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
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."
Notes and Questions
Nobody has written a note for this page yet
Please sign in to write a note for this page