M r. Levy moved that the Message of the President in relation to the fugitive criminals from Florida be referred to the
Committee of Foreign Affairs, with the following instructions, to wit:
"To make inquiry into the facts of any cases of demand for surrender of fugitive criminals under the tenth article of the treaty of Washington,
which may have arisen upon requisition of either of the respective parties to said treaty, and to recommend such course as may be proper
for the adoption of this House in respect thereto, and especially whether it be advisable for this House to recommend to the President to
notify the British Government that it is the wish of this Government to terminate the said tenth article of the treaty."
Mr. LEVY said:
I regard this to be the most important subject to the interests of the Territory I represent, which has arisen since I have
had the honor of a seat here; and to be one of the most important, in a national point of view, which is likely to occur
during the present Congress. Its national importance proceeds not alone from the fact that it is connected with the
foreign relations of the country, (always among the most delicate of our interests,) but from the further considerations
that the foreign power concerned is the great and natural enemy of our security, permanence, and prosperity as a
nation; and that the questions involved bring directly to the test the homogeneousness of the feelings that bind together
the several sections of this Union. The occasion furnishes the opportunity to determine how sincere are the professions
so often heard upon this floor, of a patriotism which distinguishes not between sections, and a devotion which
recognises no limits but those of the country, and the whole country. We now have the opportunity to see whether, in A
question involving national faith and the obligations of a treaty,"(though relating especially to the Southern section of
this Union, and to a Southern interest,) the people of the whole confederacy are prepared to stand up boldly and
generously, as a nation, in vindication of the violated rights and interests, and in sympathy with the outraged feelings, of
their common countrymen of that particular section. I, for one, do not doubt the result.
I regret that the high questions involved could not have been brought forward by one more competent to the duty; but
as the Representative of the Territory from whose jurisdiction these harbored felons escaped, and to whose wrong and
injury the infraction of the treaty more immediately operates, I have felt that it was demanded of me to bring the subject
to the attention of this House and of the nation.
The report which I shall hope to see from the Committee on Foreign Affairs, under the instructions I offer, will be a
resolution recommending the President to signify to the British Government that it is the wish of this nation to terminate
the tenth article. Such a resolution, 1 trust, will pass this House, unless, in the mean time, the Government of Great
Britain should exhibit a readiness to retract from its present position, and to surrender the fugitives referred to in the
President's Message. But before I can ask this House to adopt the instructions I have offered, I deem it incumbent upon
me to show, not only that it is competent to the United States Government to abrogate the tenth article at its pleasure,
but also that it is not unusual for this House to adopt a course such as I propose, in reference to interests connected
with our foreign intercourse.
In reference to the right of this Government to abrogate the tenth article of the treaty, I need do no more than refer the
attention of the House to the latter clause of the 11th article, which provides that the 10th article shall continue in force
until one or the other of the parties shall signify its wish to terminate it, and no longer." This right it is the bounden duty
of the Government to exert, if it be found that there has been ill faith on the part of Great Britain; or that the provision
operates unequally in respect to the different sections of the Union, or proves to have been unwise in,its design, or so
careless in its phraseology as to be liable to diversity of construction.
In evidence of the custom of this House to take action of the character I propose, it is sufficient to refer to the instance to
which I called the attention of the gentleman from Ohio on a former occasion. It was a resolution passed in 1828,
requesting the President to institute negotiations with Great Britain for the surrender of fugitive slaves. The resolution
does not appear in the journals of the day, because, I presume, it was considered in secret session. But it will be found
in the executive documents of that year, in a message from the President communicating the particulars of the
I presume the resolution was considered in secret session, because it proposed the initiation of a negotiation. But,
besides my being averse to anything like mystery in the transactions of a Republican government, the present occasion
does not call for concealment. It is with an infraction of a treaty obligation that I charge Great Britain; and if this be made
to appear, it is proper that the public indignation should be openly and decidedly manifested before all the world. I think,
also, that there is a peculiar propriety and fitness in the practice, by this House, of the course I have shown to be
recognised by precedent. It is right that, wherever a great public interest is pending and involved, this House should
make itself heard in behalf of the people. It is here alone that a full concentration of popular sentiment is to be found. It
is from this Hall that the manifestations of American feeling should be made to the world, and the echo of the People's
will go forth as the voice of the only true American sovereignty. Here it is that the national feeling, displaying its
pulsations, indicates to its agents and organs the national will. Whenever* then, the honor of the nation is attacked, or
its rights violated, it is in this body, instinct with the spirit of the people,-that the first throbs of popular indignation may be
expected to exhibit itself.
I propose to show that the occasion justifies the motion I have made. I do not design to discuss at large, now, all the
questions which are involved. It will be time enough for that when the committee shall have made its report. My object at
present is simply to present the case on its facts, with the principles that apply to them, fully and fairly to the
consideration of this House.
It will be recollected, sir, that when a clause was found to exist in the British treaty which had been ratified by the Senate,
and promulged by the President, as a part of the supreme law of the land, providing for the extradition of fugitives from
justice, It had been regarded with satisfaction, Or indifference, no doubt being entertained that its terms comprehended
a full equality of provision for all parts of the country. I take it for granted, that when the American Secretary was
negotiating with the British Minister upon the subject, he rested under the full conviction that all which appeared upon
the face of the article as proposed, would be carried into effect in good faith by Great Britain, as it certainly would be by
this nation. He forgot that it was necessary to treat with that power at arm's length. He had forgotten the history of a
diplomatic transaction which occurred during the administration of Mr. Madison, and which immediately preceded the
late hostilities between the two Governments. So deeply stained with perfidy was that transaction, as to have justified an
open and formal charge of it by Mr. Madison, in the face of all the world, against Great Britain. I allude to the fact that, at
the very moment when that nation, through its minister, was inviting negotiations for the amicable adjustment of the
difference between the two countries, and when,it was supposed that terms had been agreed upon which would bring to
a peaceable conclusion the difficulties then impending, and which threatened an open war, the British nation (as was
afterwards ascertained) had a special agent in this country, fomenting divisions, and exciting factious dissensions
among our people. No sooner had the machinations of this agent been ascertained to have been perfected, as far as it
was practicable, (which, thanks to the patriotism of our people, was not far,} than the British Government suddenly and
shamelessly repudiated the acts of its minister, and denied his authority to engage in the negotiation into which they had
treacherously lured us. Let the extract of Mr. Madison's message to Congress of June 1,1812, speak for itself:
"There was a period when a favorable change in the policy of the British cabinet was justly considered as established. The minister
plenipotentiary of his Britannic Majesty here, proposed an adjustment of the differences more immediately endangering the harmony of the
two countries. The proposition was accepted with the promptitude and cordiality corresponding with the invariable professions of this
Government A foundation appeared to be laid for a sincere and lasting reconciliation. The prospect, however, quickly vanished. The whole
proceeding was - disavowed by the British Government, without any explanations which could at that lime repress the belief that the
disavowal proceeded from a spirit of hostility to the commercial rights and prosperity of the United States. And it has since come into proof,
that, at the very moment when the public minister was holding the language of friendship, and inspiring confidence in the sincerity of the
negotiation with which he was charged, a secret agent of his Government was employed in intrigues having for their object a subversion of
our Government and a dismemberment of our happy Union."
This glaring instance of bad faith in Great Britain, and of that utter disregard of the candor and honor which should mark
the bearing of nations in their intercourse with each other, brands her forever with merited infamy, and she should no
more be trusted in her dealings.
The American negotiator forgot, then, that, in treating with such a Government, we should treat at arm's length. The
result of the first attempt to bring her to the execution of one of the most important provisions of this last treaty, proves
that, whatever were the motives and designs of her negotiator, the design and purpose of his Government is now to
practise what I might almost be justified in terming her usual disposition in her dealings with this country—ill faith,
What, sir, has been the course of this Government in the execution, upon our part, of the provisions of this act? Has
there been a pretence of failure to comply with its terms, now or heretofore? Let it be remembered that a similar
provision once existed between the two Governments in Jay's treaty. In the utmost simplicity of good faith, on the very
first occasion which occurred under that treaty, we had gone to lengths infinitely beyond what those disposed to the
most liberal good faith in the execution of a treaty obligation could justify. I allude to the case of Jonathan Robbins, to
which I shall have occasion to refer more particularly hereafter. And what has been our course under the present
treaty? The only case in which demand has been made under the tenth article, is that of Christina Gilmour. It was the
case of a poor, ignorant, idiotic, defenceless female, who, upon the demand of the British Government, had been
promptly (I should say hastily) surrendered. She was sent by us 3,000 miles, over the ocean, to be tried for an alleged
crime, of which, upon trial afterwards in Scotland, she was declared to be innocent. What was the proof upon which she
was surrendered? Nothing—absolutely nothing more than the deposition of McKay, a rural police officer of Scotland, as
he styled himself, who stated that he had a warrant from a magistrate in Scotland for her apprehension. The charge
against he* was the murder of her husband. The facts, as deposed to by this, the only witness, were, that three months
or more after the interment of her husband, the body had been exhumed, and a substance supposed to be arsenic had
been discovered in his stomach. But the witness expressly, and in the very words I use, testified, " that he was not able
to swear that the body was the body of John Gilmour from his own knowledge," and "that he had no means of knowing
how it (the arsenic) came there, nor anything which would tend to implicate the prisoner." Exculpatory evidence was
refused to be heard by the magistrate, and he decreed a surrender. This case has not attracted the attention it
deserves; but it nevertheless illustrates in strong colors the ,high and implicit good faith with which this Government is
disposed to execute its engagements. I ought not to omit the remark that, whatever may be thought of the correctness of
this transaction, the Administration here is not liable to blame for directing her surrender. The magistrate had declared
the evidence sufficient for commitment, and the President had no other alternative than to order the surrender of the
I have shown, sir, that, in the first case which had arisen under this treaty, we had acted in good faith, and had complied
most liberally with the requirements of the treaty. I now propose to show how far Great Britain has exhibited a disposition
to emulate us in this lesson of honest and liberal good faith.
I shall be much mistaken if I do not show, by the most ample evidence, that the design has been entertained ab origine,
by that Government, to practise ill faith in respect to cases arising under this clause, in which slaves were the offenders,
or in which the Southern section of this Union was interested.
For this purpose I shall refer to authentic developments in the British Parliament, and elsewhere. It will be difficult to
resist the impression, when we consider how immediately afterwards these proofs of ill faith were exposed, that the
purpose of violating this clause, in an essential particular, existed even during the negotiation. It will be recollected that
Lord Ashburton had proceeded on his triumphant return to Great Britain no farther than New York, when, in conference
with a Committee of Abolitionists in New York, he was guilty of the indelicacy, to say nothing of the indiscretion, of giving
interpretation to this clause of the treaty before he had made report of his negotiation to his own Government. He there
avowed the principle, that crimes committed by slaves, in effecting their escape, would not be covered by the treaty; and
declared that cases similar to that of the Creole would not be recognised as coming within its intent; and, "that the
friends of the slave in England would be very watchful to see that no wrong practice took place under the treaty."*
* " Lord Ashburton and Anti-Slavery.—We learn from a communication in the Journal of Commerce, that previous to the departure of Lord
Ashburton, a delegation from the American and Foreign Anti-Slavery Society solicited and obtained an interview with" him, to lay before him
facts for representation to his Government, having reference to the tenth article of the recently concluded treaty, which, it appears, they
apprehended might be so construed as to cause the surrender of fugitive slaves, under the name of criminals. The result is thus described:
"The delegation was courteously received by Mr. Mildmay, secretary of the special mission of H. B. M., and by him introduced to Lord A., who
invited them to be seated, expressed much satisfaction at seeing them, and entered into a frank and full conversation on the subject for
which the interview was requested.
"The delegation, after congratulating the British envoy on the successful termination of the mission, informed him of the particulars of the
case of Nelson Hackett, a slave who fled from Arkansas to Canada, where his pursuers overtook him, had him arrested on a charge of
stealing a coat, gold watch, and horse, of his master. Hackett was imprisoned, and, mean time, a grand jury in Arkansas indicted him. A
demand was forwarded from the Governor of Arkansas, to the Governor-General of Canada, for his surrender. Sir Charles Bagot complied,
and Hackett was taken back to Arkansas. The delegation stated to Lord A. their apprehension that such a course occurring without any
treaty stipulation, there was great cause of apprehension that under the tenth article of the treaty, which provides for the mutual surrender of
all persons charged with certain specified crimes, no fugitive slave would be safe in Canada; especially when it is notorious that
slaveholders allege crimes against fugitive slaves, as one expedient for their reclamation.
"Lord Ashburton went into an explanation of the tenth article, and mentioned several particulars of the discussion that took place, both on
that topic and others relating to slaves. He said that it was very desirable to have an article in the treaty to meet cases similar to that of
Holmes, who fled from Canada into Vermont, and the cases that would frequently arise, considering the extent of the bordering lines, and
the temptation for criminals to flee across the lines in hope of securing themselves from arrest and punishment. The Governor of Canada
was anxious that deserters should be included; but as Lord A. learned that a claim would be put in for the delivering up of fugitive slaves, he
abandoned the question of deserters from H. B. M.'s possessions.! He was also very desirous to secure the delivery of mutineers, but did
not press it, lest it should involve, on the part of his Government, the delivery of slaves situated as were those on board the Creole. ,
"With regard to the case of the slave Hackett, he did not know all the facts. Sir Charles Bagot was known to him, and he did not believe he
would do anything intentionally wrong. But he had just entered upon his duties, and was probably desirous, at that juncture, of promo
ting good feeling with his neighbors. The fact that the slave had taken his roaster's watch, was a circumstance that probably went against
him. 'Had he only taken the horse,', said Lord A., [looking at Gerrit Smith significantly, though he could not be supposed ever to have read
the advice of that gentleman to fugitive slaves,] 'he would not probably have been surrendered, for you know the horse was necessary for
his escape.' Lord A. said that, in framing the tenth article, great care had been taken to provide that inferior magistrates in Canada should
have no authority to surrender fugitives, as had been urged by the other party. Only the Governor himself could perform an act of so great
importance. Great care would be taken, he had do doubt, to protect the innocent, and that the taking of an article necessary to effect an
escape would not be considered felonious.
"If, said he, the operation of the tenth article proves injurious, he had no doubt the British. Government would put an end to it, agreeably to
another provision of the treaty, viz: 'the tenth article shall continue in force until one or the other party shall signify its wish to terminate it, and
no longer.' Lord A. said that when the delegation came to read his correspondence with Mr. Webster, they would see that he had taken all
possible care to prevent any injury being done to the people of color; that if he had even been willing to introduce an article including cases
similar to that of the Creole, his Government would never have ratified it, as they will adhere to the great principles they have so long
avowed and maintained; and that the friends of the slave in England would be very watchful to see that no wrong practice took place under
the tenth article.
"The delegation now rose, and after thanking Lord A. for the candid and satisfactory manner in which he had received their
communications, and answered their inquiries—wishing the Divine blessing for the part he had taken in perpetuating peace between the
respective countries, and protecting the rights of the oppressed, and a safe and speedy return to his native land—took their leave, highly
gratified with the courtesy, frankness, intelligence, and philanthropy of this distinguished nobleman."—[Niles Register, vol. 63, p. 53.]
Well; following up this exposition of his feelings and views, we find him, upon the introduction of the Extradition bill in the
House of Lords, declaring that he "could assure their lordships that there was no part of the treaty which had received
their lordships' approbation that he looked to with more anxiety than its possible operation on the condition: of slavery."
Upon the same occasion, Lord Aberdeen declared that "not only was a fugitive slave guilty of no crime in endeavoring to
escape from a state of bondage, but he was entitled to the sympathy and encouragement of all those who were
animated by Christian feelings."
Such was the language used by Earl Aberdeen on presenting to the House of Lords the bill to carry into effect this
clause. Gentlemen here, of a certain class of opinion upon the subject of slavery, laugh; but this is only an introduction
to the evidences of ill faith which I shall present. It sufficiently shows, however, that a discrimination against the South
formed a part of the deliberate purpose of the British Ministry.
When the bill came up for discussion in the House of Commons, the; Attorney-General, speaking upon the authority and
as the organ of the Government, announced that, "in the case of the Creole, it was the opinion of the law officers of the
Government, that, according to our law, it could not for a moment be permitted that the slaves should be restored. They
were as safe in the Bahama Islands as they would be in the Exchange; and whatever were the consequences, her
Majesty's Ministers were prepared to act up to the law. He thought he might pledge the Government to the declaration
that; on any similar occasion, they would pursue a similar course."
It must be borne in mind that the American people have ever evinced a strong disinclination to this policy of extradition,
and that this repugnance was rather strengthened than appeased by the operation of the clause in Jay's Treaty, under
which the Robbins case occurred. So deeply seated has been this feeling in the minds of the people of this nation, that
no Administration has ever ventured, since that time, to reenact such a clause, until Mr. Webster introduced it into this
treaty, and introduced it silently, (for there was no mention of it in his diplomatic correspondence.) Now, if there was
anything which had brought the country 'to acquiesce in a stipulation of this sort, it was the necessity (which the
enormity of the Creole case exposed) of some such arrangement with a conterminous and neighboring power,, holding
such principles as those practised by Great Britain. In that case, blood-stained murderers and pirates were shielded
from the punishment due to their crimes, under circumstances that would have richly justified a declaration of war.
Like that which has now occurred, it was a case, not of flight from service;; it was not the case of a demand for the
surrender of fugitive slaves, but for criminals, who had, by their acts, brought themselves within the strict definitions of
piracy and murder, upon the high seas. Here, then, was a case of piracy and murder,' the perpetrators of which were
protected by the British Government, because there was no treaty provision upon this subject. No one can recur to the
history of the negotiation of the late treaty, without being convinced that the case of the Creole, so far as any of those
on board were participant in the crime of murder, was understood to be comprehended. The criminals in that particular
case were not surrendered under it, because the case was anterior to the treaty. But I cannot doubt that it was
understood by the American Secretary, that Lord Ashburton intended him so to understand, and that the Senate
understood—certainly the American people understood—that cases of piracy and murder, similar to that on board the
Creole, were intended to be provided for in that treaty. It is impossible it could have been otherwise ratified. It is
impossible the people would otherwise have yielded their assent It is quite clear that it was so understood at the time in
Great Britain. In proof of this, I refer to her journals—the medium through which her literature (and, it may almost be
said, her governmental policy) speaks. The London Quarterly Review, in commenting upon the treaty, holds the
following language; and this one quotation will be sufficient to mark the understanding in that country:
"But though this question (the surrender of the Creole murderers) was not settled,"and, in fact, could not be settled by the treaty, (being prior
to it,) it probably produced the article of extradition we have just mentioned. Besides the question of the emancipation of the slaves in the
Creole, there was also a question of murder. Our authorities should willingly have given up the accused for trial before their natural and
national tribunals, but that the United States had formerly repudiated a convention of extradition. There had been, we think, under Mr. Jay's
treaty, such an arrangement; but it had been renounced by America, and she had rejected all overtures for renewing it. This case, however,
brought her back to a reconsideration of the matter, and its various bearings; and the result has been this article, which we really believe is
of more real practical importance to the two countries than all the other special provisions of the treaty put together."
It is here admitted by this British authority, that the case of the Creole was the moving inducement, the exciting cause to
the consideration of the question ; and which had led this country to acquiesce in the introduction of this article into the
treaty. And yet we find the Attorney-General of the British Government, a member of her ministry, declaring that, in any
similar case arising hereafter, he was prepared to say that the Government would not consider it as included in the
treaty, although the treaty declares that murderers and pirates shall be surrendered.
But the enormity of the opinions entertained and the policy designed by the British Government, as exposed in this
discussion of the House of Commons, does not stop here. Murder by a slave is even justified! As will be seen by the
further extracts I will read.
Mr. McCauley (a member) says, in the course of his remarks:
"If such a treaty as the one under consideration had been entered into with the Northern States of America, in which the reports of our law
courts were quoted, and the very details of our legal proceedings were adopted, it would have been productive of advantage; but in the
Southern States the unfortunate relations between master and slave came into operation."
Here appeared the discrimination between the Northern and Southern States in respect to the operation intended to be
given to this clause of the treaty, which it is the evident purpose of the British Government to practise.
Lord Palmerston thus spoke:
"In no case where a slave was charged with the offence of murder or robbery, would any English Magistrate be justified in delivering him up
for trial, unless the offence he was charged with was one that was looked on as a murder or robbery by the law of England; and he
apprehended that any act that a slave might commit in resisting the coercion of his master could not amount to murder, and would not
justify a magistrate in giving up the fugitive."
Lord Stanley, (one of the Ministers of Great Britain,) speaking " as one having authority," assented to the doctrines of
Lord Palmerston, and declared, in regard to slaves charged with murder:
"No fugitive could, under the treaty, be surrendered as a murderer, unless his offence was such as our laws would qualify with that epithet."
"He did not hesitate to say that, in point of reciprocity, this treaty was of infinitely greater advantage to the people of Canada than to those of
the United States."
And he went on to intimate, that if the operation of this article was found unfavorable to the slave population of our
States, it was in the power of Great Britain to terminate it. It is more favorable to the people of Canada, says this British
Minister, than to the people of the United States! Because, forsooth, as he substantially states, while on their part they
would exclude from its operation a very large part of the persons in this country capable of crime, we, on our part, good,
easy people, would surrender to them offenders against their laws without discrimination.
This whole debate, sir, (which I have not time to refer to as extensively as I wish,) bears upon its face the stamp of
preconceived and meditated injury and insult to this country, by a violation of good faith in the execution of the treaty,
and by an odious, unjust, unequal, insulting and degrading discrimination between the several portions of this Union.
But it is not here alone that the evidence of the ill faith of Great Britain stops. Sir, I have a copy of a correspondence
relative to this very occurrence, which took place between the Secretary of some Abolition Society in England and Earl
Aberdeen, the authenticity of which is evidenced by its publication in the London Times. In this correspondence, it will be
seen, the Abolition Secretary informs the British Minister that a case of the class "concerning which the British
Government have given such distinct and reiterated pledges has now occurred." Pledged to what, if pledged at all?
Pledged to give asylum to murderers, if they be slaves—to shield and protect the perpetrators of the highest of human
offences, the most heinous of human crimes—to receive and cherish the most accursed of God, the murderer of his
fellow man! Pledged to violate a solemn national obligation! Pledged to dishonor and to perfidy! And how is this insolent
and insulting assertion of a pledge met? By a stern and indignant rebuke? By the scorn of silence, or by a merited
reprobation? Not at all; but by a respectful diplomatic answer, which denies nothing, but tacitly countenances the
fanatical spirit of his correspondent, and insinuatingly satisfies the expectation (though in language « which does not, in
terms, avow a purpose to violate the treaty) that the British Government would surrender itself to the use of such
associations as Mr. Hinton represents,—for such purposes as they are engaged in.* .
I propose now, sir, to show that these premonitory bodings of ill faith have been carried into fulfilment. In the very -first
case which has occurred under the treaty of a demand by this Government for surrender of criminals who chanced to be
slaves, the principles promulged in the British Parliament by the British Ministry have been applied. The decision of her
judges has been made in echo of the judgment of her ministers. The case presented in the message now before the
House, is simply and succinctly this: seven slaves owned in Florida, while in escape from the lawful authority of their
master, attacked the homestead of an unoffending citizen residing on the coast of Florida, (luring his absence, and
there, in the presence of one of his family, robbed the house of all its contents which they could bear away, going to the
fiendish extent of stripping an unresisting child of the very clothes which covered her, and leaving her, (a female child of
six years of age,) in a state of entire nudity. Upon the return of the father, and his discovery of the circumstances, he
started in pursuit of the party of robbers, and was found the next day by his neighbors a murdered corpse. The name of
the man was Geeren, a citizen of the State of New York, but recently removed to Florida, where he was engaged in the
peaceable business of an agriculturist and fisherman. By his death he left, in unprovided poverty, a family of
'To the Right Hon. the Earl of Aberdeen, &c.
27 New Broad Street, Dec. 6, 1843.
Mr Lord: I have the duty of transmitting to you an extract of a letter from the Rev. Joshua Leavitt, dated Boston, November 15, 1843, relative to
the case of the seven slaves who have recently arrived from Florida at Nassau. Although it is probable that your lordship may already be in
possession of the facts through official channels, it scarcely seemed right to withhold from * the Government the contents of Mr. Leavitt's
letter, on a matter of such extreme and critical importance. A case of that class concerning which the British public have felt such intense
anxiety, and concerning which, also, the British Government have given such distinct and reiterated pledges, has now occurred; and the
eyes of nations—it might also be said, the eyes of the world—-will be fixed on the proceedings which are taken with respect to it. That the
slaveholders will press the surrender of the parties with an unbridled impetuosity, cannot be doubted ; and as little, I trust, may it be
doubted that the attitude taken by the British Government will be discriminating and firm. I have the honor to be, &c, J. H. HINTON.
Foreign Office, Dec. 20, 1843.
Sir: I am directed by tho Earl of Aberdeen to acknowledge the receipt of your letter of the 6th instant, and its enclosure, respecting seven
slaves said to have recently arrived at Nassau from Florida, and to have been claimed by the Government of the United States as prisoner
fugitive from justice under the treaty of Washington. I am to inform you, in reply, that her Majesty's Government will not fail to give their
attention to the proceedings which may be had with regard to these slaves, in order to secure the due execution of the treaty stipulation,
under which they are claimed.
I am, sir, your most obedient humble servant, CANNING.
To J. H. Hinton, Esq.
orphans. These felons afterwards succeeded in making good their escape, by reaching a British vessel, which took
them into the British port of Nassau. A requisition was regularly made by this Government, through the British Minister
here for their surrender. The demand, thus regularly made, was transmitted by a civil officer of the United States—the
marshal of the district in which the offence was committed—who carried with him what I shall show to have been ample
evidence to justify their surrender. The evidence carried over to Nassau by the officer in support of the formal demand
of the Government, consisted of two indictments against each of the slaves, duly authenticated—one for robbery and
the other for murder; the authenticated process of the United States district court for their apprehension under these
indictments, and two respectable and responsible witnesses to identify the criminals. Now, what did good faith require
upon this state of facts? Evidently the prompt surrender of them. But if it was even doubted by the British Court whether
the evidence was sufficient to justify surrender, surely it was sufficient—abundantly sufficient, if good faith were
contemplated, for the arrest and detention of the criminals until further proof could be sent for. But, on the contrary, so
far were the authorities there from arresting, or seeking, by reasonable action, to give effect to the tenth article, that a
public meeting was permitted to be held under the very nose of the court, at which resolutions were passed declaring a
determination to resist the surrender, even if the authorities should yield. Well, the court, responding to the suggestions
made in the British Parliament, pronounced a decision, upon grounds which brings us at once to a trial of the soundness
and good faith of the interpretation sought to be given by the British Government to this article. The material part of the
decision is this :
"An indictment per se can never be received as evidence. It is not enough for us to know that the American jury thought the parties guilty: we
ought to know the grounds upon which they thought them guilty. What may constitute the crime of murder In Florida may be very far from
doing so according to the British laws, or even to the laws of the Northern States of America. By issuing a warrant, then, to apprehend the
parties in virtue of these indictments, we might be doing so on evidence which would not justify the apprehension by true British law, and
should thereby be proceeding in direct violation of the act."
Two important points are made in this decision; first, that an indictment per se cannot be accepted as evidence to justify
arrest and surrender of a criminal; and, secondly, that the British authorities have a right to test, by their own laws, the
criminality of the acts charged against the fugitives. And the court very plainly intimates that murder or robbery,
committed by a slave to facilitate his escape, would not be regarded as murder or robbery within the treaty.
Upon all these points I join issue with the British court and nation. I dispute them all, as unfounded in law, inconsistent
with the terms and intent of the treaty, and violative of good faith and international duty. If any other conclusions than
those I come to were at all admissible, it would indicate but the more clearly the treachery in which this provision was
conceived, and the more imperatively call for its abrogation, as due to the dignity of the nation.
[Mr. Levy was proceeding to sustain his positions, when the expiration of the hour arrested him. He publishes what he
designed to say, in the shape of a statement of the case and argument]
To the foregoing remarks; being a statement of the facts of the case and consideration of the legal questions involved.
*The facts of the case appear to be as follows:
Seven slaves, owned in St. Augustine, Florida, fled from that place in a boat, which they stole for the purpose. After
being some time at sea they reached Cape Florida, in the bay of which they were seen several times, the boat being
identified by a person who knew it well
While in that neighborhood, one of them met the son of Mr. Geeren on the beach, and robbed him of the clothes which
he wore. A day or two afterwards these negroes went to the house of Mr. Geeren, where they found his daughter, a
young girl of six or seven years of age. They threatened to kill her if she made any noise, and proceeded to rob the
house of such of its contents as they pleased, stripping the little girl also of her clothes.
Geeren was absent at the time, fishing. Upon his return and discovery "of what had occurred, he armed himself and
started in pursuit of the robbers. No more was heard of him, until his murdered body was found by a party who went in
John H. Geeren, the person murdered, was a citizen of the State of New York, who had, shortly before his murder,
migrated to Florida,
The boat with these negroes was seen several times in the neighborhood of the place, after the occurrence, by
individuals who were unable to attack or arrest them. As soon as aid could be sent for, pursuit was made, but they
succeeded in escaping, and after being at sea some days, fell in with a British vessel, which carried them into Nassau.
The public newspapers at Nassau announced the fact of their arrival, specifying the place from which they came, and
the owner's name.
No other negroes were in the neighborhood of the scene of the robbery and murder. The boat in which they were was
identified as the boat taken from St. Augustine, and the number seen on board of her corresponded with the number
that eloped. The negroes taken on board the British vessel were in a boat answering the description, came last from
Cape Florida, and acknowledged themselves to have fled from St. Augustine.
The fact of their presence in Nassau, and of the charge to which they were subject, were notorious there before the
demand was made; and a public meeting was held, at which it is stated several thousand persons were present, and by
which resolutions were passed, declaring that, if the authorities of the Island surrendered them, they should not be
At the last November term of the United States Court for the Southern Judicial district of Florida, held at Key West, the
Grand Jury, after full investigation into the facts, returned indictments against each of the negroes for murder and
robbery, and process issued fur their arrest.
A requisition was made by the President upon the British Government, through her Minister here, which was transmitted
to the Governor of the Bahama Islands, by the hands of the United States marshal of South Florida, who was authorized
to receive the criminals. He carried with him authenticated records of the indictments and warrants, and two respectable
gentlemen as witnesses to identify the accused.
Such are the general details of the case, stated as accurately and fairly as my present information enables me.
The only facts, however, which are, in my opinion, material to the question, are the following:
Indictments were found by a Grand Jury, having jurisdiction, against seven persons, subjects of the United States
Government, for the crimes of murder and robbery, committed within the limits of the United States. These felons* fled,
after the commission of the crimes alleged to them, beyond the jurisdiction of the United States, and took refuge in a
part of the British dominions. By the treaty of 1842, between the Governments of Great Britain and the United States, it
had been provided that, upon mutual requisition, they would "deliver up to justice all persons who, being charged with
the crimes of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the
utterance of forged papers, committed within the jurisdiction of either of the high contracting parties, should seek an
asylum, or be found within the territories of the other."
These fugitives were "charged with the crime of murder," as well as with that of "robbery," "committed within the
jurisdiction of one of the high contracting parties," (the United States.) They had sought an asylum within the territories
of the other, (Great Britain,) and a requisition for their "delivery up to justice" was duly made by the authorities of the
United States upon those of Great Britain.
Up to this point there can be no dispute that the casus foederis under the treaty had arisen.
The treaty proceeds to add, as follows:
"Provided, That this should only be done upon such evidence of criminality as, according to the laws of the place where
the fugitive or person so charged should be found, would justify his apprehension and commitment for trial, if the crime
or offence had been there committed."
The evidence of criminality offered to the British authorities in support of the demand, consisted of indictments regularly
found by a Grand Jury of the United States, of which Government the fugitives were the subjects, and from whose
jurisdiction they had fled, and the process issued for their arrest. Of their identity no question was raised; it being well
understood that the evidence necessary for that purpose was in court, ready to be produced.
The court refused to apprehend these fugitives, thus charged; and the marshal returned without a surrender of them to-
him. The grounds alleged by the court in justification of this refusal to apprehend, are—,
1. That "an indictment per se can never be received as evidence upon which to commit."
2. That "what may constitute the crime of murder in Florida, may be very far from doing so according to the British laws,
or even to the laws of the Northern States of America;" and therefore, that they have the right to examine into the facts,
and judge the criminality for themselves; or, in other words, to test the criminality of the acts charged by their own laws.*
As a separate and distinct proposition, the first ground taken is, very clearly, I think, without foundation in law.
But if the construction of the treaty which the last ground implies is correct, then the indictment, it may be conceded,
would be insufficient evidence for the surrender.
I shall proceed to consider the proposition that an indictment is insufficient evidence per se to "justify apprehension and
commitment for trial," as a substantive question in British law.
The broad ground taken by the court at Nassau, to wit, that " an indictment per se can never be received as evidence,"
is at once and flatly refuted by the practice and law of Great Britain, as stated by Chitty, a British law writer, in his
Treatise on Criminal Law. The text reads thus—process for arrest after indictment being the subject:
"If the assizes or sessions are over, and no bench warrant has been previously applied for, then & warrant from a single judge or justice of
the peace may be obtained; and in order to make the application effectual, it must be grounded upon the certificate of the clerk that the
indictment has been found against the defendant, upon which the warrant will be granted."—Ch. Cr. L. 342, 340.
In Mayhew vs. Parke, T. R. 110, will be found a case in which Judge Kenyon issued a warrant for the apprehension of a
person, upon its being certified that an indictment had been found at a general session of Oyer
* OPINION OF THE COURT.
Nassau, December 29, 1843. By the "act for giving effect to a treaty between her Majesty and the United States of America, for the
apprehension of certain offenders," it is enacted that, upon warrant given under the hand and seal of the officer administering the
government of any Colony, &c, it shall be lawful for any justice of the peace, or other person having power to commit for trial persons
accused of crimes, to examine, upon oath, any person or persons, touching the truth of the charge made against such offenders; and upon
such evidence as, according to the laws of her Majesty's dominions, would justify apprehension, &c, of the person so accused, if the crime
of which he or she shall be so accused had been there committed, it shall be lawful for such justice of the peace, or other persons having
power to commit as aforesaid, to issue his warrant for the apprehension of such offender.
Had any such evidence been offered to us, we should, of course, have considered ourselves bound to receive it, and to issue our warrant
for apprehending the offenders. No viva voce evidence, however, of any kind, touching the charge, is offered to us, but we are presented
with certain indictments, which, it is stated, have been found by a Jury in Florida.
Now, it is provided by the second clause of the act, that, in every such case, copies of the* depositions upon which the original warrant was
granted, certified, &c, may be received as evidence, but we are furnished with no such copies of depositions. An indictment per se can never
be received as evidence: it is not enough for us to know that the American Jury the parties guilty; we ought to know the grounds upon which
they thought them guilty. What may constitute the crime of murder in Florida, may be very far from doing so according to the British laws, or
even to the laws of the Northern States of America. By issuing a warrant, then, to apprehend the parties in virtue of these indictments, we
might be doing so on the evidence which would not justify their apprehension by the British laws, and should thereby be proceeding in
direct violation of the act.
We profess and feel the utmost willingness to carry the act into effect, and to aid and assist, by every means in our power, in the
apprehension of offenders under the treaty; but being furnished with no kind of evidence against the parties, except the indictments alluded
to, which neither the act itself nor accordance with our own laws would justify us in receiving, we must consider ourselves as totally without
evidence, and, however reluctantly, refuse to issue the warrant.
J. C. LEES, Chief Justice.
R. SANDERLAND, Associate Justice
P. Z. GAHAN, Associate Justice.
and Terminer against him for perjury, to which indictment he had not appeared. And not only is an indictment evidence
per se for this purpose, but a warrant, even, is often, in British practice, per se evidence for arrest, as is exemplified by
the backing of a warrant from county to county. The court, then clearly erred in their law.
But let us look to the reason of the thing, and see whether, by the general principles of the British law, an indictment
found may, and should, properly, be regarded as sufficient to justify arrest.
A warrant to apprehend and commit is issued by a British magistrate previous to indictment, upon what proof? Upon "an
oath of circumstances affording a reasonable suspicion of the guilt."—Ch. Cr. L. 34. The magistrate makes examination
upon oath, "to ascertain that a felony or other crime has actually been committed, as also to prove the cause and
probability of suspecting the party "against whom the warrant is prayed."— lb. 33.
By the rule of the British law, then, proof of " a reasonable suspicion" is the justifiable evidence upon which
apprehension is made by a British magistrate. And this proof to show that there is "cause and probability of suspecting"
is made by ex parte affidavits. And if, upon the examination, " there be an express charge 4)f felony, on oath, against
the prisoner, though his guilt appear doubtful, the justice cannot wholly discharge him, but must bail or commit him."
"And in modern practice, though exculpatory evidence is received at the instance of the prisoner, and certified with the
other depositions, unless it appear in the clearest manner that the charge is malicious as well as groundless, it is not
usual for the magistrate to discharge him even when he believes him to be altogether innocent."—Ch. Cr. L. P. 89.
Now, then, instead of a " reasonable cause of suspecting," does not the indictment furnish an absolute cause of
suspecting the guilt of the accused? Is it not of a higher grade and quality than mere affidavits for arrest? Is it not an
express charge of felony on oath? Can the charge of twenty three of the most respectable citizens of the vicinage, made
after full examination, and acting upon the responsibilities of an oath, be liable to impeachment, as "groundless and
But I will now show that, by the British law, an indictment was tire only evidence upon which an arrest could be made,
until, by encroachment, the practice of arresting before indictment upon preliminary examination grew up; that it was an
indictment alone which was considered to afford such probable evidence of guilt as to justify arrest.
"There seems to be considerable difficulty (says Mr. Chitty) in precisely ascertaining in what cases a party suspected may be apprehended
before a bill is found against him. It having been enacted by Magna Charta that no one should be taken or imprisoned but by the lawful
judgment of his peers, or by the law of the land, it was for some time insisted that no one could be deprived of his liberty for any offence,
until after the finding a bill against him by a grand jury, which afforded probable evidence that he was guilty. All the deviations from this rule
have been considered as encroachments upon the common law."—Ch. Cr. L. 12, 13.
Of so much higher degree and quality is an indictment than any other evidence of probable cause to suspect, that after
finding of an indictment for murder, there is no power to bail. "A man charged with murder by the verdict of the coroner's
inquest may be admitted to bail, if it appear by the depositions to amount only to manslaughter, though not after the
finding of an indictment by the Grand Jury."—Ch. Cr. L. 129. Black. Com. 296.
The rationale of the practice which assigns to the indictment this superior weight and value as evidence for
apprehension and commitment, will be sustained by a comparison with the ordinary and inferior rule of warrant upon
affidavit. In the first place, the inquisition is had before twenty-three of the best and most intelligent and respectable
citizens of the neighborhood in which the offence was committed, acting under the guidance of a court of high functions,
with the advice of able counsel in the law, and with the impressive sanctions of a grand juror's oath fresh upon their
minds. While, on the other hand, in the case of arrest before indictment, the whole proceeding is conducted by a single
magistrate, upon his own responsibility and discretion, unaided by advice, and without any check upon his prejudices or
misjudgment. In the next place, the grand jury prefers a bill only upon a clear conviction of the guilt of the accused; while
a justice acts upon reasonable suspicion of guilt only, and cannot discharge the accused, if a charge of guilt is made
upon oath, *even when he believes him to be altogether innocent."
Mr. Chitty, in discussing the proof necessary to an indictment, thus lays down the rule: "Formerly, indeed, it was laid
down that the grand jury ought to find the bill if probable evidence were adduced to support it, because it is only an
accusation, and the prisoner will afterwards defend himself before a more public tribunal. But great authorities have
taken a more merciful view of the subject; and, considering the ignominy, the dangers of perjury, the anxiety of delay,
and the misery of a prison, have argued that the grand inquest ought, as far as the evidence before them goes, to be
convinced of the guilt of the defendant. What was, therefore, anciently said respecting petit treason, may be applied to
all other offences: that since it is preferred in the absence of the prisoner, it ought to be supported by substantial
testimonies."—Ch. Cr. L. 318. 4 Black. Com- 303.
Such is the practice of grand juries in the present day, and their verdict is justly regarded as the highest evidence that
can be made of probable guilt.
The superior, and, indeed, conclusive effect of an indictment, as evidence upon which to arrest and commit, is shown in
the practice of the American Government, by the act of 1793, respecting fugitives from justice. The Constitution
provides for the mutual surrender, by the States, of fugitives from justice. For the purpose of carrying this clause into
effect, the act of February 12, 1793, provides for the surrender whenever the Executive of a State shall demand a
person as a fugitive from justice, and shall, moreover, produce the copy of an indictment found, or an affidavit made,"
But, disregarding all other considerations, the terms of the treaty are decisive upon the question of the sufficiency of an
indictment. No person will dispute the fact, that every British court, in which an indictment is found for an offence
committed within British jurisdiction, is bound by British law to issue thereupon process for the apprehension and
commitment of the accused for trial, if he be not already in custody, or to remand him for trial if he be in custody. The
indictment, then, is, in that court, "the evidence of criminality" which doth "justify his apprehension and commitment for
trial." The provision of the treaty requires "such evidence of criminality as, according to the laws of the place where the
fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or
offence had there been committed." The fugitives in this case were found in the British dominions. Now, the simple
question is, would not an indictment, if the crime charged had been committed in Great Britain, be such evidence of
criminality as, according to her laws, "would justify apprehension and commitment for trial?" Would not their courts be
obliged to follow up an indictment by process, and apprehend and commit the defendant for trial? What doubt, then, can
there be, that, upon the exhibition of an indictment rendered in a court of this country against a fugitive found in British
territory, for a crime or offence specified in the treaty, it is the duty of a British court to issue process, and apprehend
and surrender the defendant for trial? The British judge is plainly required by the treaty to give the same effect to the
American indictment as though the offence charged had been committed in Great Britain, and the indictment had been
found in his own court; and that effect would be the obligation, to issue process, and apprehend the offender for trial—
trial where the offence was committed.
The ridiculousness of the pretence that a record of the finding of a grand jury is not sufficient evidence to justify
apprehension, but that the judge must, in all cases, examine testimony for himself, can be made quite glaring by a
reflection such as follows: Suppose a culprit to have been tried in this country, and convicted ; and after sentence, but
before its execution, he escape, and seek asylum in British territory: will any man assert the absurdity that a record of
the conviction would not be sufficient evidence of criminality to justify reclamation of the fugitive? Would not the judge be
laughed at who should declare, in the words of the Nassau court, "it is not enough for us to know that the American jury
thought the parties guilty; we ought to know the grounds upon which they thought them guilty;" and should require proof
of criminality dehors the record of conviction? Or would that nation be regarded as acting in good faith, which declined
to surrender a convict felon upon the production of the record of conviction and proof of escape? And yet the same
principle which would govern such a case, covers the one now under review. The record of conviction would carry with it
no depositions or detail of facts beyond the statement of the indictment. The fact of conviction would be the only
evidence before the judge, and he would arrest and surrender upon that evidence, because a conviction is, in British
law, such evidence as would justify commitment/or punishment. Why, then, should not the fact of indictment be sufficient
evidence for apprehension and surrender for trial, it being likewise in British law such evidence as justifies commitment
for trial? For, be it remembered, the degree of evidence required by the 'treaty is such only as "would justify
commitment/or trial'* (which an indictment justifies,) and is a lesser degree of evidence than would justify conviction.
I come now to the construction of the treaty implied in the opinion of the court, and claimed by the British cabinet—
namely, that the criminality of the acts charged are to be tested by the British laws, and the surrender only made when,
by their own laws and definitions, the acts committed by the fugitive would constitute a crime of the description of one of
those enumerated in the treaty.
If such were the meaning of the treaty, then I agree that the indictment or finding of a jury could never be sufficient basis
for a demand and reclamation. But can, such be the legitimate construction? Impossible.
The clause of the treaty is as follows:
"Article 10. It is agreed that tho United States and her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers
or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to
commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, committed within the jurisdiction of either, shall
seek an asylum, or shall be found within the territories of the other: Provided, That this shall only be done upon such evidence of criminality
as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and
commitment for trial, if the crime or offence hail there been committed; and the respective judges and other magistrates of the two
Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the
fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of
criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the
duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of
such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and
receives the fugitive."
The two Governments are to make mutual surrender—of whom? Of all persons who, being charged with the crime of
murder, &c, arc found within their respective territories. With what limitation? That such evidence of criminality (meaning
such evidence of having done the act charged) be produced, as would justify apprehension and commitment/or trial, if
the offence had been committed where they are found, (meaning, if a crime of similar degree or denomination had been
committed there.) The limitation clearly refers to the degree and form of evidence necessary to apprehension, and not
to such as would be necessary to show the criminality of the accused. It must be such evidence as would be sufficient to
justify commitment for trial in a case of similar denomination in the country where found—not such as would be required
to show that the crime charged was a violation of the law as existing there. It must be such as in a case of crime,
regarded as murder, &c, in the country where* found, would justify arrest—not such as would establish the crime
charged to be in law a murder there.
The main purpose of the treaty is expressed in the body of it, to wit: that all persons charged with the crime of murder,
&c, by either nation, and flying to the territories of the other, should be delivered up to justice; not persons who have
committed the crime of murder, &c, nor persons guilty of the crime of murder, &c., but persons "charged'" with either of
the crimes specified. That is the contract—the stipulation. Now, how far does the proviso, appended to that agreement,
qualify it? Certainly not to the extent of defeating it. It must, if possible, be so construed as to consist with the stipulation
to which it attaches. It was meant to qualify, not to alter, or pervert, or defeat the original purpose. The intention could
not have been to depart, by the proviso, from the engagement, as stated in the body of the clause; and the
construction, therefore, ought not to be such as would make it repugnant to the proviso of the article, or render the
article inconsistent and destructive of itself. The purpose of the article was to stipulate the delivery up to justice of
persons charged with crime. That constitutes the leading feature—the gist of the stipulation. The proviso means only to
guard that stipulation from abuse. "We will surrender," says one nation to the other, "persons charged by you with the
crimes of murder, &c; but you must satisfy us first that the charge is not a more pretence." This was all right; and, for this
purpose, no more reasonable rule,could be devised than that adopted by the proviso, it being well understood by both
nations that "a reasonable cause of suspicion" was sufficient to satisfy that rule. The object of the limitation or proviso
was to prevent an abuse of the treaty by its employment as a means to recover persons for offences not comprehended
in it; not to narrow the construction of the terms used to designate the offences provided for, by reducing them to the
definitions peculiar to the place where the fugitive might be. It was not meant to limit or impair the force of the words
used in the stipulation, and which looks to the charge as the sufficient ground for the delivery, but only to furnish a
check whereby the right of reclamation might be limited in practice to the six offences enumerated. Otherwise, but for
this proviso, if a person had committed treason or larceny against one of the Governments, and fled to the other, the
offended country would have had only to say : "We charge this person with murder, and demand his surrender," and he
must have been delivered up, and returned to be tried for treason or any other offence he may have committed. It was
as a check upon such abuse ; it was to confine the treaty to the six offences enumerated, that the proviso was added;
and, for this purpose, it was a reasonable provision, and was couched in the only sensible phraseology proper to meet
the object. But had it been designed to give to the proviso the effect claimed by Great Britain, what would have been its
most natural language? Something like the following
"Provided, That no person shall be delivered up but for acts which, if committed in the country where he is found, would constitute one of the
crimes specified herein."
The treaty clearly meant that persons charged with murder, &c. in the country from which he fled, and by consequence,
with murder, &c, as understood and defined in that country, should be surrendered ; but required that a reasonable
ground should be shown for the charge, by proof of a reasonable cause of suspicion. The words of the proviso bear this
construction by a natural and easy interpretation; and it is that which is most consistent with the purview of the clause to
which it is appended. Any other construction would be inadmissible, because of its inequality, as well as absurdity and
With the construction claimed by Great Britain there could never be equality between the two nations in the operation of
the provision, unless there was a perfect identity and similarity in the criminal code and practice of both, nor any
regularity in its operation, unless the policy and legislation of the two countries were unalterably fixed, and never to be
amended. What may constitute forgery or arson in one country might not in the other; and what constituted these crimes
to-day, might not tomorrow. Nor could there be any permanent or definite obligation in the provision, for it might be
made to mean everything or nothing, at pleasure, and would be open to constant evasion, without violation, at the
caprice, policy, or perfidy of either party.
Let us take up, for illustration, one or two other enumerated crimes: Arson, at common law could only be predicated of
the burning of a dwelling-house, or outhouse parcel of it. The statutes in Great Britain extend the definition so as to
include innumerable other cases—such as the burning of stacks of corn, granaries, cotton-mills, timber, arsenals, &c.
So, also, in this country, the statutes of twenty-six different States give infinite variety to the definition of arson.
Forgery, at common law, was a mere misdemeanor. The statutes make it felony, and give to it an inconceivably infinite
extension of application.
Piracy, at common law, was confined to those acts of robbery and depredation upon the high seas, which, if committed
upon land, would have amounted to felony. By sundry statutes, nine or ten other acts, not comprehended in that
definition, are declared to be piracy in England. And so also in this country, many acts, beyond the original meaning, are
declared to be piracy by special statutes.
And not only is there this variety of definition as between the two w countries, but the separate legislation of twenty-six
States makes the conflict and confusion still greater.
Now, how would it be possible to give any useful, sensible, or practical operation to the treaty, if only such acts would
constitute arson, or forgery, or piracy, within its meaning, as were so denominated at the place where the fugitive was
found. One of the acts constituting arson in England, might not be arson in the State of New York. Another of the
varieties of British arson, might not be arson in South Carolina; and so in each of the other States. Thus it might be, that
in one or other of these States a safe sanctuary would be found for persons committing arson in any of its varieties in
Great Britain. So with the other offences. And so, too, upon our part, many acts of a most dangerous or hurtful
character, and very much conflicting with the policy of the nation, or of some particular State, might be, in Great Britain,
very much in conformity with her policy, and be no offence at all: and in all such cases the treaty would be wholly
inoperative. For instance: in Great Britain it is punishable with death to forge a marriage license, or to forge the stamp
on playing cards, plate, paper, &c. It is also forgery, and punishable with death, to make paper with the water-mark
"excise" therein. Now, these acts may be all very detrimental in* their relation to the policy of Great Britain, and therefore
proper to be dealt with as crimes; but they are not crimes in any of our States; and according to the British construction,
fugitives charged with these offences, or the hundred others which in Great Britain constitute forgery, could not be
surrendered. In England, it is consistent with her policy to encourage the circulation of private bank notes; and the
alteration or counterfeiting of them may be therefore a forgery very necessary to be suppressed. In many of the States
of this country the circulation of private bank notes is expressly prohibited, and it would not be forgery to counterfeit
them. Wow a person, after committing what would be a very serious and dangerous act of forgery in England, might, by
their construction, fly to one of these States, and find secure asylum.
The construction which claims that the criminality of the acts charged must be tested by British law, when the fugitive is
found in British territory, if true at all, must, it seems to me, be true to its full extent. The fugitive must be criminal by
British law. And this would lead to the absurdity that the tenth article of the treaty would be wholly inoperative. As thus:
what is a crime, considered with reference to human government? It is an offence against the laws made to preserve the
public and social rights. Now, a violation of a law of America forbidding homicide, is no violation against British law, and
no British court could take cognizance of it. Why? Because the laws of Great Britain do not forbid homicide in America;
and a homicide in America is, therefore, no crime in Great Britain. If, therefore, a person commit a homicide in America,
could he be committed for trial in Great Britain? No : because he has offended no law of Great Britain, and could not be
tried there! Could he be surrendered for trial in America? According to, their construction, no: for as he could not be
apprehended and committed for trial there, (the violation of the American law which forbids homicide not being criminal
by the laws of that place,) he could not be surrendered for trial here. The treaty could therefore never operate.
Again: Suppose a person in British territory were to murder a man in American territory—as, for instance, a person
standing on the Canada side of the boundary, and shooting a person in Maine: could he be surrendered? By the British
construction he could not. He has not killed any person within British jurisdiction, and could not therefore be tried for any
offence there. He is not criminal by their laws; for their laws do not forbid murder in America. Nor could he be delivered
up to be tried here; for the act was committed while he was in the country in which he was found, and it was not a crime
by their laws.
All these absurdities (extreme applications of their construction I admit) flow from the construction that the laws of the
country where found must be the test of the criminality which is to determine the duty under the treaty.
But the construction claimed by Great Britain is further inadmissible, because it is contrary to the laws of nations, and
also to British law.
The extent to which the laws of nations go in respect to the obligation to surrender fugitives from justice, has been, in
some degree, a question of discussion. The existence of the obligation is denied by Lew, the extent of it only being
disputed; and those who deny the obligation, admit the practice, but rest it upon comity, to be exercised upon discretion,
or regulated by treaty. It is well settled, however, that the protection of an offender justifies war. Grotius asserts the
obligation to its fullest extent; but concedes that, in modern times, the right of demanding fugitives has, in most parts of
Europe, been confined, in practice, to crimes that concern the public safety, or which were of great atrocity; and that
lesser offences were rather connived at, unless some special provisions, as to them, existed by treaty. Vattel, Martens,
Heineccius, Burlamaqui, and Rutherforth, concur with Grotius in regarding it as a strict obligation, and constituting a part
of the law and usages of nations. Voet remarks that, under the Roman empire, this right of having a criminal remitted for
trial to the proper forum criminis, was unquestionable. In Great Britain the law of nations has been decided to be a part
of the common law of the land, and the doctrine of Grotius has been fully recognised and practised upon by their courts,
whose decisions may be regarded as declaratory of the public law. In the cases of Hutchinson, 3 Keb. 785; of Col.
Lundy. 2 Vent. 314; of Kimberly, Str. 848; of Campbell, 1 Ves. 246; of Mure vs. Kaye, 4 Taunt 34, the doctrine of the
obligation to surrender fugitives from abroad has been fully admitted and practised upon. Wynne,
in his treatise on the law and constitution of England, (Eunomus, Dialog. S, s. 67,) observes, that "if, from the very
nature of society, subjects are answerable to their own nation for their criminal conduct, by the law of nations they may
be justly demanded of foreign States to which they fly, and the refusal of delivering them up is a just cause of war." And
he observes further, that, to prevent protection of fugitives by clauses in a treaty, only operates as a recognition, not a
creation, of right. In the case of Ball, before the court of King's Bench in Montreal, Ch. J. Reid implicitly asserts the
obligation to surrender, as a part of the laws of nations, and practice of Great Britain. His opinion at large is published
in American Jurist, 297.
In this country, the question as to the extent and imperiousness of the obligation may be regarded as open. In the case
of Washburn, (4 Johns. Ch. R. 106,) Chancellor Kent, after reviewing at large all the authorities upon the subject, and
referring to the writers upon public law, and to the decisions of British courts, decided that "it is the law and usage of
nations to deliver up offenders charged with felony and other high crimes, and who have fled from the countries in which
the crimes M ere committed into a foreign and friendly jurisdiction." In the case of Deacon, Judge Tilghman declined to
surrender, and took ground against the duty of delivering up fugitives as a matter of obligation. But even there, the case
turned rather upon the question of the right of a court to decree surrender without demand of the Government of the
fugitive, and requisition from the executive authority. The application for surrender was, in that case, altogether at the
instance of a private individual. In the case of Jose Ferreira Jos Santos, 2 Brockenbrough, 492, the inclination is with the
Pennsylvania case. In the Supreme Court of the United States the question is an open one. If came incidentally under
discussion in the case of Holmes, 14 Peters' R. 540. In that case, the Governor of Vermont had decided, after full
hearing, in favor of the duty to surrender Holmes, who was demanded as a fugitive from Canada. The case was brought
up to the Supreme . Court upon the question of the right of a State to surrender a fugitive, it being contended that, by
the adoption of the Constitution, the power of surrender vested in the Government of the Union exclusively. The court
having divided equally upon a preliminary question of jurisdiction, the case was dismissed without decision upon its
The current of practice, so far as the Executive Department of the Government is concerned, has indicated an
inclination against the acknowledgment of the duty of surrender as an obligation. On the occasion of a request made by
the Governor of South Carolina, in 1791, that the President of the United States would demand of Governor Quesada
certain persons who had committed crimes in that State, and fled to Florida, Mr. Jefferson declined to make the demand,
upon the "ground that no authority had been given to the executive by the laws of the United States to deliver up
fugitives, and that, therefore, as reciprocity could not be practised, he thought it improper to demand a surrender from
the Governor of Florida. In giving his reply, he evidently exhibits an inclination against the policy. So, in the year 1793, in
answer to an application from Mr. Genet, the French Minister, Mr. Jefferson exhibited the same inclination. With the
instructions given by Mr. Jefferson to Messieurs Carmichael and Short, Commissioners to treat with Spain, in 1792, there
is a paper setting forth the views of the Administration in respect to the subject of the surrender of fugitives. The paper
is entitled "Heads of considerations on the establishment of Conventions between the United States and their neighbors,
for the mutual delivery of fugitives from justice;" and is published in Vol. 1, American State Papers, Foreign Relations.
The opinion there expressed is, that murder is the only crime of sufficient atrocity to justify the surrender of a fugitive for
punishment; all other offences being sufficiently punished by voluntary exile. Mr. Monroe, as Secretary of State under
Mr. Madison, in his instructions to our Commissioners at Ghent, asserts the inclination of his opinion against the
surrender of fugitive criminals, "except in compliance with treaties or by favor." And it must be conceded that the current
of popular sentiment in this country is against the practice of surrender, except by treaty or as a comity of nations. The
modern practice of Europe, as indicated by their laws and conventions, is in favor of a liberal recognition of the duty of
Upon a fair review of the whole subject, the conclusion is, that the practice of surrender of fugitives from justice, upon
the demand of the - country whose laws they have violated, is a national duty, especially in cases of atrocity. That the
principal difficulty, in the absence of positive agreement, consists in drawing the line between the class of offences to
which the usage of nations applies. That, as between those who differ as to the duty, the question is one principally of
degree; the majority regarding it as a positive and strict obligation, the others as resting upon comity, and to be
regulated in practice by a just national discretion or by convention. The moral duty to surrender is well founded in
general principles. Nations are bound to observe towards each other all the duties which the safety and advantage of
society require. They are bound to respect and sustain the existing institutions, and to contribute to the security,
peacefulness, and happiness, of each other, so far as their own domestic action may, without injury to themselves, bear
upon these ends. They are bound to protect and promote the interests of humanity and society in all the world; and this
is best done by sustaining the existing order of society, and by aiding all others in punishing and preventing violations of
the internal peace and policy.
But it is immaterial whether the practice of surrender is based upon strict obligation, or national comity only. When once
it is regulated by treaty, defining the crimes to which the obligation, or the comity, shall extend, or be limited, it is a
recognition of the law of nations to the extent of the provision, and is subject in its operation to the usages of nations.
And what does this usage demand? Bartholus, cited in Henry on Foreign Law, says that the fugitive criminal must be
tried by the laws bf the place where the crime was committed. "Delicta punhmtur juxta mores loci commissi delicti, et non
loci ubi de crimine cognoscitur." Grotius (book 2, ch. 21, sec. 6) says: "If the acts of which refugees and suppliants are
accused, are not prohibited by the law of nature or of nations, the matter must be decided by the civil law of the country
from which they come;" and the same will be found to be the spirit of all writers upon public law. It is evident, then, that
the construction contended for by Great Britain would be contrary to the laws and usage of nations, and cannot be
regarded as correct, if the words of the treaty will admit of a construction consistent with those laws and usages; which
they clearly do.
But it is contrary also to the British law and practice, to which it is fair to make reference in giving construction to a
stipulation to which that Government is a party, and which was intended to be in aid of the law of nations. In the case of
Mure vs. Kayc, (4 Taunt. R. 43,) Heath J. says: "It has generally been understood that wheresoever a crime has been
committed, the criminal is punishable according to the lex loci of the country against the law of which the crime has been
committed, and by the comity of nations, the country in which the criminal has been found has aided the police of the
country against which the crime was committed, in bringing the criminal to punishment." The practice in Great Britain to
look only to the law of the place where the offence was committed as a test of the criminality of the acts charged, and of
the consequent duty to surrender, was strongly illustrated in the case of Kimberly, (2 Str. 848.) Kimberly was
apprehended in England on the charge of feloniously marrying Bridget Reading, in Ireland, contrary to an Irish act of
Parliament. He was surrendered, and, upon trial in Ireland, was condemned and Executed. Here, then, was a surrender
made in deference to a law of the place, which made it a felony, punishable with Death, to marry an heiress; and the
British court considered that if the law of the place declared that act to be a felony worthy of death, it made it atrocious
enough to bring it within the rule of national law. This case was decided while Ireland was a distinct and separate
kingdom, and rested solely upon the principle, that to surrender fugitives guilty of crimes of high degree was an
obligation, and that the law of the place where the offence was committed must decide the degree of criminality in the
The inconvenience of the doctrine claimed by Great Britain is also against such construction. If they are correct, the
necessary consequence would be that a full trial must be had before surrender in every case of demand. Nothing short
of a full trial could ascertain the criminality of the fugitive, as tested by the laws of England. An American judicial charge
would not be sufficient, but a British judicial conviction (or what would be tantamount to it) would be required as the
condition of surrender.
The plain direction to which the construction claimed by Great Britain points, is the protection of Slaves from surrender
under the treaty. For this purpose, she seems willing even to violate a treaty—a treaty which is the most solemn and
sacred of national obligations—to violate it by pretending a construction impracticable, absurd, inconvenient, unequal,
and contrary to the laws of nations, and her own laws and practice. The object had in view by British statesmen, and the
British judges, is too clearly manifested to be mistaken or overlooked. The doctrine of Lord Palmerston is, that— •
"In no case where a slave was charged with the offence of murder or robbery would any English magistrate be justified in delivering him up
for trial, unless the offence he was charged with was one that was looked on as a murder or robbery"by the law of England ; and he
apprehended that any act that a slave might commit in resisting the coercion of his master could not amount to murder, and would not
justify a magistrate in giving up the fugitive."
And Lord Stanley, in reply, designed to assent to the doctrine, in asserting, as the view of the British Government, that
"no fugitive could, under the treaty, be surrendered as a murderer, unless his offence was such as our their) laws would
qualify with that epithet."
The British judges at Nassau say : "What may constitute the crime of murder in Florida may be very far from doing so
according to the British laws, or even to the laws of the Northern States of America."
The meaning of this is not to be mistaken. It is, that a slave may kill, rob, burn, forge, or pirate, to accomplish escape,
without being regarded as guilty of murder, arson, robbery, forgery, or piracy, by British law, and therefore without
liability to surrender under the treaty.
Let us examine the doctrine, and see how tenable it is.
If even the construction they contend for be admitted to be correct, British law will not sustain them in the consequence
they deduce from it. They must violate the treaty, not only in its construction, but they must violate it in fact—flagrantly
and wantonly violate it, and overlap British law in doing so, before they can reach their great purpose of protection and
encouragement to slaves, by sheltering them from the punishment due to them for murder, even " in resisting the
coercion of their masters," (as Lord Palmerston has it,) or for robbery, though " necessary for their escape," (in the
language of Lord Ashburton.)
In respect to murder, first: The construction they claim is, that the fugitive charged with murder shall not be surrendered,
unless upon such evidence as, in Great Britain, would justify commitment for trial. Now, admit that the criminality is to be
tested by British law; what is the rule in Great Britain? It is, that proof of a Homicide is all that is necessary for
commitment for trial; and that, the fact of the homicide being made to appear, and probable cause of suspicion that it
was done by the accused, there is no discretion but to commit. I cite their own authorities for this:
"If a person be killed by another, (says Chitty,) though it be per infortunium, or even se defendendo, which is not properly felony, yet the
justice ought not to discharge; for he must undergo his trial."—Ch. Cr. L. 89,
After commitment, he may be bailed, if the fact of the prisoner's being the slayer be matter of suspicion only, or if the
facts clearly show a case of manslaughter simply; but not even then after an indictment.
"A prisoner must be committed without bail, (says Blackstone,) if he be clearly the slayer, and not barely suspected to be so; or if any
indictment be found against him."— Blackstone, Com. 300.
"A man charged with murder by the verdict of the coroner's inquest (says Chitty, as before quoted) may be admitted to bail if it appear by the
depositions to amount only to manslaughter, though not after the finding of a grand jury."—Ch. Cr. li. 129.
The principle is too well settled in England, and in every other country which values the lives of its citizens, to need
authority in its support, that every man who takes the life of his fellow-man (whatever be the justification or excuse) must
undergo his trial. No British or American lawyer will gainsay it. And it is equally well settled that the trial can only be had
in the jurisdiction and vicinage where the killing happened; and that no trial can take place but in the presence of the
accused. Now, what is the necessary consequence of these principles? It is, that whenever a fugitive is charged with
murder, and probable cause of suspicion exists against him, he must be surrendered. No plea of justification or excuse
can be heard in resistance of the obligation. The British law imperative, that whoever commits homicide must undergo
his trial, and to that end must stand committed. He may, after commitment, under certain circumstances, be bailed out of
close prison, and be bound by recognisance to appear for trial; but this amelioration in favor of those accused of
offences in their own country, can have no effect in avoidance of the necessity to surrender, in the case of a fugitive;
because he can only be tried in the country from which he fled, and because the casus foederis arises whenever a
fugitive is Charged with the offence of murder, (and all who commit homicide are prima facie, in British law, guilty of
murder,) and sufficient evidence of criminality is exhibited to justify apprehension and commitment for trial, if the offence
had been committed there, (and that evidence, by British law, is simply the fact,of the homicide.) Show that a British
inhabitant has slain a man within British jurisdiction, no matter what the circumstances, and he must he committed for
trial. Show that an American fugitive has slain a man, no matter what the circumstances, and he must be surrendered for
trial. It would not save the British slayer from commitment for trial to allege, or even prove, that the act was "in resisting
coercion of a master," or even by accident, or misfortune. How, then, can any similar plea save the American slayer, who
is found in British territory, from surrender for trial ?" The law presumes every homicide (says Mr. Foster, a British
authority) to be murder, until the contrary appears."— (Foster, 255.) And the contrary cannot appear until the trial, for
"he must undergo his trial;" which word trial has a technical signification familiar to all. The treaty does not require that
the fugitive shall be guilty of murder, but that he be charged with the crime of murder; and, when so charged, he shall be
surrendered if the evidence be such as by the British law would justify commitment for trial; and such evidence is the fact
of the homicide. In the case, then, of a slave who slays any person, (master or other,) and flees to British territory, such
proof, by parole or otherwise, as establishes reasonable cause to suspect him of the act, is all that is required to sustain
the "charge" against him, and all that is necessary to oblige surrender; for it is all that is necessary "to justify
apprehension and commitment for trial," by British law. The circumstance »f slavery, of coercion, of excuse, or of
justification, cannot be heard until trial; and that trial can only take place in the country from which he fled. But where (as
in the case of the Nassau fugitives) an indictment had been found, the "charge" was judicially made, and the accused,
so far from being able to escape commitment for trial, by the British law, could not even have been bailed, though it had
been ever so clear that the homicide was se defendendo or even per infortunium, as Mr. Chitty declares.
And now as to robbery. I shall show that, by British law, its being *« necessary for his escape," as Lord Ashburton
expresses it, would be no excuse. Robbery is a felonious taking of money or goods, to any value, from the person of
another, or in his presence, against his will, by violence, or putting him in fear. This is the strictest definition of the crime.
Many British authorities give it a still more comprehensive signification. As for instance, Stanford (lib. i. c. 20) defines it
to be a " felonious taking of anything from the person, or in the presence of another, openly and against his will" leaving
out the ingredient of force. And Breton (lib. iii. fo. 150, b.) concurs. But the violence or fear need not be much. Any
circumstance of intimidation which prevents the exercise of our will to keep, Or prevent from being carried away,
anything of our own, or in our charge, is sufficient to satisfy the definition. The principal point to be regarded, for my
present purpose, is the felonious intent—the animus furandi. The taking, to be robbery, must be with felonious intent.
Lord Ashburton and Earl Aberdeen think that no taking which is necessary to the escape of a slave, can be regarded as
done with felonious intent, and cannot, therefore, be treated as a robbery. The language of Earl Aberdeen is: "If the
slave took a horse with him, or seized upon a boat,or, in short, appropriated to his use anything that was necessary to
his flight, such an act could never be held to establish an animus furandi." Now, is this British law? I apprehend, and so
contend, that it is not The animus, which constitutes criminality, relates not to the inducement of the taking, but to the
design of self-appropriation. The taking may be even necessary to save the life of the taker, and yet be felonious. The
"appropriation to his own use" (Earl Aberdeen's own words) is precisely what decides the feloniousness of the intent,
and establishes the animus furandi. It matters nothing how necessary to life or liberty the thing taken may be; if the
taking is with design "to appropriate to his own use," the taker is guilty of robbery. And to show this, I will refer to British
Mr. East, in his treatise of Fleas of the Crown, (p. 656,) in discussing what constitutes the felonious intent, or animus
furandi, necessary to larceny or robbery, thus explains it: " This inquiry may be best made by considering the defences
by which charges of this nature (larceny and robbery) are endeavored to be palliated or denied. These are,
"1. By a denial of the fact itself, or the party's participation in it.
"2. That the goods were taken upon a claim of right, or by act of law.
"3. By mistake or accident.
"4. As a trespasser, or wrongdoer, without fraud.
"5. By finding.
"6. By delivery of a third person, without knowledge of the theft by the taker.
"7. By delivery from or on behalf of the owner; or by a taking with his consent and approbation. "8. By taking upon
Now, of all these defences or excuses, the only one which can apply to the case stated by Earl Aberdeen, is that of
''taking upon necessity."
Of this plea of necessity, Mr. East thus remarks : (p. 698.) "The last excuse, or, more properly,palliation, which is
sometimes urged upon prosecutions of this nature, is, that the thing taken was for necessary food or clothing for the
body, in order to preserve life. This can never be admitted as a legal defence," &c. If, then, it cannot be admitted as a
legal defence that the taking was necessary to preserve life, a fortiori it is not where the necessity is only for escape
The extent to which this doctrine of the laws of England is carried out \n practice there, needs no stronger or further
illustration than is furnished in the case of Spencer, (2 East's P. C. 713). This case is thus reported: "The prosecutor,
Anderson, swore that, having in his possession corn belonging to other persons, the prisoner came to him, together with
a great mob marching in military order, and one of the mob said that, if he would not sell, they were going to take it
away; and the prisoner said, that they would give thirty shillings a load, and if he would not take that, they would take the
corn away; on which the prosecutor sold that for thirty shillings which was worth thirty-eight shillings. This was ruled to be
robbery, jailed the prisoner was convicted and Executed." Now, here was a starving man driven to extremity by a
barbarous monopoly of the very staff of life, compelling one of the infamous speculators upon human hunger to take a
reasonable price for the bread which w as necessary to preserve his life, and actually paying what was doubtless a large
price for it before taking it; and this man was, for this act, by British law, Hung! And with such a case upon their judicial
records, in illustration of the principle that, in English law, necessity does not justify robbery, what shall we think of the
pretence now asserted by the minister of Great Britain, that any act committed by a slave which was "necessary to his
flight," would not amount to robbery?
Let us take the case of the Nassau fugitives. These felons, while in their flight, enter the house of Mr. Geeren, rob it of
provisions, clothing, &c, which we will suppose to have been necessary to sustain and comfort them on their way, and»
assist their escape. Here is the case stated by Earl Aberdeen of "a taking necessary for escape," made to his hand. Now
suppose, instead of Geeren's house, they had entered a British vessel at sea, or a house of a British subject on the
coast of one of their islands, and, by force or intimidation, taken the same articles : would they have been saved from
execution for the piracy or robbery, by the excuse that it was necessary for their escape to a place of safety?
It is quite clear that, even admitting the construction claimed for the treaty by Great Britain, the consequences they
expect from that construction will fail; for British law regards a homicide as a sufficient ground to commit for trial; and
does not admit necessity to be a legal defence against the charge of robbery.
But if it were really so, that by British law homicide " in resisting the coercion of a master," or robbery, or other crime,
"necessary for escape" of a slave, when committed within British territory, were held to be excused, still, the practice of
this discrimination in respect to slaves would not be warranted in cases arising under a treaty with another nation, such
as that existing between this country and Great Britain.
Slavery is recognised as a legal institution by the laws of nations, which form a part of the common law of England. So
fully is this recognition of its legality established, that slaves are undisputed subjects of the law of postliminium. The
institution, as existing and authorized in the States of this Union, is not in conflict with the usages of nations; and the
authority exercised by the master is lawful in the contemplation of public law. A homicide, then, committed in resistance
of that lawful authority, is, in public law, murder. Now, is not homicide committed in England in resistance of a lawful
authority, murder by their laws? Undoubtedly it is. And upon this ground alone, the doctrine of Lord Palmerston would be
inconsistent with British law.
Again, the law of apprenticeship, as it exists in England, is not in force in some of our States. Now, suppose an
apprentice in England were to commit a homicide, or robbery, or forgery, to enable him to escape from his servitude,
and were to fly for asylum to one of the States in which involuntary servitude, under articles of apprenticeship was not
legalized: should he be surrendered? Yes. Because, by the laws of nations, the status of the person, as existing legally
in the country from which he flies, must be respected, and the criminality of bis act tried with reference to it.. We would
be bound, even upon the British construction of the treaty, to ask, if the status, from the restraints of which he fled,
existed here, and this act had been committed in resistance of it, or to escape from it, would it have been criminal? And
the answer to this would decide the obligation. Now, bow can this case of an apprentice be distinguished from that, of a
slave, who, in resistance of an authority lawful here, though unlawful in Great Britain, or to escape a State recognised by
our laws, commits a homicide or robbery, and flies to Great Britain?
The obligation to regard the legal status of the fugitive, as existing in the country from which he flees, is very beautifully
illustrated by Grotius. In speaking of the obligation to determine the offence by the lex loci of the country in which it was
committed, he says:
"This was a received opinion in ancient times, as we find from the language of -Eschylus, in whose tragedy of the suppliants, the king of
Argos, addressing a number of the daughters of Danaus, on their coming from Egypt, says: 'If the sons of Egypt exercise control over you,
maintaining that they are authorized to do so by the law of the state, as being the nearest allied by blood, who can resist them! It is for you to
prove that, according to the laws of your country, they have no authority over you.'"
The applicability of the laws of nations in the construction of a treaty stipulation of this Rind, and the control of its terms
by those laws, has been asserted by Great Britain, and assented to by this country, in a striking example. It was, in the
case of Jonathan lobbies, alias Nash, arising under a similar provision in the treaty of 1793, known commonly as Jay's
Treaty. The treaty provided for the surrender of persons "who, being charged with murder or forgery, committed within
the jurisdiction of either, shall seek an asylum within any of the countries of the other.'* The plain meaning was territorial
jurisdiction. Now, Robbins was charged with murder committed on the high seas. The high seas are not subject to the
exclusive jurisdiction of any nation. They are the commons of the world. The offence could have been tried and
punished here in one of the circuit courts of the United States, just as well as in Great Britain. But because, by a fiction
of the law of nations, a vessel upon a free sea is regarded as a part of the territory of the nation to which she belongs,
and the treaty had authorized a demand, the accused was surrendered. Bobbins could not be said to have committed
the offence charged within the jurisdiction of any nation, for it was upon the high seas, which is as much our jurisdiction
as any other nation's, yet Great Britain claimed, and" we conceded, that the terms of the treaty were controllable by the
laws and usages of nations.
But there is a still more striking point in this case of Robbins, as it applies to the construction and practice under the
present treaty provision. The same proviso which appears in the treaty of 1842 was also contained in that of 1793.
Robbins was arrested in Charleston, S. C, in the year 1779, upon an affidavit alleging the belief that be was one of the
mutineers of the Hermione. He exhibited a notarial certificate of his American citizenship, executed in New York in 1795,
in a form usually regarded and carried by the sailors of that day as a protection. He made affidavit that he was born in
Danbury, in the State of Connecticut; that he had never changed his allegiance; that about two years before his arrest,
he was pressed from on board the brig Betsy, of New York, by the crew of the British frigate Hermione; and was
detained there, contrary to his will, in the service of the British nation, until the said vessel was captured by those of her
crew, who took her into a Spanish port by force; and that he gave no assistance in such capture. There was no
testimony whatever to controvert these facts, or any of them. The only thing approaching any incrimination of the
accused was in the affidavit of a British midshipman, who said he knew Bobbins as one of the seamen on hoard the
Hermione some time before the mutiny; that he had heard in the testimony taken before several courts martial, that
Thomas Nash was a principal in the mutiny, and he believed that Robbing's true name was Thomas Sash. There was
not a tittle of evidence inconsistent with the allegation, that he was an impressed American seaman. The court, without
waiting to investigate the facts, surrendered him, under direction of the President, and he was conveyed away, tried by a
British naval court martial, and hung at the yardarm. Now Mr. Bobbins claimed to be a native-born, citizen, and to have
been impressed into the British service; and the offence with which he was charged, having been committed upon the
high seas, could have been tried and punished in an American court. If even he had joined in the mutiny, it was to
release himself from illegal duress, from a violent and involuntary servitude and imprisonment; it was to recapture the
liberty to which his birth entitled him. Yet was he claimed by Great Britain, and surrendered by his country, without the
formality of an inquiry into the truth of what he alleged. And we now hear from Great Britain, that, under the treaty, she is
not bound to surrender a fugitive who kills, or robs, to escape from servitude.
But there is this strong difference between the two cases, to the disadvantage of Great Britain—namely, that the
practice of impressment upon the high seas is contrary to the law of nations; and, being an illegal coercion, could be
legally resisted, without criminality; while, on the other hand, the institution of slavery is recognised by the law of nations,
and authorized by the local law of this country, and, being lawful, cannot be resisted without criminality.
Poor Robins was a sacrifice, under the former treaty, to British power, a victim to British vengeance. Shall we now, under
this treaty, offer a further sacrifice of our rights, our pride, our dignity as a nation?
|David Levy Yulee's Speech
on Escaped St. Augustine Slaves
and the 10th Article of the Treaty
between the U. S. and Great Britain