The New York Times, June 30, 1860
EXECUTIVE DEPARTMENT,
NASHVILLE, TENNESSEE, May 26, 1860.
His Excellency, W. DENISON, Governor of the State of Ohio:
SIR: There was issued from this Department on the 17th inst., a requisition demanding of your Excellency, as fugitives from justice from this State, STEPHEN G. KENNEDY and MARY ANN C. HATCH, alias MARY ANN C. CALHOUN, charged with the crime of nogro stealing, which is a felony under the statute laws of Tennessee.
I am informed by JAMES H. SWAN, the agent appointed by me to receive the fugitives, that your Excellency refused to cause said fugitives to be arrested and delivered to him.
Upon examination of the record in this Department, I am unable to discover any defect in the requisition, and deem it due to the aggrieved party, who is a citizen of this State, to ask your Excellency to point out such defect as, in your opinion, vitiates the requisisition, so that in future I may understand the practice of the State of Ohio under the Act of Congress of Feb. 12, 1793, respecting the surrender of fugitives from justice. Very respectfully,
ISHAM G. HARRIS.
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STATE OF OHIO, EXECUTIVE DEPARTMENT,
COLUMBUS, June 2, 1860.
His Excellency, Isham G. Harris,
Governor of the State of Tennessee.
SIR: I have the honor to acknowledge the receipt of your letter of the 26th ultimo.
In reply, I beg to say that the crime of negro stealing, not being known to either the Common Law or the Criminal Code of this State, it is not of that class of crimes contemplated by the Federal Constitution, for the commission of which I am authorized, as the Executive of this State, to surrender a fugitive from the justice of a sister State; and hence I declined to issue a warrant upon the requisition of your Excellency for the extradition of STEPHEN G. KENNEDY and MARY ANN HATCH, alias Mary Ann C. Calhoun, charged with that offence, which you advise is a felony under the statute laws of Tennessee.
Upon the second requisition for the same parties, charged with the crime of grand larceny, in having stolen certain jewelry, I had the pleasure of issuing a warrant on Thursday last.
Very respectfully yours, &c.,
W. DENISON.
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EXECUTIVE DEPARTMENT,
NASHVILLE, Tenn., June 12, 1860.
His Excellency, W. Denison, Governor of the State of Ohio:
SIR: I have the honor to acknowledge the receipt of your Excellency’s communication of the 2d inst., in answer to which I must be permitted to express my profound astonishment, as well as my sincere regret, that the principle announced by it should have been adopted and avowed by the Executive of a sister State, who, from his elevated and responsible position, is supposed to reflect, not merely the sentiments of an individual, but the calm and dispassionate judgment of a great Commonwealth.
Your Excellency says “that the crime of negro stealing not being known to either the common law or criminal code of this State, (Ohio) it is not of that class of crimes contemplated by the Federal Constitution, for the commission of which, I am authorized, as the Executive of this State, to surrender a fugitive from the justice of a sister State, and hence I declined to issue a warrant upon the requisition of your Excellency for the extradition of STEPHEN G. KENNEDY and MARY ANN C. HATCH, alias MARY ANN C. CALHOUN, charged with that offence.”
The principle asserted by your Excellency in the above paragraph is, that as the offence with which the fugitives are charged is not a crime under the laws of Ohio, the duty of surrendering them upon the demand of the Executive of Tennessee does not devolve upon you as the Executive of Ohio, however highly criminal the offence may be under the laws of Tennessee, where it was committed.
Your Excellency must permit me to say, that this decision effectually nullifies the second clause of the second section of the fourth article of the Federal Constitution, as well as the act of Congress, of February 12, 1793. The clause of the Constitution referred to provides that:
“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 State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime.”
And the act of Congress passed for the express purpose of carrying into effect this provision of the Constitution, provides:
“That whenever the Executive authority of any State in the Union, or either of the Territories, * * * 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 which 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 the demand, or to the agent of such authority appointed to receive the fugitive, and cause the fugitive to be delivered up to such agent when he shall appear.”
From the above extracts, does it not appear too clearly to admit of argument, doubt or cavil, that the constitutional duty of “delivering up” a fugitive must depend alone upon the criminality of the offence charged under the laws of the State where it was committed? In my judgment, it is impossible for an unprejudiced mind to arrive at a different conclusion.
KENNEDY and HATCH “were charged with crime,” (the crime of negro stealing) “in the State” of Tennessee, by “an affidavit made before a magistrate of that State,” which was certified as authentic by the Governor of the State. “They fled from justice,” “and were found in another State,” (the State of Ohio.) They were “demanded by the Executive authority of the State from which they fled,” and the agent appointed by the Executive of Tennessee to receive the fugitives appeared at the Capital of Ohio for that purpose.
But instead of obeying the plain letter and spirit of the Constitution and the Act of Congress referred to, “by delivering them to be removed to the State (of Tennessee) having jurisdiction of the crime,” your Excellency refuses to do so upon the ground that negro-stealing, not being a crime under the laws of your State, you assume that it cannot or shall not be a crime in any other State, or at all events you will not recognize it as such, as in your opinion “it is not of that class of crime contemplated by the Federal Constitution for the commission of which you are authorized to surrender a fugitive.”
I cannot imagine the authority upon which your Excellency undertakes to distinguish between classes of crime, or determine upon any class of crime which is not “contemplated by the Constitution,” since neither the Constitution nor the act of Congress for the rendition of fugitives from justice make any such distinction, nor do they undertake to determine what shall constitute crime, the language employed in the Constitution being: “A person charged in any State with treason, felony, or other crime,” &c., was most clearly intended to, and does, apply to every description of crime, and was adopted for no other purpose than that of securing a remedy, plain, full and adequate, to all the States of the Confederacy, by which they might recapture such fugitives as had violated their respective criminal laws. Hence every act that is criminal under the laws of the State where it is committed is clearly “of that class of crime contemplated by the Federal Constitution.”
Your Excellency will not, I am sure, controvert the fact that each of the Sovereign States of this Union has the right to determine for itself what shall and what shall not be criminal within the limits of its jurisdiction.
In the exercise of this right, Tennessee has, by statute, made negro-stealing a high crime, while Ohio, in the exercise of the same right, has seen proper to regard the act of stealing a negro within the limits of her jurisdiction as perfectly innocent; yet neither has the right, directly or indirectly, to interfere with the local policy of the other, and the fact that negro-stealing is not a crime under the laws of Ohio, certainly confers upon the authorities of that State no power or right to prevent its being made a crime in other States and punished as such. The practical effect of the decision of your Excellency in this case must be, if adhered to, to make the State of Ohio a “city of refuge” for the negro-thieves of fifteen of her sister States, where they may, with impunity, defy the violated law and offended justice of those States, and riot in security upon the proceeds of the sales of the negroes which they have stolen.
Are the people of Ohio ready to assume a position so unjust, so lawless and antagonistic to the rights and interests of other States—a position that can only be maintained by nullifying and totally disregarding the plainest provisions of the Constitution, while we cannot even avail ourselves of the poor privilege of resorting to the law of retaliation, because that Constitution which your Excellency and myself have each solemnly sworn we would support, makes it my duty, when your Excellency shall demand “a person charged with crime in Ohio, who shall have fled to Tennessee, to deliver him up,” and this duty shall be promptly, fully, and in good faith performed, so long as I hold the position which devolves it upon me?
I have thus briefly alluded to some of the arguments which lie upon the surface of this question, and which are too plain not to be comprehended at a glance, with the hope that your Excellency may be induced to reconsider and revise your decision; for if the policy declared by your Excellency is to be persisted in by those States where the institution of Slavery does not exist, your Excellency cannot be insensible to the fact that it must tend rapidly, to sever the ties of fraternal feeling which should bind us together as a people, destroy the harmony of our Federal Union, and precipitate a state of affairs which every Christian and patriot should deplore.
It is impossible to conceal the feet that already much has been done calculated to produce alienation and distrust. Day by day confidence is lessening in the power of mere constitutional guarantees to protect the rights of the citizen, or the States, because one by one of the guarantees of the Constitution have been shaken or totally disregarded, until it has become the imperative duty of every patriot to rebuke rather than pander to the dangerous fanaticism of the times.
I have the honor to be, very respectfully yours,
ISHAM G. HARRIS.