Extradition Clause question in connection with dispute over slavery

Earl Maltz emaltz at camden.rutgers.edu
Tue Nov 3 11:07:33 PST 2009


When is the extradition taking place?  Before or after the trial?  If 
before the trial, how can we know the conviction is "fraudulent."  If 
after the trial, then are you suggesting that the extraditing state 
should openly harbor a convicted felon from another state?

Sorry, can't run a railroad like that.

At 01:53 PM 11/3/2009, Paul Finkelman wrote:
>Even in the case of Scottboro where the entire world knew it was a 
>fraudulent conviction?
>
>
>----
>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: "Paul Finkelman" <paul.finkelman at yahoo.com>, "Paul 
><paul.finkelman at albanylaw.edu>Finkelman" 
><Paul.Finkelman at albanylaw.edu>, "conlawprof at lists.ucla.edu" 
><conlawprof at lists.ucla.edu>
>Date: Tuesday, November 3, 2009, 1:51 PM
>
>I believe that the relevant states would be under a constitutional 
>duty to extradite.
>
>At 01:27 PM 11/3/2009, Paul Finkelman wrote:
> > how do you respond to the refusal to extradite one of the Scottsboro boys?
> > Or the refusal to extradite a black charged with a felony if the 
> state seeking the alleged criminal had segregated juries?
> >
> > ----
> > 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: "Paul Finkelman" <paul.finkelman at yahoo.com>, " Paul 
> <paul.finkelman at albanylaw.edu>Finkelman" 
> <Paul.Finkelman at albanylaw.edu>, "conlawprof at lists.ucla.edu" 
> <conlawprof at lists.ucla.edu>
> > Date: Tuesday, November 3, 2009, 1:23 PM
> >
> > Strikes me as an odd definition of "permissible", considering 
> that the opinion clearly concluded that the Constitution obligated 
> Dennison to honor the extradition request.
> >
> > The other point is one that I had not thought of.   It points up 
> a more general problem which became acute as the dispute over 
> slavery escalated.  The system simply can't work if you have one or 
> both parties consciously acting in bad faith.
> >
> > At 01:07 PM 11/3/2009, Paul Finkelman wrote:
> > > 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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