12 Vt. 631 | Vt. | 1840
The opinion of the court was delivered by
— George Holmes is brought before the court on a habeas corpus. The return shows that he is imprisoned by virtue of a warrant issued by the governor of this state. An amendment has been made to the order of the governor, since the case was before the court in Washington county in July last, in a very important particular, as will appear from the return of the sheriff. A motion is now made for the discharge of Holmes. When this application was heard last July, I was detained from the court by sickness and took no part in their deliberations, nor heard the arguments. It is a subject however which I had occasion to investigate partially, and came to a conclusion different from the views which were taken by a majority of the court, and I deem it proper, on this occasion, as it is a subject of great interest, to express my opinion upon the whole case and give the reasons which led me to express a doubt whether the power exercised by the executive of this state, in this instance, was warranted by the constitution and laws of this state. By the constitution of this state, it is provided that “ no person can be justly deprived of his liberty, except by the laws of the land, or the judgment of his peers”, and every citizen of the United States who resides here a year and is of a quiet and peaceable behaviour, may become a freemen of this state. Whenever any person is to be transported out of this state, against This will, there must be found some legal authority therefor,*or it will be an invasion of the right of personal security. The order
■ • The subject of the surrender of fugitives from justice has been under examination and discussion so much, of late, that it has been nearly exhausted. Were there no other consequences attending upon the views I might take than what would affect the individual whose case is now before us, I should be very willing to have the order of the governor carried into effect. He is accused of a very atrocious and aggravated crime. If innocent, we have no reason to doubt he would so appear before the impartial and upright tribunals of justice where it is contemplated to send him for trial. If guilty, by the judgment of all civilized and Christian nations, he is considered as having forfeited his life. These however are not questions on which we are to pass. We are neither to consider him guilty nor innocent. We are only to assume that such evidence of his guilt has been exhibited as would warrant his commitment for trial in the case of a crime committed here.
If the power of surrendering may be exercised in this case, it may, and must be, in all cases which can be brought within the principle which authorizes and dictates the surrender, and hence it becomes a question of great and important consideration, and involves consequences far beyond those affecting this individual.
If the governor possesses this power, it must be incident to his executive character as it is established by the constitution, because there is no statute of this state upon the subject. There are no powers incident to the executive character of a chief magistrate of this state, unless they are obviously necessary to carry into effect some of the powers expressly given. The extreme jealously with which the royal governors had been viewed, previous to the revolution, and the powers which they claimed and exercised as the representatives of the king, led those who formed the American constitutions to define with accuracy the extent and nature of the functions of the executive, while they were willing to give almost unlimited power to the legislature. Restrictions on the legislature were not generally thought of, at the time, and they have been adopted since, rather from the construc
By the constitution of the United States, (Art. 4, Sec. 2,) fugitives from justice, escaping from one state to another, are required to be delivered up, on demand of the executive authority. This being the supreme law of the land, imperative on all executive and judicial officers, no legislative action is necessary to give it effect and none could prevent its obligation. With respect to persons guilty of crimes in a foreign government, there is no such duty directly imposed on the state or its officers.
If the power of removing such persons as have been guilty of atrocious crimes abroad is incident to the ordinary powers of a state to regulate its internal policy, and they may either prevent their entrance into their territory, or remove them therefrom, as they would vagrants or paupers, then, I apprehend, it is a power appertaining to the legislature and not to the executive, and if the legislature do not think proper to pass any law forbiding the entry, or for the removal of such persons as are dangerous to their safety, they may come here, and it is no part of the executive duty, nor is it competent for the executive to remove them.
As the legislature have not determined that the interest of the state required them to pass any law upon this subject, and have not passed any, we must look elsewhere than to our code of municipal laws for any regulation authorizing the governor to make the order in question. ' Hence, it has been considered that to demand and surrender fugitives from, justice, who have been guilty of atrocious crimes, is a right
It might be sufficient, in this part of the examination, to stop here, with the remark that if the duty of extradition is imposed by the law of nations, and the consequences are such as have been stated, it must necessarily be a duty on the general government and cannot be performed by the states, as the latter cannot have jurisdiction of any questions which may involve the peace of the country.
It has been contended, by other very eminent writers on the law of nations, that the practice of delivering up criminals exists, only, by the comity of nations, or by treaty, and the refusal to perform it constitutes no ground of complaint by one against the other. Chancellor Kent asserts it to be a
' There is still another question connected with this subject, whether the surrender be considered as in pursuance of an obligation, or from comity, and that is, whether it can be exercised by the authorities of any of the states in the union, Or whether it must be exercised, if at all, by the general government ? I approach this subject with great diffidence, and have not bestowed upon it that attention I should otherwise have done, if the view which I have already taken had not been satisfactory to me. I have already remarked that, if the right of demand and duty of surrender is one of perfect obligation,- as it would involve the question of peace or war, it must necessarily be exercised by the general government. If it exists by the comity of nations, • our national character belongs to the states collectively, as United States, and not to each separate state. But further, it appears to me that the exercise of a power to surrender criminals to, and demand them from, a foreign government, is expressly prohibited to the states in their separate character. The states are prohibited from making any treaty upon this, or any other subject. If it depends on comity or practice, it must be reciprocal. To ask a surrender of a criminal implies that we will surrender in a similar- case. The cases in which, and the offences for which it is to be done, must be the subject of an agreement, either express or implied. A practice between two governments for the mutual advantage of each, to surrender persons charged with crimes, supposes a tacit agreement between them to that effect. A request from one to do a particular act, and a compliance with that request, is an agreement. And, in the very case before us, without the additional return, we must suppose the governor to have acted on the request of the governor of Canada, and in pursuance of a practice existing heretofore, or supposed to have existed, between the two governments, either of which would be evidence of an agreement between the gov-nor of this state, in behalf of the state, and the governor of Canada. Now the states are forbidden, not only to make any treaty, but any compact or agreement with a foreign power. In this view it appears to me the power of surrendering cannot exist with the states, but, if it exists at all, it is with the gen
A different view was taken of this subject by a majority of the court, at their term in Washington county, in July last. I should have regarded their decision as settling the law upon this subject in this state, and, however strongly my opinion was to the contrary, I should have yielded to their decision as an authority in the case, and have agreed with them in remanding the prisoner, expressing these views rather as a dissenting opinion, if the case had now come before us presenting the same question, and only the same which was then presented. A different case is now presented, and on this we are all agreed. A writ of error was prosecuted from the judgment rendered by this court, and the case has been heard and determined by the supreme court of the United States, and from the opinions of the several judges, as delivered, we believe that, had the return been before that court as it now is before us, their decision would have been similar to the one we are about to make. The Chief Justice, and Justices Story, McLean, and Wayne, were of opinion that Holmes was entitled to bis discharge and that the judgment of the supreme court of this state should be reversed. Justice Catron at first agreed with them, but came to the conclusion that the return did not show any demand made of the governor of the state, and that consequently no agreement existed. Had the return been as it now is, it is to be inferred, from his opinion, he would have concurred with the other justices, and the judgment of this court would have been reversed. Judge Thompson did not consider the case as coming within the 25th section of the judiciary act, so as to give the supreme court of the United States jurisdiction over the proceedings of this court, and, speaking of the question of surrendering to foreign governments
The following opinion has been furnished the reporter by
— The history of this case is so peculiar that I feel justified in briefly stating the reasons which have induced me now to acquiesce in a decision, which I feel to be unjust and imps litic, if not dangerous to the peace of the
But while I feel thus bound to bow before the authority of the decision, because I esteem it the duty of every subordinate officer or citizen to submit quietly to the honest and sincere determination of all in authority over them, “ for conscience sake,” I cannot but regard the grounds upon which that decision is made as wholly fallacious and unsatisfactory. It could answer no good purpose to enter here into any labored discussion of the reasons assigned for that decision. That decision will hereafter (I trust) be regarded as law, and thus the uncertainty which has heretofore rested upon that important subject, will be removed. Still, I cannot but believe that had the subject been more fully discussed in that court, it might have received a different determination. The reasons which induce me to adopt this opinion„are briefly these. Chief Justice Taney, who expresses the opinion of the majority of that court, admits, on the very threshold of- the argument, that so far as concerns the punishment of crimes or the regulation of internal police, the states have a right to deal with fugitives from jüsíice from foreign countries as they deem meet and' expedient. It is there distinctly admitted, that the state of Vermont might have passed a law subjecting the relator in this case to punishment'for the offence committed in the foreign jurisdiction. I do not question this right in any of the states. It is one of the necessary incidents of sovereignty. A sovereign state may, if they see fit, even exclude all immigration, and to effect this object, I do not question they might subject any one, coming from a foreign ju
But it seems to me that this concession upturns and overthrows the very basis upon which the whole superstructure of the argument rests. For, if the states can pass laws subjecting fugitives from justice to punishment, then, by parity of reason, they may punish the fugitive in any mode they see fit. They may subject him to death, or to imprisonment, or to fine, or to exile, or to transportation and exile. How then can it be said that while all this is a mere matter of internal police, that the expulsion of the fugitive in a given direction, and giving notice to the authorities from whence he made his escape, is “entering into a compact or agreement with the foreign slate,” and is therefore prohibited, by the terms of the constitution. The law of Vermont provides, that any fugitive from justice from any other state, may be surrendered to the executive of that state, on request made and proper proof of the offence committed. I speak of that as the settled law of this state, because such was the decision of a majority of this court. And although there is no statute to that effect, yet it had been so long acquiesced in by the people, and on one occasion, expressly recognized by the legislature, that we could not but consider it as the acknowledged law of the land. This rule of action, by the executive, was adopted at a very early day, not in consequence of any arrangement with the executive of Canada, or any other foreign state, for the reciprocation of this surrender of fugitives was understood, on all hands, to be merely discretionary and not obligatory in any sense, upon foreign powers. The obligation, then, which rested upon the executive of this state to surrender fugitives from justice, was not an obligation to any foreign state, or one which any foreign state could insist upon, but simply an obligation to the citizens of this state to execute the laws, and to see that intruders, as well as residents, who violated the laws, met their merited punishment. This was done, not because we wished to aid the foreign state in executing their laws, but to enforce our own, and thereby rid ourselves of such pestilent fellows as murderers and robbers, and the like. Whether other states reciprocated
In this posture of affairs, the present relator, after having committed an atrocious and cold blooded murder, comes into this state to escape punishment. The executive of this state is applied to for his surrender, he refers the matter to the general government. They decline all interference, on the ground that, by the practical construction of their powers, too long acquiesced in to be now brought in question, they have no power to surrender fugitives from justice, unless when treaty stipulations exist upon the subject. Similar determinations had been made while Mr. Jefferson was secretary of state, and while Mr. Clay held that office. Congress had never passed any laws upon the subject, and it was controlled by no treaty stipulations. The governor of this state issued his warrant for the apprehension and surrender of the relator. He was brought, by habeas corpus, before this court, and the power of the governor to issue the warrant fully discussed and formally sustained.
Here then, without any interference on the part of the national government, the relator brings his writ of error, (a writ of error to the supreme court of the United States, to reverse the judgment of a state court on a habeas corpus!) and that judgment is virtually reversed at the instance of the relator.
I had supposed, at first, that this was, at most, a dormant power in the national government, and if so, its existence would not preclude the states from exercising the same power, to any extent, necessary to their own protection, unless that exercise came in conflict with the laws of the union. City of New York v. Miln, 11 Peters’ R. 102. Houston v. Moore, 5 Wheaton, 1. Sturgis v. Crowninshield, 4 Wheaton, 122. Ogden v. Saunders, 12 do. 213. The language of the court is very explicit upon this point, in all the above
I may be permitted to say that the extending this prohibition to the case in hand, is going very far beyond the natural import of the terms used, or any necessary inference from them. A plain unsophisticated mind would find it difficult to construe that a “ compact or agreement,” which was confessedly mere comity, and of course might be done or omitted at pleasure.
I regret, too, the result of this case in another particular. This very important power, which is acknowledged to exist somewhere, and the constant exercise of which is so important to the peace of the border states, is, by this decision, virtually annihilated. It is not for me to counsel my superiors. But it does seem that such a tribunal should have hesitated long before, upon an exparte hearing, they would have adopted principles so novel and at the same time so much to be dreaded in practice. What would a mere looker on say of this proceeding. The national government deny the existence of any such power in themselves, and congress make no provision for its exercise. The states attempt to exercise it for their own protection, and the national judiciary, at the instance of the offender, interfere and set him at liberty. Here is no conflict of powers, but a virtual denial of their existence or exercise.
It is to be borne in mind, too, that in extending that prohibition to the case of surrendering fugitives to foreign powers, we must,of course, declare state laws,regulating the surrender of fugitives to the other states of this union, equally unconstitutional, as, by the very terms of the constitution, the prohibition extends to the states of this union as well as foreign pow
I would, at least, suffer the states to exercise their power, so indispensable to the regulation of their internal police and the execution of their own criminal laws, until congress made some provision for its exercise. It seems unreasonable that murderers and robbers and vagabonds of every degree, should be permitted to thrust themselves upon us, and when we, in obedience to our own laws, attempt to expel them, we should be prevented, by some dormant power in the national government, which they refuse exercising for our relief, or by some constructive prohibition or limitation to which we never understandingly assented. But the decision is made, and even if it fill one land with felons of the most daring character, we must abide the consequences, till we can obtain relief in some constitutional mode. I can only express my regret, that a majority of that court should have found it necessary to come to so undesirable a result.
who was present at the hearing, at the July term, 1839, in Washington county, when it was adjudged that the detention and imprisonment of George Holmes was good and sufficient in law, ancT that he ought to be remanded and held under the governor’s warrant, as set forth in the sheriff’s return to the writ of habeas corpus, it is understood, dissented from that opinion, upon the ground, that whether the right or duty of surrendering fugitives from justice was created or imposed by the daw of nations, or was dependant upon mere matter of comity between different governments, the exercise of the right belonged to the federal government as being necessarily involved in the foreign intercourse and treaty making power, and that it was incompatible that it should remain as a concurrent power in the state