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EXTRADITION OF FUGITIVES FROM JUSTICE.--1796-'99. }
IN GENERAL ASSEMBLY, 4th November 1796, A. M. His excellency, the Governor, made the following communication, viz. 1st. Circular letter from Lord Dorchester, which is as follows; viz.? CIRCULAR
QUEBEC 31 March 1796 Sir A Certain Ephraim Barnes against whom the Grand Jury for the County and District of Montreal in this Province have found three seperate Bills one for a highway Robbery and Two for Horse Stealing together with another Delinquent by the name of James Clarkson Freeman against whom bills have been found also as accessary to Barnes in the Last mentioned Felonies have made their Escape from the Goal of the City of Montreal and as I am Informed have fled into one of the Neighbouring States I take the Liberty of' requesting that should they or either of them be found in your Government that your Excellency would be pleased to Cause them to be Delivered to the Bearer Mr. Jacob Rulin to be by him safely conducted into this Province in order that they may be brought to Trial
Similar requisitions having been made by the Governor of Newyork in the Two Instances of John Ryan and Ralph Phelps the former Charged with Murder and the Latter with a Forgery and to which Immediate and proper attention was paid here I have no reason to Doubt a similar service will be cheerfully reciprocated
The Bearer takes out Authenticated Copies of the Bills of Indictment found against the Culprits should the producing these Documents be in any wise thought necessary-Freeman it is reported came into this Province to avoid a prosecution for a Forgery committed in some one of the United States. I am Sir your Excellency's Most Obedient Humble Servant
DORCHESTER. His Excellency the Governor of Vermont or His Excellency the Governor
of Newyork or The Governor of any other of the United States
A True Copy of the Original Letter from Lord Dorchester to His Excellency the Governor of the State of Vermont &c &c
Attest TRUMAN SQUIER Secr'y.
i For an instance of refusal by the Governor and Council, Oct. 21, 1794, see ante, p.
2 These documents, with the exception of Mr. Liston's note, are here printed from Ms. Vt. State Papers, Vol. 24, pp. 86, 87. For Mr. Liston's note see printed Assembly Journal for 1796, p. 153.
2ndly. A note from R. Liston, the British minister, to the secretary of the United States, viz.
R. Liston presents his best compliments to Col. Pickering, secretary of state. By the enclosed paper it appears that the governor of the state of Vermont, having been requested by Lord Dorchester to deliver up a person by the name of Barnes, accused of highway robbery and horse stealing, who has taken refuge within the limits of that government, has denied complying with that demand, from an idea he is not authorized so to do by the late treaty between Britain and the United States. The natural construction of the article, which regards this matter, seems to be that the delivery up of a person charged with murder or forgery, is expressly stipulated and has consequently become a reciprocal obligation. But the conduct of the two governments, with respect to other delinquents, is left, as before the formation of the treaty, to their natural discretion ; and I beg leave to refer to you, sir, whether it may not be proper to continue to extend the prosecution of reciprocal restitution of culprits to all such offences as seriously effect [affect) the great interest of society.
Philadelphia, May 27th 1796.
3dly. A letter from Mr. Pickering to his Excellency Thomas Chittenden Esq. which is as follows viz.
DEPARTMENT OF STATE June 3 1796. Sir I have recd. from M' Liston the Minister Ple. of his B. Majesty a note dated the 27 ulto. of which the [inclosed) is a copy, one of the let. ters therein referred to, is Lord Dorchester's letter to you dated the 31st of March-the other is a letter from the sheriff. Montreal, stating (agreeably to M" Liston's note) your disposition to deliver up the offenders Barns and Freeman who had broken goal and fled from Canada, if to be found in your Government, provided the treaty between the U S. & G B. did not oppose it-1 have consulted the Atij Gen of the U S. on this point and stated our concurring opinion to the president, that M Liston's Ideas on this subject are perfectly correct, The reciprocal delivery of murderers and forgers is positively stipulated by the 27 article of the
The words of the treaty were, “that His Majesty and the United States, on mutual requisitions, by them respectively, or by their respective Ministers or officers, authorized to make the same, will deliver up to justice all persons” “charged with murder or forgery.” In the absence of any authority in the laws either of the State or the United States to issue a requisition or a warrant, even in cases of murder and forgery, and in view of the fact that neither of these crimes was charged in this case, it is not surprising that the governor doubted. His application for a statute of the state, giving him authority to issue warrants, clearly indicates one ground of his doubt, and the fact that the crimes charged in the requisition were not provided for in the treaty, was another. The treaty of 1842 specified additional crimes, and in terms authorized "the respective judges and other magistrates of the two Governments” to issue warrants. The act of Congress of 1848 gave this power to courts, thus relieving the governors of states from any responsibility in the case of criminals from foreign countries, as does the existing statute. The delay in this case, when his desire to comply with the requisition was avowed, proves the governor's abundant caution.
treaty—the conduct of the two governments with respect to other offenders is left, as before the treaty, to their mutual discretion-but this discretion will doubtless advise the delivery of culprits for offences which affect the great Interests of society-The president approves of this opinion and of the communication of it to your Excellency.
Lord Dorchester's information respecting freeman is right-He had been convicted of forgery in the State of N Jersey, and some four or five years ago broke goal & fled to Canada.
The rule prescribed in the treaty for the delivery of persons charged with murder and forgery, will apply to those charged with other offences to wit—to be done on such evidence of criminality as by the laws of the place where the fugitive shall be found, would justify his arrest & commitment for trial, if the offence had been there committed. The expence also to be borne by those, who ask for the delivery of the fugitive
I have honor to be, with great respect, Your Excellency's most obt. servt.
TIMOTHY PICKERING. His Excellency Governor Chittenden Rutland Vermont
After requesting the advice of the house, His Excellency withdrew, and the house proceeded to business.
On motion, Ordered, that a committee of three to join such committee as the council shall appoint, be chosen, to draft and report to this house a bill, directing the mode of delivering up fugitives who have been guilty of offences in the province of Canada, and have fled to this state. Members chosen, Messrs. (Daniel] Farrand, [Amos] Marsh, and [Matthew] Lyon.
P. M.- Mr. Marsh moved for liberty to lay on the table the following resolution, namely,
Whereas his excelleney, the Governor of this state, has communicated to the house a request from Lord Dorchester, to deliver up (if found within this state) two persons (to wit) Ephraim Barns, indicted for highway robbery and horse stealing, in the province of Canada, and James Clarkson Freeman, indicted in said province, for being accessary to said Barns in the aforesaid crimes ; and has requested the advice of this house relative to the aforesaid request,
Therefore, Resolved, That it is the opinion of this house, that the great interest of society requires that offenders of the above description should be brought to condign punishment, and that his excellency be advised to deliver up the aforesaid culprits (if to be found within this state) agreeably to the request of Lord Dorchester.
Which being read, was adopted as a resolution of this house.
That Governor and Council has received a resolution of the house, appointing a committee to join such committee as the council shall appoint, to draft and report "a bill directing the mode of delivering up fugitives, who have been guilty of offences in the province of Canada and have fled into this State." That the object of his excellency, in the communication and request he made this morning, was to have a general law passed, prescribing the mode in which the chief magistrate shall proceed in all cases in which fugitives shall be requested to be delivered up, who have fled to this state from any foreign state; that the powers of the committee, being contined to the province of Canada, does [do] not fully embrace the object contemplated by his excellency.the Gov
1 Stephen Jacob was joined from Council.
ernor and Council, and they therefore wish the powers of the committee may be so far augmented as to authorize them to bring in a general bill: and he withdrew.
The house took under consideration the resolution appointing a committee to draft and report to the house a bill directing the mode of delivering up fugitives who have been guilty of offences in the province of Canada, and the message of Mr. Jacob, and on Motion, Resolved, That the said resolution be amended, by authorizing the Committee to make provision for the apprehension of fugitives who have fled from any of the United States, or from either of the provinces of Canada.'
An unsuccessful search has been made for any report from the committee, or any act of the legislature on the subject. In 1799, however, the question came up again, on an application from the then acting governor of Massachusetts to the governor of Vermont, for the extradițion of Peter Gilson, who had been charged with the crime of forgery in Massachusetts. Gov. Tichenor submitted the application to the Council, when it was decided that Gilson could be arrested and extradited without any authority of the governor, and the agent of Massachusetts was referred to counsel for advice. This decision implied that some act, either of the United States or of Vermont, covered the case ; but on further examination, the Council determined that a warrant should be issued by the governor, and the following form was adopted, with the resolution appended to provide for the same warrant in subsequent
“STATE OF VERMONT SS. To the Sheriff's of the several Counties in this State of Vermont, or their
several Deputies, Greeting[L. S.] "Whereas application has been made to the Executive Authority of the state of Vermont, by the Executive authority of the Commonwealth of Massachusetts, accompanied with an authenticated copy of an indictment against Peter Gilson of Peperell, in the county of Middlesex, and Commonwealth of Massachusetts, annexed thereto, by which it appears, that the said Peter Gilson is charged with the crime of forgery, and that he has fled from justice, and is now residing in Hartland, or some other town, within the State of Vermont; and the executive authority of the said Commonwealth of Massachusetts, according to the Provisions of the Constitution of the United States, having requested the executive authority of the said State of Vermont to cause the said Peter Gilson to be apprehended and to be delivered over to Simon Larned Esquire, Sheriff of the County of Berkshire in said Commonwealth, ihat he may be brought to justice.
•These Presents, are therefore, by the authority vested in me by the Constitution and laws of the United States, and by and with the advice of the Council of this State, to command you, and each of you, immediately and without delay, to cause the said Peter Gilson, if he may be found within your several precincts, to be arrested, and to be secured, within some good and sufficient goal, within the county in which such arrest shall be made, if there be such goal within such county, and if there be no such goal within such county, then to be secured within
1 Printed Assembly Journal for 1796, pp. 152-154, 160, 161. ? For the action of the Council on Gilson's case, see ante, pp. 219-20, 226.
good and sufficient goal in some adjacent county, and immediately upon such arrest and commitment, to give notice thereof, to the subscribing authority. And the keeper of such goal is hereby directed and commanded, to receive the said Peter Gilson, and him safely keep, and deliver to sucb agent, as is or shall be duly authorized and empowered by the executive authority of the said Commonwealth of Massachusetts, to receive the said Peter Gilson-And if no such agent shall appear, within six months after such arrest, to receive the said Peter, then the keeper of said goal is hereby directed and commanded, to release the said Peter Gilson. And for all and singular, the doings of such keeper of the goal, agreeably to the precepts hereof, a copy of this warrant, attested hy the officer executing the same, shall be a sufficient authority.
“Hereof fail not, but of this warrant, with the doings thereon, make due return.
"In Testimony whereof, I, Isaac Tichenor, Governor, and Commander in chief, in, and over the state of Vermont, have caused the seal of this State to be hereunto atlixed, this 17th day of October A. D. 1799.
ISAAC TICHENOR. “By his Excellency's Command
RICHD. WHITNEY Secy.” And Resolved, further, That in future, on application to the Governor and commander in chief, in and over this State, or to the supreme executive power thereof, for a similar purpose; That the Governor, or person filling and exercising the office of Governor, for the time being, be and he hereby is advised by Council, to issue his warrant or precept, mutatis mutandis, agreeably to the foregoing form, without further or other advice of Council.