U.S. Supreme Court
Kentucky v. Dennison, 65 U.S. 24 How. 66 66 (1861)
Kentucky v. Dennison
65 U.S. (24 How.) 66
Syllabus
1. In a suit between two States, this court has original
jurisdiction without any further act of Congress regulating the
mode and form in which it shall be exercised.
2. A suit by or against the Governor of a State, as such, in his
official character, is a suit by or against the State.
3. A writ of mandamus does not issue in virtue of any
prerogative power, and, in modern practice, is nothing more than an
ordinary action at law in cases where it is the appropriate
remedy.
4. The words "treason, felony, or other crime" in the second
clause of the second section of the fourth article of the
Constitution of the United States include every offence forbidden
and made punishable by the law of the State where the offence is
committed.
5. It was the duty of the Executive authority of Ohio, upon the
demand made by the Governor of Kentucky and the production of the
indictment, duly certified, to cause Lago to be delivered up to the
agent of the Governor of Kentucky who was appointed to demand and
receive him.
6. The duty of the Governor of Ohio was merely ministerial, and
he had no right to exercise any discretionary power as to the
nature or character of the crime charged in the indictment.
7. The word "duty," in the act of 1793, means the moral
obligation of the State to perform the compact in the Constitution
when Congress had, by that act, regulated the mode in which the
duty was to be performed.
8. But Congress cannot coerce a State officer, as such, to
perform any duty by act of Congress. The State officer may perform
it if he thinks proper, and it may be a moral duty to perform it.
But if he refuses, no law of Congress can compel him.
9. The Governor of Ohio cannot, through the Judiciary or any
other Department of the General Government, be compelled to deliver
up Lago, and, upon that ground only, this motion for a mandamus was
overruled.
A motion was made in behalf of the State of Kentucky, by the
direction and in the name of the Governor of the State, for a rule
on the Governor of Ohio to show cause why a mandamus should not be
issued by this court, commanding him to cause Willis Lago, a
fugitive from justice, to be delivered up, to be removed to the
State of Kentucky, having jurisdiction of the crime with which he
is charged.
Page 65 U. S. 67
The facts on which this motion was made are as follows:
The grand jury of Woodford Circuit Court, in the State of
Kentucky, at October term, 1859, returned to the court the
following indictment against the said Lago:
"
WOODFORD CIRCUIT COURT."
"
The Commonwealth of Kentucky against Willis
Lago,"
"
free man of color"
"The grand jury of Woodford county, in the name and by the
authority of the Commonwealth of Kentucky, accuse Willis Lago, free
man of color, of the crime of assisting a slave to escape, &c.,
committed as follows, namely: the said Willis Lago, free man of
color, on the fourth day of October 1859, in the county aforesaid,
not having lawful claim, and not having any color of claim thereto,
did seduce and entice Charlotte, a slave, the property of C. W.
Nuckols, to leave her owner and possessor, and did aid and assist
said slave in an attempt to make her escape from her said owner and
possessor, against the peace and dignity of the Commonwealth of
Kentucky."
"W. S. DOWNEY,
Com. Attorney"
On the back of said indictment is the following endorsement:
"A true bill; L. A. Berry, foreman. Returned by grand jury,
October term, 1859."
A copy of this indictment, certified and authenticated,
according to the act of Congress of 1793, was presented to the
Governor of Ohio by the authorized agent of the Governor of
Kentucky, and the arrest and delivery of the fugitive demanded.
The Governor of Ohio referred the matter to the Attorney General
of the State of Ohio for his opinion and advice, and received from
him a written opinion, upon which he acted, and refused to arrest
or deliver up the fugitive, and, with his refusal, communicated to
the Governor of Kentucky the opinion of the Attorney General, to
show the grounds on which he refused. The written opinion of the
Attorney General is as follows:
"OFFICE OF THE ATTORNEY GENERAL"
"
Columbus, Ohio, April 14, 1860"
"SIR: The requisition, with its accompanying documents,
Page 65 U. S. 68
made upon you by the Governor of Kentucky, for the surrender of
Willis Lago, described to be a 'fugitive from the justice of the
laws of' that State, may, for all present purpose, be regarded as
sufficiently complying with the provisions of the Federal
Constitution and the act of Congress touching the extradition of
fugitives from justice, if the alleged offence charged against Lago
can be considered as either 'treason, felony, or other crime'
within the fair scope of these provisions."
"Attached to the requisition is an authenticated copy of the
indictment on which the demand is predicated, and this, omitting
merely the title of the case and the venue, is in the words and
figures following:"
" The grand jury of Woodford county, in the name and by the
authority of the Commonwealth of Kentucky, accuse Willis Lago, free
man of color, of the crime of assisting a slave to escape, &c.,
committed as follows,
viz: the said Willis Lago, free man
of color, on the fourth day of October, 1859, in the county
aforesaid, not having lawful claim, and not having any color of
claim thereto, did seduce and entice Charlotte, a slave, the
property of C. W. Nuckols, to leave her owner and possessor, and
did aid and assist said slave in an attempt to make her escape from
her said owner and possessor, against the peace and dignity of the
Commonwealth of Kentucky."
"This indictment, it must be admitted, is quite inartificially
framed, and it might be found difficult to vindicate its validity
according to the rules of criminal pleading which obtain in our own
courts or wheresoever else the common law prevails. This objection,
however, if it have any force, loses its importance in the presence
of other considerations, which, in my judgment, must control the
fate of the application."
"The act of which Lago is thus accused by the grand jury of
Woodford county certainly is not 'treason,' according to any code
of any country, and just as certainly is not 'felony,' or any other
crime, under the laws of this State, or by the common law. On the
other hand, the laws of Kentucky do denounce this act as a 'crime,'
and the question is thus presented whether, under the Federal
Constitution, one State is
Page 65 U. S. 69
under an obligation to surrender its citizens or residents to
any other State on the charge that they have committed an offence
not known to the laws of the former, nor affecting the public
safety, nor regarded as
malum in se by the general
judgment and conscience of civilized nations."
"This question must, in my opinion, be resolved against the
existence of any such obligation. There are many acts -- such as
the creation of nuisances, selling vinous or spirituous liquors,
horse racing, trespassing on public lands, keeping tavern without
license, permitting dogs to run at large -- declared by the laws of
most of the States to be crimes, for the commission of which the
offender is visited with fine or imprisonment, or with both, and
yet it will not be insisted that the power of extradition, as
defined by the Constitution, applies to these or the like offences.
Obviously a line must be somewhere drawn distinguishing offences
which do from offences which do not fall within the scope of this
power. The right rule, in my opinion, is that which holds the power
to be limited to such acts as constitute either treason or felony
by the common law, as that stood when the Constitution was adopted,
or which are regarded as crimes by the usages and laws of all
civilized nations. This rule is sufficiently vindicated by the
consideration that no other has ever been suggested at once so easy
of application to all cases, so just to the several States, and so
consistent in its operation with the rights and security of the
citizen."
"The application of this rule is decisive against the demand now
urged for the surrender of Lago. The offence charged against him
does not rank among those upon which the constitutional provision
was intended to operate, and you have, therefore, no authority to
comply with the requisition made upon you by the Governor of
Kentucky."
"Entertaining no doubt as to the rightfulness of this
conclusion, I am highly gratified in being able to fortify it by
the authority of my learned and eminent predecessor, who first
filled this office and who officially advised the Governor of that
day that, in a case substantially similar to the one now presented,
he ought not to issue his warrant of extradition.
Page 65 U. S. 70
Other authority, if needed, may be found in the fact that this
rule is conformable to the ancient and settled usage of the
State."
To guard against possible misapprehension, let me add that the
power of extradition is not to be exercised, as of course, in every
case which may apparently fall within the rule here asserted. While
it is limited to these cases, the very nature of the power is such
that its exercise, even under this limitation, must always be
guided by a sound legal discretion, applying itself to the
particular circumstances of each case as it shall be presented.
"The communication, in a formal manner, of the preceding opinion
has been long but unavoidably deferred by causes of which you are
fully apprised. Though this delay is greatly to be regretted, it
can have had no prejudicial effect, as the agent appointed by the
Governor of Kentucky to receive Lago was long since officially,
though informally, advised that no case had been presented which
would warrant his extradition."
"Very respectfully, your obedient servant,"
"C. P. WOLCOTT."
"To the GOVERNOR."
Some further correspondence took place between the Governors,
which it is not necessary to state; and the Governor of Ohio,
having finally refused to cause the arrest and delivery of the
fugitive, this motion was made on the part of Kentucky.
Upon the motion being made, the court ordered notice of it to be
served on the Governor and Attorney General of Ohio, to appear on a
day mentioned in the notice. The Attorney General of Ohio appeared,
but under a protest, made by order of the Governor of Ohio, against
the jurisdiction of the court to issue the mandamus moved for.
Page 65 U. S. 95
Mr. Chief Justice TANEY delivered the opinion of the court.
The court is sensible of the importance of this case, and of the
great interest and gravity of the questions involved in it, and
which have been raised and fully argued at the bar.
Some of them, however, are not now for the first time brought to
the attention of this court, and the objections made to the
jurisdiction, and the form and nature of the process to
Page 65 U. S. 96
be issued, and upon whom it is to be served, have all been
heretofore considered and decided, and cannot now be regarded as
open to further dispute.
As early as 1792, in the case of
Georgia v. Brailsford,
the court exercised the original jurisdiction conferred by the
Constitution, without any further legislation by Congress to
regulate it than the act of 1789. And no question was then made,
nor any doubt then expressed, as to the authority of the court. The
same power was again exercised without objection in the case of
Oswold v. the State of Georgia, in which the court
regulated the form and nature of the process against the State, and
directed it to be served on the Governor and Attorney General. But
in the case of
Chisholm's Executors v. the
State of Georgia, at February term, 1793, reported
in 2 Dall. 419, the authority of the court in this respect was
questioned, and brought to its attention in the argument of
counsel, and the report shows how carefully and thoroughly the
subject was considered. Each of the judges delivered a separate
opinion, in which these questions, as to the jurisdiction of the
court and the mode of exercising it, are elaborately examined.
Mr. Chief Justice Jay, Mr. Justice Cushing, Mr. Justice Wilson,
and Mr. Justice Blair decided in favor of the jurisdiction, and
held that process served on the Governor and Attorney General was
sufficient. Mr. Justice Iredell differed, and thought that further
legislation by Congress was necessary to give the jurisdiction and
regulate the manner in which it should be exercised. But the
opinion of the majority of the court upon these points has always
been since followed. And in the case of
New Jersey
v. New York, in 1831, 5 Pet. 284, Chief Justice
Marshall, in delivering the opinion of the court, refers to the
case of
Chisholm v. the State of Georgia, and to the
opinions then delivered, and the judgment pronounced, in terms of
high respect, and, after enumerating the various cases in which
that decision had been acted on, reaffirms it in the following
words:
"It has been settled by our predecessors, on great deliberation,
that this court may exercise its original jurisdiction in
Page 65 U. S. 97
suits against a State, under the authority conferred by the
Constitution and existing acts of Congress. The rule respecting the
process, the persons on whom it is to be served, and the time of
service, are fixed. The course of the court, on the failure of the
State to appear after due service of process, has been also
prescribed."
And in the same case, page
30 U. S. 289,
he states in full the process which had been established by the
court as a rule of practice in the case of
Grayson v.
the State of Virginia, 3 Dall. 320, and ever since
followed. This rule directs
"that, when process at common law or in equity shall issue
against a State, the same shall be served upon the Governor or
chief Executive magistrate and the Attorney General of such
State."
It is equally well settled, that a mandamus in modern practice
is nothing more than an action at law between the parties, and is
not now regarded as a prerogative writ. It undoubtedly came into
use by virtue of the prerogative power of the English Crown, and
was subject to regulations and rules which have long since been
disused. But the right to the writ, and the power to issue it, has
ceased to depend upon any prerogative power, and it is now regarded
as an ordinary process in cases to which it is applicable. It was
so held by this court in the cases of
Kendall v. United
States, 12 Pet. 615;
Kendall
v. Stokes and others, 3 How. 100.
So, also as to the process in the name of the Governor, in his
official capacity, in behalf of the State.
In the case of
Madraso v. the Governor of
Georgia, 1 Pet. 110, it was decided that, in a case
where the chief magistrate of a State is sued not by his name as an
individual, but by his style of office, and the claim made upon him
is entirely in his official character, the State itself may be
considered a party on the record. This was a case where the State
was the defendant; the practice, where it is plaintiff, has been
frequently adopted of suing in the name of the Governor in behalf
of the State, and was indeed the form originally used, and always
recognised as the suit of the State.
Thus, in the first case to be found in our reports in which a
suit was brought by a State, it was entitled, and set forth in
Page 65 U. S. 98
the bill, as the suit of "the State of Georgia, by Edward
Tellfair, Governor of the said State, complainant, against Samuel
Brailsford and others," and the second case, which was as early as
1793, was entitled and set forth in the pleadings as the suit
of
"His Excellency Edward Tellfair, Esquire, Governor and
Commander-in-chief in and over the State of Georgia, in behalf of
the said State, complainant, against Samuel Brailsford and others,
defendants."
The cases referred to leave no question open to controversy as
to the jurisdiction of the court. They show that it has been the
established doctrine upon this subject ever since the act of 1789
that, in all cases where original jurisdiction is given by the
Constitution, this court has authority to exercise it without any
further act of Congress to regulate its process or confer
jurisdiction, and that the court may regulate and mould the process
it uses in such manner as in its judgment will best promote the
purposes of justice. And that it has also been settled that, where
the State is a party, plaintiff or defendant, the Governor
represents the State, and the suit may be, in form, a suit by him
as Governor in behalf of the State, where the State is plaintiff,
and he must be summoned or notified as the officer representing the
State, where the State is defendant. And further, that the writ of
mandamus does not issue from or by any prerogative power, and is
nothing more than the ordinary process of a court of justice, to
which everyone is entitled, where it is the appropriate process for
asserting the right he claims.
We may therefore dismiss the question of jurisdiction without
further comment, as it is very clear that, if the right claimed by
Kentucky can be enforced by judicial process, the proceeding by
mandamus is the only mode in which the object can be
accomplished.
This brings us to the examination of the clause of the
Constitution which has given rise to this controversy. It is in the
following words:
"A person charged in any State with treason, felony, or other
crime, who shall flee from justice, and be found in another State,
shall, on demand of the Executive authority of the
Page 65 U. S. 99
State from which he fled, be delivered up, to be removed to the
State having jurisdiction of the crime."
Looking to the language of the clause, it is difficult to
comprehend how any doubt could have arisen as to its meaning and
construction. The words "treason, felony, or other crime," in their
plain and obvious import, as well as in their legal and technical
sense, embrace every act forbidden and made punishable to a law of
the State. The word "crime" of itself includes every offence, from
the highest to the lowest in the grade of offences, and includes
what are called "misdemeanors," as well as treason and felony.
4 Bl. Com. 5, 6, and note 3, Wendall's edition.
But as the word "crime" would have included treason and felony,
without specially mentioning those offences, it seems to be
supposed that the natural and legal import of the word, by
associating it with those offences, must be restricted and confined
to offences already known to the common law and to the usage of
nations, and regarded as offences in every civilized community, and
that they do not extend to acts made offences by local statutes
growing out of local circumstances, nor to offences against
ordinary police regulations. This is one of the grounds upon which
the Governor of Ohio refused to deliver Lago, under the advice of
the Attorney General of that State.
But this inference is founded upon an obvious mistake as to the
purposes for which the words "treason and felony" were introduced.
They were introduced for the purpose of guarding against any
restriction of the word "crime," and to prevent this provision from
being construed by the rules and usages of independent nations in
compacts for delivering up fugitives from justice. According to
these usages, even where they admitted the obligation to deliver
the fugitive, persons who fled on account of political offences
were almost always excepted, and the nation upon which the demand
is made also uniformly claims and exercises a discretion in
weighing the evidence of the crime, and the character of the
offence. The policy of different nations in this respect, with the
opinions of eminent writers upon public law, are collected in
Wheaton
Page 65 U. S. 100
on the Law of Nations 171; Foelix 312, and Martin, Verge's
edition 182. And the English Government, from which we have
borrowed our general system of law and jurisprudence, has always
refused to deliver up political offenders who had sought an asylum
within its dominions. And as the States of this Union, although
united as one nation for certain specified purposes, are yet, so
far as concerns their internal government, separate sovereignties,
independent of each other, it was obviously deemed necessary to
show, by the terms used, that this compact was not to be regarded
or construed as an ordinary treaty for extradition between nations,
altogether independent of each other, but was intended to embrace
political offences against the sovereignty of the State, as well as
all other crimes. And as treason was also a "felony" (4 Bl.Com.
94), it was necessary to insert those words, to show, in language
that could not be mistaken, that political offenders were included
in it. For this was not a compact of peace and comity between
separate nations who had no claim on each other for mutual support,
but a compact binding them to give aid and assistance to each other
in executing their laws, and to support each other in preserving
order and law within its confines, whenever such aid was needed and
required; for it is manifest that the statesmen who framed the
Constitution were fully sensible that, from the complex character
of the Government, it must fail unless the States mutually
supported each other and the General Government, and that nothing
would be more likely to disturb its peace and end in discord than
permitting an offender against the laws of a State, by passing over
a mathematical line which divides it from another, to defy its
process and stand ready, under the protection of the State, to
repeat the offence as soon as another opportunity offered.
Indeed, the necessity of this policy of mutual support in
bringing offenders to justice without any exception as to the
character and nature of the crime seems to have been first
recognised and acted on by the American colonies, for we find, by
Winthrop's History of Massachusetts, vol. 2, pages 121 and 126,
that, as early as 1643, by
"articles of Confederation
Page 65 U. S. 101
between the plantations under the Government of Massachusetts,
the plantation under the Government of New Plymouth, the
plantations under the Government of Connecticut, and the Government
of New Haven, with the plantations in combination therewith,"
these plantations pledged themselves to each other that,
"upon the escape of any prisoner or fugitive for any criminal
cause, whether by breaking prison, or getting from the officer, or
otherwise escaping, upon the certificate of two magistrates of the
jurisdiction out of which the escape was made that he was a
prisoner or such an offender at the time of the escape, the
magistrate, or some of them, of the jurisdiction where, for the
present, the said prisoner or fugitive abideth shall forthwith
grant such a warrant as the case will bear for the apprehending of
any such person and the delivery of him into the hands of the
officer or other person who pursueth him, and if there be help
required for the safe returning of any such offender, then it shall
be granted unto him that craves the same, he paying the charges
thereof."
It will be seen that this agreement gave no discretion to the
magistrate of the Government where the offender was found, but he
was bound to arrest and deliver upon the production of the
certificate under which he was demanded.
When the thirteen colonies formed a Confederation for mutual
support, a similar provision was introduced, most probably
suggested by the advantages which the plantations had derived from
their compact with one another. But as these colonies had then, by
the Declaration of Independence, become separate and independent
sovereignties, against which treason might be committed, their
compact is carefully worded so as to include treason and felony --
that is, political offences -- as well as crimes of an inferior
grade . It is in the following words:
"If any person guilty of or charged with treason, felony, or
other high misdemeanor in any State shall flee from justice, and be
found in any other of the United States, he shall, upon demand of
the Governor or Executive power of the State from which he fled, be
delivered up and removed to the State having jurisdiction of his
offence. "
Page 65 U. S. 102
And when these colonies were about to form a still closer union
by the present Constitution, but yet preserving their sovereignty,
they had learned from experience the necessity of this provision
for the internal safety of each of them, and to promote concord and
harmony among all their members, and it is introduced in the
Constitution substantially in the same words, but substituting the
word "crime" for the words "high misdemeanor," and thereby showing
the deliberate purpose to include every offence known to the law of
the State from which the party charged had fled.
The argument of behalf of the Governor of Ohio, which insists
upon excluding from this clause new offences created by a statute
of the State and growing out of its local institutions, and which
are not admitted to be offences in the State where the fugitive is
found, nor so regarded by the general usage of civilized nations,
would render the clause useless for any practical purpose. For
where can the line of division be drawn with anything like
certainty? Who is to mark it? The Governor of the demanding State
would probably draw one line, and the Governor of the other State
another. And, if they differed, who is to decide between them?
Under such a vague and indefinite construction, the article would
not be a bond of peace and union, but a constant source of
controversy and irritating discussion. It would have been far
better to omit it altogether, and to have left it to the comity of
the States, and their own sense of their respective interests, than
to have inserted it so conferring a right, and yet defining that
right so loosely as to make it a never-failing subject of dispute
and ill will.
The clause in question, like the clause in the Confederation,
authorizes the demand to be made by the Executive authority of the
State where the crime was committed, but does not in so many words
specify the officer of the State upon whom the demand is to be made
and whose duty it is to have the fugitive delivered and removed to
the State having jurisdiction of the crime. But, under the
Confederation, it is plain that the demand was to be made on the
Governor or Executive authority of the State, and could be made on
no other department
Page 65 U. S. 103
or officer, for the Confederation was only a league of separate
sovereignties, in which each State, within its own limits, held and
exercised all the powers of sovereignty, and the Confederation had
no officer, either executive, judicial, or ministerial, through
whom it could exercise an authority within the limits of a State.
In the present Constitution, however, these powers, to a limited
extent, have been conferred on the General Government within the
territories of the several States. But the part of the clause in
relation to the mode of demanding and surrendering the fugitive is
(with the exception of an unimportant word or two) a literal copy
of the article of the Confederation, and it is plain that the mode
of the demand and the official authority by and to whom it was
addressed, under the Confederation, must have been in the minds of
the members of the Convention when this article was introduced, and
that, in adopting the same words, they manifestly intended to
sanction the mode of proceeding practiced under the Confederation
-- that is, of demanding the fugitive from the Executive authority
and making it his duty to cause him to be delivered up.
Looking, therefore, to the words of the Constitution -- to the
obvious policy and necessity of this provision to preserve harmony
between States, and order and law within their respective borders,
and to its early adoption by the colonies, and then by the
Confederated States, whose mutual interest it was to give each
other aid and support whenever it was needed -- the conclusion is
irresistible that this compact engrafted in the Constitution
included, and was intended to include, every offence made
punishable by the law of the State in which it was committed, and
that it gives the right to the Executive authority of the State to
demand the fugitive from the Executive authority of the State in
which he is found; that the right given to "demand" implies that it
is an absolute right; and it follows that there must be a
correlative obligation to deliver, without any reference to the
character of the crime charged, or to the policy or laws of the
State to which the fugitive has fled.
This is evidently the construction put upon this article in
Page 65 U. S. 104
the act of Congress of 1793, under which the proceedings now
before us are instituted. It is therefore the construction put upon
it almost contemporaneously with the commencement of the Government
itself, and when Washington was still at its head, and many of
those who had assisted in framing it were members of the Congress
which enacted the law.
The Constitution having established the right on one part and
the obligation on the other, it became necessary to provide by law
the mode of carrying it into execution. The Governor of the State
could not, upon a charge made before him, demand the fugitive, for,
according to the principles upon which all of our institutions are
founded, the Executive Department can act only in subordination of
the Judicial Department where rights of person or property are
concerned, and its duty in those cases consists only in aiding to
support the judicial process and enforcing its authority when its
interposition for that purpose becomes necessary and is called for
by the Judicial Department. The Executive authority of the State
therefore was not authorized by this article to make the demand
unless the party was charged in the regular course of judicial
proceedings. And it was equally necessary that the Executive
authority of the State upon which the demand was made, when called
on to render his aid, should be satisfied by competent proof that
the party was so charged. This proceeding, when duly authenticated,
is his authority for arresting the offender.
This duty of providing by law the regulations necessary to carry
this compact into execution, from the nature of the duty and the
object in view, was manifestly devolved upon Congress, for if it
was left to the States, each State might require different proof to
authenticate the judicial proceeding upon which the demand was
founded, and as the duty of the Governor of the State where the
fugitive was found is, in such cases, merely ministerial, without
the right to exercise either executive or judicial discretion, he
could not lawfully issue a warrant to arrest an individual without
a law of the State or of Congress to authorize it. These
difficulties presented themselves as early as 1791, in a demand
made by the Governor
Page 65 U. S. 105
of Pennsylvania upon the Governor of Virginia, and both of them
admitted the propriety of bringing the subject before the
President, who immediately submitted the matter to the
consideration of Congress. And this led to the act of 1793, of
which we are now speaking. All difficulty as to the mode of
authenticating the judicial proceeding was removed by the article
in the Constitution which declares
"that full faith and credit shall be given in each State to the
public acts, records, and judicial proceedings of every other
State, and the Congress may by general laws prescribe the manner in
which acts, records, and proceedings shall be proved, and the
effect thereof."
And, without doubt, the provision of which we are now speaking
-- that is, for the delivery of a fugitive, which requires official
communications between States, and the authentication of official
documents -- was in the minds of the framers of the Constitution,
and had its influence in inducing them to give this power to
Congress. And acting upon this authority, and the clause of the
Constitution which is the subject of the present controversy,
Congress passed the act of 1793, February 12th, which, as far as
relates to this subject, is in the following words:
"Section 1. That whenever the Executive authority of any State
in the Union, or of either of the Territories northwest or south of
the river Ohio, shall demand any person as a fugitive from justice
of the Executive authority of any such State or Territory to which
such person shall have fled, and shall, moreover, produce the copy
of an indictment found, or an affidavit made before a magistrate of
any State or Territory as aforesaid, charging the person so
demanded with having committed treason, felony, or other crime,
certified as authentic by the Governor or chief Magistrate of the
State or Territory from whence the person so charged fled, it shall
be the duty of the Executive authority of the State or Territory to
which such person shall have fled to cause him or her to be
arrested and secured, and notice of the arrest to be given to the
Executive authority making such demand, or to the agent of such
authority appointed to receive the fugitive, and to cause the
fugitive to be delivered to such agent when he shall appear;
Page 65 U. S. 106
but if no such agent shall appear within six months from the
time of the arrest, the prisoner may be discharged. And all costs
or expenses incurred in the apprehending, securing, and
transmitting such fugitive to the State or Territory making such
demand shall be paid by such State or Territory."
"Section 2. And be it further enacted, That any agent, appointed
as aforesaid, who shall receive the fugitive into his custody,
shall be empowered to transport him or her to the State or
Territory from which he or she shall have fled, and if any person
or persons shall by force set at liberty or rescue the fugitive
from such agent while transporting as aforesaid, the person or
persons so offending shall, on conviction, be fined not exceeding
five hundred dollars, and be imprisoned not exceeding one
year."
It will be observed that the judicial acts which are necessary
to authorize the demand are plainly specified in the act of
Congress, and the certificate of the Executive authority is made
conclusive as to their verity when presented to the Executive of
the State where the fugitive is found. He has no right to look
behind them, or to question them, or to look into the character of
the crime specified in this judicial proceeding. The duty which he
is to perform is, as we have already said, merely ministerial --
that is, to cause the party to be arrested and delivered to the
agent or authority of the State where the crime was committed. It
is said in the argument that the Executive officer upon whom this
demand is made must have a discretionary executive power, because
he must inquire and decide who is the person demanded. But this
certainly is not a discretionary duty upon which he is to exercise
any judgment, but is a mere ministerial duty -- that, is, to do the
act required to be done by him, and such as every marshal and
sheriff must perform when process, either criminal or civil, is
placed in his hands to be served on the person named in it. And it
never has been supposed that this duty involved and discretionary
power, or made him anything more than a mere ministerial officer,
and such is the position and character of the Executive of the
State under this law, when the demand is made upon him and the
requisite evidence produced. The
Page 65 U. S. 107
Governor has only to issue his warrant to an agent or officer to
arrest the party named in the demand.
The question which remains to be examined is a grave and
important one. When the demand was made, the proofs required by the
act of 1793 to support it were exhibited to the Governor of Ohio,
duly certified and authenticated, and the objection made to the
validity of the indictment is altogether untenable. Kentucky has an
undoubted right to regulate the forms of pleading and process in
her own courts in criminal as well as civil cases, and is not bound
to conform to those of any other State. And whether the charge
against Lago is legally and sufficiently laid in this indictment
according to the laws of Kentucky is a judicial question to be
decided by the courts of the State, and not by the Executive
authority of the State of Ohio.
The demand being thus made, the act of Congress declares that
"it shall be the duty of the Executive authority of the State" to
cause the fugitive to be arrested and secured, and delivered to the
agent of the demanding State. The words, "it shall be the duty," in
ordinary legislation, imply the assertion of the power to command
and to coerce obedience. But looking to the subject matter of this
law, and the relations which the United States and the several
States bear to each other, the court is of opinion the words "it
shall be the duty" were not used as mandatory and compulsory, but
as declaratory of the moral duty which this compact created when
Congress had provided the mode of carrying it into execution. The
act does not provide any means to compel the execution of this
duty, nor inflict any punishment for neglect or refusal on the part
of the Executive of the State; nor is there any clause or provision
in the Constitution which arms the Government of the United States
with this power. Indeed, such a power would place every State under
the control and dominion of the General Government, even in the
administration of its internal concerns and reserved rights. And we
think it clear that the Federal Government, under the Constitution,
has no power to impose on a State officer, as such, any duty
whatever, and compel him to perform it, for if it
Page 65 U. S. 108
possessed this power, it might overload the officer with duties
which would fill up all his time, and disable him from performing
his obligations to the State, and might impose on him duties of a
character incompatible with the rank and dignity to which he was
elevated by the State.
It is true that Congress may authorize a particular State
officer to perform a particular duty, but if he declines to do so,
it does not follow that he may be coerced or punished for his
refusal. And we are very far from supposing that, in using this
word "duty," the statesmen who framed and passed the law, or the
President who approved and signed it, intended to exercise a
coercive power over State officers not warranted by the
Constitution. But the General Government having in that law
fulfilled the duty devolved upon it by prescribing the proof and
mode of authentication upon which the State authorities were bound
to deliver the fugitive, the word "duty" in the law points to the
obligation on the State to carry it into execution.
It is true that, in the early days of the Government, Congress
relied with confidence upon the cooperation and support of the
States when exercising the legitimate powers of the General
Government, and were accustomed to receive it upon principles of
comity, and from a sense of mutual and common interest, where no
such duty was imposed by the Constitution. And laws were passed
authorizing State courts to entertain jurisdiction in proceedings
by the United States to recover penalties and forfeitures incurred
by breaches of their revenue laws, and giving to the State courts
the same authority with the District Court of the United States to
enforce such penalties and forfeitures, and also the power to hear
the allegations of parties, and to take proofs, if an application
for a remission of the penalty or forfeiture should be made,
according to the provisions of the acts of Congress. And these
powers were for some years exercised by State tribunals, readily
and without objection, until, in some of the States, it was
declined because it interfered with and retarded the performance of
duties which properly belonged to them as State courts, and, in
other States, doubts appear to have arisen as
Page 65 U. S. 109
to the power of the courts, acting under the authority of the
State, to inflict these penalties and forfeitures for offences
against the General Government, unless especially authorized to do
so by the State.
And, in these cases, the cooperation of the States was a matter
of comity which the several sovereignties extended to one another
for their mutual benefit. It was not regarded by either party as an
obligation imposed by the Constitution. And the acts of Congress
conferring the jurisdiction merely give the power to the State
tribunals, but do not purport to regard it as a duty, and they
leave it to the States to exercise it or not, as might best comport
with their own sense of justice and their own interest and
convenience.
But the language of the act of 1793 is very different. It does
not purport to give authority to the State Executive to arrest and
deliver the fugitive, but requires it to be done, and the language
of the law implies an absolute obligation which the State authority
is bound to perform. And when it speaks of the duty of the
Governor, it evidently points to the duty imposed by the
Constitution in the clause we are now considering. The performance
of this duty, however, is left to depend on the fidelity of the
State Executive to the compact entered into with the other States
when it adopted the Constitution of the United States and became a
member of the Union. It was so left by the Constitution, and
necessarily so left by the act of 1793.
And it would seem that, when the Constitution was framed and
when this law was passed, it was confidently believed that a sense
of justice and of mutual interest would insure a faithful execution
of this constitutional provision by the Executive of every State,
for every State had an equal interest in the execution of a compact
absolutely essential to their peace and well being in their
internal concerns, as well as members of the Union. Hence, the use
of the words ordinarily employed when an undoubted obligation is
required to be performed, "it shall be his duty."
But if the Governor of Ohio refuses to discharge this duty,
there is no power delegated to the General Government, either
Page 65 U. S. 110
through the Judicial Department or any other department, to use
any coercive means to compel him.
And upon this ground, the motion for the mandamus must be
overruled.