Extradition Clause question in connection with dispute over slavery

Tue Nov 3 10:07:57 PST 2009

If there is no remedy it must be "permissible."  I think by the way, that Dennison was correctly decided and that Bransted was a huge error in legal and constitutional history and jurisprudence.  The extradition clause has long been a safety valve for political refugees.  The Gov. of Michigan refused to extradite one of the Scottsboro Boys who escaped to his state; Earl would call that nullification:  I would call it justice. 

Latimer raises a more complicated question. If Latimer had been extradited for theft and then been enslaved, would the state of Va. have violated the extradition clause since extradition requisition was clearly fraudulent?  Seems to me that in fact Mass. is correct in refusing Va's request because Mass. knows it is a fraud.  They are not planning to try him for larceny so Mass. should not extradite him on that charge.

----

Paul Finkelman

President William McKinley Distinguished Professor of Law

Albany Law School

80 New Scotland Avenue

Albany, NY  12208

518-445-3386 (p)

518-445-3363 (f)

paul.finkelman at albanylaw.edu

www.paulfinkelman.com

--- On Tue, 11/3/09, Earl Maltz <emaltz at camden.rutgers.edu> wrote:

From: Earl Maltz <emaltz at camden.rutgers.edu>
Subject: RE: Extradition Clause question in connection with dispute over slavery
To: "Finkelman, Paul <paul.finkelman at albanylaw.edu>" <Paul.Finkelman at albanylaw.edu>, "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>
Date: Tuesday, November 3, 2009, 12:58 PM

I don't read Dennison to conclude that the refusal to extradite was "permissible."  Rather, Taney pretty clearly concludes that the refusal to extradite violated the Constitution, but that the Court could not provide a remedy for the violation.

At 12:14 PM 11/3/2009, Finkelman, Paul <paul.finkelman at albanylaw.edu> wrote:
> I have looked at lots of these cases in state archives.  Governors refuse to comply with extradition requisitions for many reasons at this time. There was one on the NY State archives were the requistion lacked a "ribbon" under the wax seal and so was insufficent.  The refusal to extadite began in the 1790s when Virginia would not return men to Pennsylvania accused of kidnapping (I discuss this at length in Chapter 4 of my book Slavery and the Founders:  Race and Liberty in the Age of Jefferson).  Northern governors often refused to return alleged "fugitives from justice" when it was clear that the charge (stealing their own clothes for example) was a fraud and that the real issue was a fugitive slave.  The question is what constitutes "nullification"?  Under Ky v. Dennison this act would have been permissible even if not desireable.  In the 19th century Govs. appear (from what I have seen) to actually read over the charges and determine if it
 is real or bogus and if it is politically motivated.  You might compare it to In re Kaine, 55 US 105 (1853) in which the US refused to send Kaine back to Britain on a murder charge (much more serious than the bogus charge in Latimer) on the grounds that the murder charge was political (even though Kaine may have actually killed someone).  On remand Justice Nelson released Kaine, an Irish national.  Was this "nullification" of the Webster-Ahsburton Treaty?
> 
> 
> *************************************************
> Paul Finkelman, Ph.D.
> President William McKinley Distinguished Professor of Law
> Albany Law School
> 80 New Scotland Avenue
> Albany, NY 12208
> 
> 518-445-3386 (p)
> 518-445-3363 (f)
> 
> paul.finkelman at albanylaw.edu
> www.paulfinkelman.com
> *************************************************
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz [emaltz at camden.rutgers.edu]
> Sent: Tuesday, November 03, 2009 11:21 AM
> To: conlawprof at lists.ucla.edu
> Subject: Extradition Clause question in connection with dispute over slavery
> 
> I have an Extradition Clause question that arose out of the Latimer
> case in 1842-43 (a case which is well known to those interested in
> the issue of fugitive slaves).
> 
> Latimer was a fugitive slave from Norfolk who was pursued to Boston
> by his master, James Gray.  The tumult surrounding Gray's effort to
> return Latimer to slavery forced Gray to allow Bostonians to purchase
> Latimer's freedom at a below market price.  Gray then returned to
> Norfolk, swore out an affidavit charging Latimer with larceny (not
> for escaping, but for allegedly stealing other property) and
> persuaded the governor of Virginia to seek Latimer's
> extradition.  The governor of Massachusetts refused to honor the
> extradition request on the ground that the affidavit did not provide
> sufficient proof Latimer's guilt on the larceny charge.
> 
> My initial impression is that, leaving issues of right and wrong
> aside, the decision of the Massachusetts governor is nothing more
> than an exercise in the nullification of the Extradition Clause.  But
> I don't know enough about extradition law to be fully confident in
> that judgment.
> 
> Anyone else have a view?
> 
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