Commonwealth of Ky. v. Dennison, Governor, dec. made upon you by the Governor of Kentucky, for the surrender of Willis Lago, described to be a "fugitive from the justice of the laws of" that State, may, for all present purpose, be regarded as sufficiently complying with the provisions of the Federal Constitution and the act of Congress touching the extradition of fugitives from justice, if the alleged offence charged against Lago can be considered as either "treason, felony, or other crime," within the fair scope of these provisions. Attached to the requisition is an authenticated copy of the indictment on which the demand is predicated; and this, omitting merely the title of the case and the venue, is in the words and figures following: "The grand jury of Woodford county, in the name and by the authority of the Commonwealth of Kentucky, accuse Willis Lago, free man of color, of the crime of assisting a slave to escape, &c., committed as follows, viz: the said Willis Lago, free man of color, on the fourth day of October, 1859, in the county aforesaid, not having lawful claim, and not having any color of claim thereto, did seduce and entice Charlotte, a slave, the property of C. W. Nuckols, to leave her owner and possessor, and did aid and assist said slave in an attempt to make her escape from her said owner and possessor, against the peace and dignity of the Commonwealth of Kentucky." This indictment, it must be admitted, is quite inartificially framed, and it might be found difficult to vindicate its validity according to the rules of criminal pleading which obtain in our own courts, or wheresoever else the common law prevails. This objection, however, if it have any force, loses its importance in the presence of other considerations, which, in my judgment, must control the fate of the application. The act of which Lago is thus accused by the grand jury of Woodford county certainly is not "treason," according to any code of any country, and just as certainly is not "felony," or any other crime, under the laws of this State, or by the common law. On the other hand, the laws of Kentucky do denounce this act as a "crime," and the question is thus presented whether, under the Federal Constitution, one State is Commonwealth of Ky. v. Dennison, Governor, &c. under an obligation to surrender its citizens or residents to any other State, on the charge that they have committed an offence not known to the laws of the former, nor affecting the public safety, nor regarded as malum in se by the general judgment and conscience of civilized nations. This question must, in my opinion, be resolved against the existence of any such obligation. There are many acts—such as the creation of nuisances, selling vinous or spirituous liquors, horse racing, trespassing on public lands, keeping tavern without license, permitting dogs to run at large-declared by the laws of most of the States to be crimes, for the commission of which the offender is visited with fine or imprisonment, or with both; and yet it will not be insisted that the power of extradition, as defined by the Constitution, applies to these or the like offences. Obviously a line must be somewhere drawn, distinguishing offences which do from offences which do not fall within the scope of this power. The right rule, in my opinion, is that which holds the power to be limited to such acts as constitute either treason or felony by the common law, as that stood when the Constitution was adopted, or which are regarded as crimes by the usages and laws of all civilized nations. This rule is sufficiently vindicated by the consideration that no other has ever been suggested, at once so easy of application to all cases, so just to the several States, and so consistent in its operation with the rights and security of the citizen. The application of this rule is decisive against the demand now urged for the surrender of Lago. The offence charged against him does not rank among those upon which the con stitutional provision was intended to operate, and you have, therefore, no authority to comply with the requisition made upon you by the Governor of Kentucky. Entertaining no doubt as to the rightfulness of this cor clusion, I am highly gratified in being able to fortify it by the authority of my learned and eminent predecessor, who first filled this office, and who officially advised the Governor of that day, that in a case substantially similar to the one now presented, he ought not to issue his warrant of extradition. Commonwealth of Ky. v. Dennison, Governor, &c. Other authority, if needed, may be found in the fact that this rule is conformable to the ancient and settled usage of the State. To guard against possible misapprehension, let me add that the power of extradition is not to be exercised, as of course, in every case which may apparently fall within the rule here asserted. While it is limited to these cases, the very nature of the power is such, that its exercise, even under this limitation, must always be guided by a sound legal discretion, applying itself to the particular circumstances of each case as it shall be presented. The communication, in a formal manner, of the preceding opinion, has been long but unavoidably deferred by causes of which you are fully apprised. Though this delay is greatly to be regretted, it can have had no prejudicial effect, as the agent appointed by the Governor of Kentucky to receive Lago was long since officially, though informally, advised that no case had been presented which would warrant his extra. dition. Very respectfully, your obedient servant, To the Governor. C. P. WOLCOTT. Some further correspondence took place between the Gov ernors, which it is not necessary to state; and the Governor of Ohio, having finally refused to cause the arrest and delivery of the fugitive, this motion was made on the part of Kentucky. Upon the motion being made, the court ordered notice of it to be served on the Governor and Attorney General of Ohio, to appear on a day mentioned in the notice. The Attorney General of Ohio appeared, but under a protest, made by order of the Governor of Ohio, against the jurisdiction of the court to issue the mandamus moved for. The case was fully argued by Mr. Stevenson and M. Marshall on behalf of the State of Kentucky, and by Mr. Wolcott, the Attorney General of Ohio, on the part of that State. The great importance of the principles involved in this case Commonwealth of Ky. v. Dennison, Governor, &c. has induced the reporter to allow a large space to the arguments of the respective counsel. That of Messrs. Cooper and Marshall and Mr. Stevenson, for the State of Kentucky, was as follows: The State of Kentucky, interested in the preservation of the integrity of her own laws, and in the punishment of such as offend against them on her own soil, comes, as a party plaintiff in this proceeding, before the Supreme Court of the United States, as a court of original jurisdiction, to ask for a mandamus against Mr. Denuisou, who is the Governor of Ohio, and as such, exercises the Executive authority of said State. The second paragraph of section 2, article 4, of the Consti tution of the United States, reads thus; "A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in an. other 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." To execute this obligation of the Constitution the act of Congress of 1793 was passed, (Statutes at L., 302, sec. 1,) in which, by the first section, the duty to be performed, and the person by whom to be performed, in the event of a demand under the Constitution, are prescribed. That duty is simple, and is stated thus: "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 secured, and notice of the arrest to be given to the Executive authority making such demands, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered, to such agent when he shall appear.' One Lago, who was indicted for an act denounced as a crime by the law of Kentucky, fled, and was found in Ohio, and was demanded by Governor Magoffin, the Executive authority of the State of Kentucky, of Governor Dennison, the Governor of Ohio, and at the time Executive authority thereof. All the con litious were observed to complete a proper demand, ac Commonwealth of Ky. v. Dennison, Governor, &c. cording to the act of Congress. It is further shown that, for reasons set forth in the official reply of Governor Dennison, as Executive authority of Ohio, the demand was not complied with, and that he refused to arrest Lago at all. Upon that refusal this proceeding is taken. The Commonwealth of Kentucky is properly the plaintiff in this case. "Where an application is made, the object of which is to obtain the benefit of certain provisions of an act of Parlia ment, &c., those for whose benefit such provisions were inserted in the act, &c., should be the applicants for the rule, although they may be neither specially nor nominally mentioned." Tapping on Mandamus, 289. The duty prescribed by the Constitution and law was to have been performed by the defendant, Dennison, as the officer wielding the Executive authority of the State of Ohio. He is, therefore, the proper person against whom to institute the proceeding. Is mandamus the proper remedy? We will not extend this brief by reciting what is said of the authority of the Court of B. R. over mandamus. It has been used since the days of Edward II, in England, and has been the suppletory police power of the kingdom. Tapping on Mandamus, 5-30. 15 East., 135. 3 Blacks. Com., 110. In this court it is acknowledged as an action, a case, rather than as a "prerogative writ." The proceeding on mandamus is a case within the meaning of the act of Congress. It is an action or suit brought in a court of justice, asserting a right, and is presented according to the forms of judicial proceeding. 12 Peters, 614; 2 Peters, 450. It is not by the office of the person to whom the writ is directed, bat the nature of the thing to be done, that the pro U65 3 B |