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I regret that I am obliged to regard both the affidavits as defective, and altogether unsatisfactory. The constitution provides that a fugitive charged with treason, felony, or other crime, shall be surrendered upon demand, and obviously implies that the charge must be legal in form and substance. This view is corroborated by the act of Congress, which directs that the executive authority making the demand, of a fugitive from justice, shall produce a copy of an indictment, or an affidavit, charging the accused with having committed treason, felony, or other crime. The object of this provision is to enable the executive, upon whom the demand is made, to determine whether there is probable cause for believing that a crime has been committed. The affidavit, therefore, when that form of evidence is adopted, must be at least so explicit and certain, that if it were laid before a magistrate, it would justify him in committing the accused to answer the charge. If the affidavit be not thus explicit and certain, it is not a legal compliance with the act of Congress. The affidavits before me are defective, in not showing so much of the nature and circumstances of the transactions alleged against the accused as would enable me to determine whether the taking and carrying away of the person and property mentioned, were felonious. The only evidence upon that point, is found in the oaths of Mr. Flournoy, that the accused feloniously stole, took, and carried away, the person and property mentioned, in violation of the laws of Georgia. Persons and property may be taken and carried away under such circumstances that the transactions would not constitute stealing nor be felonious. The question of taking and carrying away a person or property is a question of fact for the complainant to substantiate by his oath. The question in such a case, whether the taking and carrying away, when proved, constituted a larceny and were felonious, would be a question of law, to be ascertained by the magistrate from the facts proven, and not from the opinions of the complainant. There being no statement of facts and circumstances in the affidavits, they can be regarded only as showing that it was the complainant's opinion that the taking and carrying away of the slave and property mentioned, were felonious and in violation of law. The affidavits do not disclose the ground upon which that opinion was formed, so as to enable me to decide upon the correctness of the opinion thus given. The opinion may be errone

ous, and in that event, there would be no remedy against the complainant, because he could be convicted of perjury only for making a false statement of facts, but never for conclusions erroneous in law. The magistrate who should receive such an affidavit would devolve upon the complainant, who is generally an aggrieved party, the judicial responsibility which the laws cast upon the magistrate himself. It is not enough to say that the magistrate taking the affidavit, or even the executive who issues a requisition upon it, is satisfied with the charge contained in the affidavit. If no discretion to pass upon its sufficiency was intended to be conferred upon the executive on whom the requisition should be made, the submission of the affidavits to him would be an idle ceremony, and the provision of law directing it unmeaning and useless.

Testing the affidavits before me by well-established rules of law, I am satisfied that they are not sufficient to justify the issuing of a warrant for the arrest of the fugitive. Desirous, however, of ascertaining from the facts of the case, whether it might not be proper to adopt some measures for securing the offender, or preventing his escape from punishment, by reason of a defective. charge, I have heard the statement of the agent charged with the requisition, concerning the facts and circumstances of the case. I have learned from him, that the accused was a transient person, a seaman, who spent some months in the vicinity of Mr. Flournoy's plantation, distant about seven miles from Savannah; that he engaged a passage to New York in the ship Wilson Fuller; that when the vessel was about to sail, it was discovered that the slave had absconded from her master, and that pursuit being made, she was found concealed on board the ship, under the care of the accused, and was recaptured and restored to her master. There is reason to believe she was persuaded to seek her freedom by the accused, who represented to her, that if she would go to the north with him, she could live there in the enjoyment of all the privileges of freedom. The agent further states, that the accused in no other manner took the clothing and ornaments of the fugitive girl and carried away, than by enticing her to escape and aiding her in the accomplishment of that purpose.

If the facts are as thus stated, there can be but one opinion of the transaction, in a moral view. It can not be supposed that the accused had any good or proper motive for thus practising upon

the slave's natural desire for liberty, and seducing her from her master. Whatever might have been his motive, his success would have almost certainly resulted in abandoning her to poverty and vice. Such depravity can neither be defended nor extenuated, but, on the contrary, deserves severe punishment. Nevertheless, your excellency will perceive that the proceedings which have been instituted are by no means in a form adapted to the case, so as to justify me in arresting the fugitive. Instead of his having committed larceny in two instances, as your excellency has, undoubtedly through misapprehension, been led to suppose, the acts complained of constitute on and the same transaction, which is not divisible into two crimes. Again, if the facts be as thus stated, your excellency will perceive, that the goods mentioned, instead of having been feloniously stolen, taken, and carried away by the accused, as would be inferred from the very defective depositions of Mr. Flournoy, were the apparel and ornaments of the slave, and were chiefly worn upon her person in her attempt to escape from servitude, and that the accused did not in fact take or carry away the articles in question; but, on the contrary, they never came into his possession, nor did he manifest an intention to deprive the slave of them or to convert them to his own use, without which possession and intent, he could not be legally charged with larceny.

It may, perhaps, be unknown to your excellency, that while the kidnapping of a person by fraud or violence, or his abduction against his will, or any unlawful seizure of him, or abridgment of his liberty, is regarded in this state as a high crime, it is held that the relation of master and slave in other states, does not constitute a property in the person of the slave, so as to render the slave a subject of theft from the master. But without, at this time, making this position a point in the case, it is obvious, if the transaction be correctly stated by your excellency's agent, that there was in fact no taking or carrying away of the slave, but on the contrary, that she voluntarily left her master, and walked, of her own free will, to the ship. It is true that this was done under the protection of the accused, and in consequence of his persuasion; but in thus persuading and aiding her, he asserted no pretence of property in the slave, nor did he exercise any power or assume any control over her. Reprehensible as his conduct is admitted to be, your excellency will perceive, that never

theless, it can not be regarded as an act of larceny, since larceny is defined in law to be the unlawful taking by one person of another's goods, with an intent to convert them to his own use.

The information obtained from the agent may be incorrect. I am far from declaring it authentic, and my decision upon the requisition rests on the insufficiency of the case presented by the affidavits. Nevertheless, I have thought it my duty to lay the information before your excellency, since I can not suppose that, however desirous to bring the fugitive to justice for his real offence, your excellency would adopt the charge of stealing the slave, when she was not in fact taken or carried away, but, being of full age, left her home of her own free will. Nor can I for a moment believe that your excellency, apprehensive that, under the circumstances, the accused could not be lawfully surrendered upon the charge of stealing the slave, would desire the indirect accomplishment of that object by means of a constructive charge that the accused had stolen the clothing and trinkets which the slave wore in her flight.

Regretting that an occasion has occurred in which I am obliged, for want of accurate and legal evidence, to decline a compliance with a requisition made by your excellency, I beg leave to assure you that I shall very cheerfully receive such further statement of the facts, bearing upon the case, as you may be pleased to submit. I have the honor to be, very respectfully, your obedient servant.

HIS EXCELLENCY CHARLES J. M'DONALD,

Governor of Georgia.

LETTER II.

TO THE GOVERNOR OF GEORGIA.

STATE OF NEW YORK, EXECUTIVE DEPARTMENT,
Albany, July 14, 1841.

SIR: Your communication of the 28th of June, relating to the requisition for the surrender of John Greenman, has been received.

The affidavits annexed to the requisition seek to charge Greenman with having committed larceny in two instances. In the first affidavit, Mr. Flournoy, the complainant states, that the said Greenman, "on the 13th of April, 1841, at the plantation of the deponent, in the county of Chatham, did feloniously steal, take, and carry away three blankets, two shawls, three frocks, one pair of ear-rings, and two finger-rings, all of the value of fifty dollars, of the goods and chattels of the deponent, contrary to the laws of the state." The other affidavit sets forth that Greenman "did feloniously steal, take, and carry away, a negro woman-slave, named Kezia, the property of the deponent, of the value of five hundred dollars, contrary to the laws of said state."

In my former communication I expressed an opinion that these affidavits were defective and insufficient in substance, because the complainant swore in each case to a legal conclusion, that the acensed had committed a larceny, and not to facts and circumstances necessary to show that the taking and carrying away of the property and person described were felonious. I explained, by stating that the question whether a person or property had actually been taken and carried away was a question of fact to be proved by the oath of the complainant, while the inquiry whether such taking and carrying away were felonious, was a question of law to be ascertained upon an examination of the facts and circumstances proved. I remarked that the declaration of Mr. Flournoy, that the taking and carrying away were felonious was,

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