U.S. Supreme Court
Kentucky v. Dennison, 65 U.S. 24 How. 66 66 (1860)
Kentucky v. Dennison
65 U.S. (24 How.) 66
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. chanroblesvirtualawlibrary
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,
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
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.
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. chanroblesvirtualawlibrary