was made by Gobernor Gilmer.

He admits that the copy of the indictment found, "for stealing a man alleged to be a slave," as he is pleased to designate the charge is sufficient evidence that the alleged fugitives from the justice of Georgia are charged with a crime but sees no evidence that they are fugitives form justice; and when their arrest is demanded as a right, claims for the Executive of Maine, the right to be satisfied of the existence of this fact, as one of the conditions of the demand. He suggests a doubt, whether an accusation or charge must not have been made before the flight, to authorize the demand, and feels but little doubt, that such was the chief intention of those who framed our Federal Constitution.

Is the demand a right? The right of a Foreign State or Kingdom, independent of treaty stipulations to require the surrender, on demand, of those who have committed crimes in another Country, is a proposition, of which many distinguished writers on public law, maintain the affirmative, and some with equal claims to consideration, the negative. But whatever may be the right amongst Foreign Nations; all concur that the impolicy of affording an asylum, and a refuge to fugitives from justice of other States, is undeniable. It is believed that most, if not all Foreign States, that have established commercial relations with others, have thought fit to provide for their security in this regard.

When it shall be remembered that our Federal Government, in its treaty with Great Britain in 1794, stipulated expressly for this right; that the Constitution of the United States was intended "to form a more perfect Union, establish justice, and ensure domestic tranquility" between contiguous States; and that that instrument imperatively declares the fugitive "shall, on demand, be delivered," your Committed cannot perceive, the propriety with which the right can be questioned.

That the suggestion, whether an accusation or charge should not have been made, before the flight of the offender, to authorize the demand, and require the surrender, is destitute of all claim to eve plausibility, your Committee will not pause to demonstrate.

Can, then, the refusal to cause the arrest and surrender of Philbrook and Killeran, find justification in the insufficiency of the testimony, to establish the fact that they had fled from the justice of Georgia?

Your Committee are of opinion that some evidence of his flight should accompany the demand of a fugitive from justice, so that it may appear, that the party demanded, has departed without having responded to the imputed crime, or endured its punishment in the State, whose laws are alleged to have been violated, but they can not entertain a doubt, that merely prima facie evidence of the fact, is all that in any case can be required, or in most cases could be produced. That the flight was with the motive or purpose to evade punishment, or to elude justice, is a fact that is susceptible of only resumptive proof, and rarely could be otherwise established, than by proof, that a crime had been committed, and that it's perpetrator had gone without the limits of the State, having jurisdiction of the offence. But the affidavit charges the flight of these individuals, directly and positively, and receives confirmation from the return of the officer, charged with the execution of the warrant, in the county of Chatham. The Constitution, and the Act of Congress, in providing for the arrest and removal of fugitives from justice, intends summary and ministerial; proceeding, and does not contemplate judicial investigation for ascertainment of the fugitives' guilt. The evidence which shall cause to believe him guilty, such as would upon a warrant, justify his commitment for trial.

If th is be the purport and effect of the evidence, in the form prescribed, it appears to your Committee that the right to demand the removal of a fugitive, is undeniable, and the duty to cause the arrest and surrender, imperative.

Your Committee will not here, refrain from allusion to a fact which may afford some illustration of the course which the Executive and Legislative Derpartments of Maine, have seen fit to pursue, in respect to the demands which have been made, of the surrender of the alleged fugitives from the justice of Georgia. After the refusal of Governor Dunlap and after the action of the Legislature of Georgia on the subject, the Legislature of Maine enacted a Law, that when the surrender of a fugitive from justice shall be demanded of the Executive of that State, "and the Governor shall be satisfied, on investigation of the grounds of such demand, and that the same is made conformably to law, and ought to be complied with, he shall issue his warrant under the seal of the State authorizing the agent who should make such demand, either forthwith or at such time as shall be designated in the warrant, to take and transport such offender to the line of his State."

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That this statute intends by the Executive Department of Maine, inquiry into the guilt of the fugitive, and a determination of the expediency of ordering his surrrouder whether he be innocent or guilty, although demanded comfortably to law, its terms as well as its history. may well render probable. I this be just interpretation, well may Governor of Maine, call the right to demand a fugitive from justice, a question.

But if this construction be incorrect, and the right to make the demand unimpaired by the statute, it will be perceived, that the warrant of arrest must be executed by the agent of the State whose Chief Magistrate makes the demand, and that the Governer of Maine, may authorize the arrest either forthwith, or at such times, as may be designated in the warrant. The difficulties which such agent at any time, experience, m making an arrest, in a Foreign Jurisdicition, especially with a warrant designating a remote day for its execution, added to the chances of escape which it holds out, would, in most cases, make it utterly impracticable. However incompatible with the Supreme Law, your committee may deem this Statute of Maine, illustrated as it is by the conduct of her Executive Department, they are constained to regard it, as indicating the settled determination of that State, that no citizen of hers, shall ever answer in a Southern tribunal, for an offence against the right to certain property, to which her POLICY AND PEOPLE, are most cordially hostile.

The facilities which the Federal Constitution afford to citizens of the United States, who are inimical to slavery, of abducting and inveigling slaves from their owners, and the temptation to embrace those faciliteis which is suggested by such impunity, as the authorites of Maine have provided for her citizens, presents a conjuncture; which the least timid, and the most prudent amongst us; may well deem fall of peril to the rights of the South. When the safeguards of the Federal Constitiuion shall become ineffectual and illusory, then indeed, the period has arrived, when they did introduce slaves amongst us against our remonstrance, they shall not remove them against our consent, and that whilst we tolerate no impairment of our title to our property, in the Halls of the Federal Legislature, we will , also, pe(r)mit no State to convert itself into a city of refuge, for those who invade it as felons.

Your Committee recommend the adoption of the following Resolutions:

Resolved, That it is the duty, as well as the right, of any State, to insist on the faithful observance of the Federal Constitution, by each State in the Union.

Resolved, That to define crimes and felonies within its jurisdiction, is an incident to the sovereignty of each State, and that no other State can question the exercise of that right.

Resolved, That to demand the surrender and removal of fugitives from justice, is, by the Constitution, a right; and the arrest and surrender a duty: that the denial or impairment of this right, is inconsistent with the constitutional obligations of a State, and subversive of the peace and good government of the other States.

Resolved, That the right has been impaired, if not denied, by authorities of Maine, and that this State will never consent, that any State shall become an asylum for those who are fugitives from the justice of other States.

Resolved, That this State will make common cause with any State of this Confederacy, in maintaining its just rights, under the guaranty of the Constitution of the United States; and should the obligations of this instrument be disregarded by those whose duty it may be, to enforce them, it will take counsel of its co-States of this Confederacy, having similar interests to protect and similar injuries to redress, in devising and adopting such measures, as will maintain, at any hazard, these rights, and that property, which the obligations of the compact of Union-cancelled as they then will be, as to us--have failed to enforce.

Resolved, That the Executive of this State, be requested to transmit to the Executive of several States, to be laid before their respective Legislatures, to the President of the United States, and to our Senators and Representatives in Congress a copy of the above Report, and of these Resolutions.

Resolved; That the House do agree to the Report. Ordered, that it be sent to the Senate for concurrence. By order T. W, GLOVER Clerk House Representatives. In Senate, December 20, 1839.

Resolved; That Senate do concur. Ordered, it be returned to the House of Representatives. By Order William E. Martin Clerk Senate.

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PAID 6 cents (Illegible) Due

His Excellency the Governor of Tennessee

Nashville

Governor of South Carolina Rec'd Febr -18th 1840. --

Relating to the Controversy between Georgia & Maine-- upon the subject of Fugitives from Justice

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