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sometimes the door of the safe was left open. The regard such evidence. The presumption should be, zo jury could from the evidence have found that the theft far as this court is concerned, that the jury based their was committed by some person entering from the

verdict upon legal evidence only. street and finding the safe open, who abstracted the N error to the Circuit Court of the United States for plaintiff's package without being observed by any one the Northern District of Illinois. The opinion in the room, and that leaving the property thus ex- states the case. posed was gross negligence. There was some conflict and confusion in the evidence on these points, but

HARLAN, J. This is a writ of error from a judga these were matters exclusively within the province of

ment for the sum of $10,000, the amount assessed as the jury.

damages sustained by the defendant in error, in conseThe fact that property of the bank was stolen at quence of personal injuries received while riding, as a the same time from the same placo is not conclusive passenger, in a sleeping-car which belonged to the Pullagainst the allegation of gross negligence. Dorman v.

man Palace Car Company, but constituting, at the time Jenkins, 2 Ad. & Ell. 256; Griffith v. Zipperuick, 28

the injuries were received, a part of a train of cars Ohio St. 338; Tracy v. Wood, 3 Mason, 132; Wilson v. managed and controlled by the Pennsylvania Company, McIntosh, 1 Stark. N. P. 237.

as lessee and operator of the Pittsburg, Fort Wayne These were all cases of gratuitous bailments and the

and Chicago railway. The action was commenced iu question of gross negligence was left to the jury, not

the Supreme Court of Cook county, Illinois, against withstanding that the bailee took the same care of the

the Pennsylvania Company, the Pittsburg, Fort Wayne property as he did of his own which was stolen at the and Chicago Railroad Company, and the Pullman same time.

Palace Car Company. It was subsequently dismissed It has been argued on the part of the respondent by the plaintiff against all tho defendants except tho that even assuming the receipt of special deposits to

Pennsylvania Company, and then removed for trial have been beyond the legal power conferred upon the

into tho Circuit Court of tho United States for the bank by the law under which it was incorporated, yet

Northern District of Illinois, where the judgment that it having in fact received the plaintiff's property complained of was rendered. into its custody, it cannot set'up its own want of corpo

The facts set forth in tho bill of exceptions, so far as rate power as a defense to an action for not returning

it is material to detail them, are these: it, or for losing it by gross negligence. The conclusion

On the 5th of June, 1876, Roy, the defendant in which we have reached on the question of power ren

error, purchased at the office of the lessee company, in ders it unnecessary to pass upon this point.

the city of Chicago, a “first-class railroad ticket" After a careful examination of the whole case we

from that city to Philadelphia, over the line of that think the judgment should be affirmed.

company, paying therefor the sum of $14.40. At tho All concur.

same timo and place, and of the same person, he par. chased a sleeping-car ticket, issued by tho Pullman

Palace Car Company, for the route between tho same CARRIER OF PASSENGERS- LIABILITY OF

cities, and for that ticket ho paid the additional sum RAILROAD COMPANY FOR INJURY TO of $5. He took the train the same day, going immePASSENGER IN PULLMAN CAR.

diately into tho section of tho sleeping-car correspoud


The next morning at Alliance, Ohio, upon tho inviNOVEMBER 22, 1880.

tation of a friend, travelling upon the samo train, he

entered tho sleeping-car in which that friend was PENNSYLVANIA COMPANY, Plaintiff in Error, v. Roy. riding, and there engaged with him in conversation.

While so engaged tho upper berth of the section, in A carrier of passengers, for hire, is bound to observe tho which they were sitting, fell. Thereupon the porter of utmost caution characteristic of very careful, prudent the sleeping-car camo at onco and put up the berth,

He is responsible for injuries received by passen. in the course of their transportation, which might

saying it would not fall again. Shortly thereafter the gers, have been avoided or guarded against by the exercise,

berth fell a second time, striking the plaintiff upon the upon his part, of extraordinary vigilance, aided by the head, injuring his brain, incapacitating him from the highest skill. Such caution and diligence extends to all performance of his usual avocations, and necessitating the appliances and means used by the carrier in the medical treatment. transportation of the passenger. He must provide cars After tho second falling of the berth, the brace of or vehicles adequate, that is, sufficiently secure as to arm supporting it was found to be broken. strength and other requisites, for tho sase conveyance The evidence introduced by the plaintiff tended also of passengers; and for the slighest negligence or fault, in that regard, from which injury results to tho passen

to show that tho Pennsylvania Company provided cars ger, the carrier is liable in damages. A passenger pur

in which passengers, having railroad tickets, could ride chased from a railroad company a ticket over its line,

without purchasing a sleeping-car ticket; that Roy had and at the same time, from the Pullman Palace Car much experience in travelling, and would have gone Company, a ticket entitling him to a berth in one of its into one of those cars had he not purchased a sleeping sleeping-cars, constituting a part of the train of tho car ticket; that at the time he purchased the sleepingrailroad company. In the courso of transportation he car ticket he did not know what company ran the in which he was at the time riding. Held, that for the purposes of the contract with the railroad company for

was a Pullman car; that tho Pullman Palace Car Comtransportation, and in view of its obligation to uso only

pany was engaged in furnishing cars to be run in the cars that were adequate for safe conveyance, tho sleep

trains of railroad companies; that besides the general ing-car company, its conductor and porter, were in law

conductor of tho train, there was a conductor, in uni. the servants and employees of the railroad company. form, and a porter, whose duty it was to make up tho Their negligence, or the negligence of either of them, berths and attend to tho wants of passengers occupy. as to any matters involving the safety or security of ing the sleeping-car. passengers, was the negligence of the railroad company. In such case, the passenger injured being entitled only

Upon the trial the plaintiff introduced a time and to compensatory damages, evidence as to his poverty, or

distance card of tho defendant corporation, issued, An exception to the admission of irrelevant testimanty year 1876, prior to the date of his injuries. That cari, is cancelled when the court, before the final submission referring to the “Fort Wayne and Pennsylvania R. of the case to the jury, distinctly instructs them to dis- R. line," stated that three express trains left Chicago


daily, one “with popular vestibule sleeping-car," one error, either in excluding the evidence offered by the “with drawing-room and hotel-car," and ono with defendant, or in the charge to the jury. The court drawing-room sleeping-car.” It gavo notice that “pass- only applied to a new state of faots, principles very age, excursion, and sleeping-car tickets" could be pur- generally recognized as fundamental in the law of chased at the defendant company's office in Chicago. passenger carriers. Those thus engaged are under an Referring to the “Fort Wayne and Pennsylvania obligation, arising out of the nature of their employline," the same card announced that “no road offers ment, and ou grounds of public policy, vigorously enequal facilities in the number of through trains forced, to provide for the safety of passengers whom equipped with Pullman palace sleeping-cars." It states, they have assumed, for hire, to carry from one placo among the advantages of the “ Pittsburg, Fort Wayne to another. In Philadelphia & Reading Railroad and Pennslyvania through line," that the latter was Company v. Derby, 14 How. 486, it was said that when the “only line running three through trains, with carriers undertake to convey persons by the powerful Pullman palace cars,” and “the only line ruuning and dangerous agency of steam, public policy and sleeping-cars from Chicago and intermediate stations safety require that they be held to the greatest possible to Philadelphia without change.” The same card gave care and diligence- that the personal safety of passenthe rates charged for berths and sections in Pullman gers should not be left to the sport of chance, or the negsleeping-cars from Chicago to points east of that city.ligence of careless agents. This doctrine was expressly

The defendant, to maintain the issues on its part, affirmed in Steumboat New World v. King, 16 How. offered to prove:

474. In Stokes v. Saltonstall, 13 Peters, 191, affirming 1. That the sleeping-car in which the accident oc- the decision of Chief Justice Taney on the Circuit, we curred, and all the sleeping-cars then and theretofore ) said, that although the carrier does not warrant the on the defendant's line since the 27th January, 1870, safety of the passengers at all events, yet his underwere owued by the Pullman Palace Car Company, a taking and liability as to them go to the extent that corporation of the State of Illinois, and not by the de- | he, or his agents, where he acts by agents, shall possess fendant; that said sleeping-cars were run in the same competent skill, and as far as human care and foretrains with the defendant's cars; that holders of rail- sight can go, he will transport them safely. The prinroad tickets were entitled to ride in said sleeping-cars, ciples there announced were approved in Railroad provided they also held sleeping-car tickets.

Company v. Pollard, 22 Wall. 350, where, speaking by 2. That the Pullman Palace Car Company, and it the present chief justice, we said that we saw no necesonly, issued tickets for sale, entitling passengers to ride sity for reconsidering Stokes v. Saltonstall. in said sleeping-cars; that such tickets were plainly These and many other adjudged cases, cited with distinguishable from railroad tickets, and were sold at approval in elementary treatises of acknowledged offices established by said company, and indicated as authority, show that the carrier is required, as to pasplaces for the sale of such tickets; that the plaintiff sengers, to observe the utmost caution characteristic purchased the sleeping-car ticket of the same person of of very careful, prudent men. He is responsible for whom he bought the railroad ticket; that the office injuries received by passengers, in the course of their where purchased indicated by plain lettering upon its transportation, which might have been avoided or door that it was a place for the sale of Pullman Palace guarded against by the exercise upon his part of extraCar Company tickets, as well as railroad tickets. ordinary vigilance, aided by the highest skill. And

3. That the Pullman Palace Car Company employed this caution and vigilance must necessarily be expersons to take charge of its cars, and whilst in use tended to all the agencies or means employed by the they were in the immediate charge of a conductor and carrier in the transportation of the passenger. Among a porter employed by that company; that such con- the duties resting upon him is the important one of ductor and porter were the only persons who had providing cars or vehicles adequate, that is, sufficiently authority to manage and control the interior of said secure as to strength and other requisites, for the safe cars, and the berths and seats and the appurtenances conveyance of passengers. That duty the law enforces thereto.

with great strictness. For the slightest negligence or To this proof the plaintiff objected, and the objec- fault in this regard from which injury results to the tion was sustained, to which ruling the company ex- passenger, the carrier is liable in damages. Theso cepted.

doctrines to which the courts, with few exceptions, The court thereupon charged the jury that the have given a firm and steady support, and which it is proof tended "to show that the injury was received neither wise nor just to disturb or question, would, by reason of the negligence of the defendant's agents however, lose much, if not all, of their practical value, or servants, or by some negligence in the construction if carriers are permitted to escape responsibility upon of the car in which the plaintiff was riding.” To that the ground that the cars or vehicles used by them, and charge the company at the time excepted, upon the from whose insufficiency injury has resulted to the ground that it was unsupported by the testimony, and passenger, belong to others. because it assumed as a fact that the persons in charge The undertaking of the railroad company was to of the sleeping-car were the company's agents or carry the defendant in error over its line in consideraservants.

tion of a certain sum, if he elected to ride in what is The court further charged the jury that “the defend- known as a first-class passenger car; with the privilege, ant has offered in your presence to prove that the car nevertheless, expressly given in its published notices, in which the plaintiff was injured was not the car or of riding in a sleeping-car, constituting a part of the the actual property of the defendant, but was the carrier's train, for an additionat sum paid to the comproperty of another corporation. But I instruct, as a pany owning such car. part of the law of this case, that if this car composed As between the parties now before us, it is not maa part of the train in which the plaintiff and other terial that the sleeping-car in question was owned by passengers were to be transported upon their journey the Pullman Palace Car Company, or that such comaud the plaintiff was injured while in that car, with- pany provided at its own expense a conductor and out any fault of his own, and by reason either of the porter for such car, to whom was committed the imdefective construction of the car or by some negligence mediate control of its interior arrangements. The on the part of those having charge of the car, then the duty of the railroad company was to convey the pasdefendant is liable."

senger over its line. In performing that duty, it could To that charge also the defendant excepted.

not, consistently with the law and the obligations We are of opinion that there was no substantial arising out of the nature of its business, use cars or

vehicles whose inadequacy or insufficiency, for safe jury should exclude from consideration any evidence conveyance, was discoverable upon the most careful in relation to the pecuniary condition of the plaintiff, and thorough examination. If it chose to make no the contention of the defendant is, that the original such examination, or to cause it to be made – if it error was not thereby cured, and that we should elected to reserve or exercise no such control or right assume that the jury, disregarding the court's perempof inspection, from time to time, of the sleeping-cars tory instructions, made the poverty of the plaintiff an which it used in conveying passengers, as it should element in the assessment of damages. And this, exercise over its own cars — - it was chargeable with although the record discloses nothing justifying the negligence or failure of duty. The law will conclu- conclusion that the jury disobeyed the direction of the sively presume that the conductor and porter assigned court. To this position we cannot assent, although by the Pullman Palace Car Company to the control of we are referred to some adjudged cases which seem to the interior arrangements of the sleeping-car in which announce the broad proposition that an error in the Roy was riding when injured, exercised such control admission of evidence cannot afterward be corrected with the assent of the railroad company. For the pur- by instructions to the jury, so as to cancel the excepposes of the contract under which the railroad com- tion taken to its admission. But such a rule would be pany undertook to carry Roy over its line, and in view exceedingly inconvenient in practice, and would often of its obligation to use only cars that were adequate seriously obstruct the course of business in the courts. for safe conveyance, the sleeping-car company, its con- It cannot be sustained upon principle or by sound ductor and porter were in law the servants and em- reason, and is against the great weight of authority. ployees of the railroad company. Their negligence, or The charge from the court that the jury should not the negligence of either of them, as to any matters in- consider evidence which had been improperly advolving the safety or security of passengers while being mitted was equivalent to striking it out of the case. conveyed, was the negligence of the railroad company. The exception to its admission fell when the error was The law will not permit a railroad company engaged in subsequently corrected by instructions too clear and the business of carrying persons for hire, through any positive to be misunderstood by the jury. The predevice or arrangement with a sleeping-car company, sumption should not be indulged that the jury were whose cars are used by and constitute a part of the too ignorant to comprehend, or were too unmindful of train of the railroad company, to throw off the duty their duty to respect, instructions as to matters pecuof providing proper means for the safe conveyance of liarly within the province of the court to determine. those whom it has agreed to convey. 2 Kent's Com. It should rather be, so far as this court is concerned, (12th ed.) 600; 2 Pars. on Cont. (6th ed.) 218-19; Story that the jury were influenced iu their verdict only by on Bail., $$ 601, 601a, 602; Cooley on Torts, 612; Whar- legal evidence. Any other rule would make it neces. ton's Neg. (2d ed.), S 627, et seq. ; Chitty on Carriers, sary in every trial where an error in the admission of s. p. 256, et seq., and cases cited by the authors.

proof is committed, of which error the court becomes It is also an immaterial circumstance that Roy, when aware before the final submission of the case to the injured, was not sitting in the particular sleeping-car jury, to suspend the trial, discharge the jury, and tu which he had been originally assigned. His right, commence anew. A rule of practice leading to such for a time, to occupy a seat in the car in which bis results cannot meet with approval. friend was riding, was not, and under the facts dis

3. There was, however, an error committed upon the closed, could not be questioned.

trial, to which exception was duly taken, but which Whether the Pullman Palace Car Company is not does not seem to have been remedied by any portion of also and equally liable to the defendant in error, or the charge appearing in the bill of exceptions. The whether it may not be liable over to the railroad com- plaintiff was permitted, against the objection of the pany for any damages which the latter may be required defendant, to give the number and ages of his chil. to pay on account of the injury complained of, are dren

1-a son ten years of age, and three daughters of questions which need not be here considered. That the ages, respectively, of fourteen, seventeen and corporation was dismissed from the case, and it is not twenty-one. This evidence does not appear to have necessary or proper that we should now determine any been withdrawn from the consideration of the jury. question between it and others.

It certainly had no legitimate bearing upon any issue 2. Upon the trial below the plaintiff was allowed, in the case. The manifest object of its introduction against the objection of defendant, to make proof as was to inform the jury that the plaintiff had infant to his financial condition, and to show that after being children dependent upon him for support, and conseinjured, his sources of income were very limited. quently, that his injuries involved the comfort of his

This evidence was obviously irrelevant. The plaint-family. This proof, in connection with the impairment iff, in view of the pleadings and evidence, was entitled of his ability to earn money, was well calculated to to compensation and nothing more for such damages arouse the sympathies of the jury, and to enhance the as he had sustained in consequence of injuries received. damages beyond the amount which the law permitted, But the damages were not in law dependent in the that is, beyond what was, under all the circumstances, slightest degree upon his condition as to wealth or fair and just compensation to the person suing for the poverty. It is manifest, however, from the record, injuries received by him. How far the assessment of that the learned judge who presided at the trial sub- damages was controlled by this evidence as to tho sequently recognized the error committed in the ad- plaintiff's family it is impossiblo to determine with mission of that testimony. After charging the jury absolute certainty: but the reasonable presumption is that the measure of plaintiff's damages was the pecu- that it had some influence upon the verdict. niary loss sustained by him in consequence of the in- The court, in a manuer well calculated to attract the juries received, and after stating the rules by which attention of the jury, withdrew from their considerasuch loss should be ascertained, the court proceeded: tion the evidence touching the financial condition of “But the jury should not take into consideration any the plaintiff, but as nothing was said by it touching the evidence touching the plaintiff's pecuniary condition evidence as to the ages of his children, they had the at the time he received the injury, because it is wholly right to infer that the proof as to those matters was immaterial how much a man may have accumulated not withdrawn, and should not be ignored in the asup to the time he is injured; the real question being sessment of damages. how much his ability to earn money in the future has For this error alone the judgment is reversed, been impaired."

and the cause remanded for a new trial. It is so orNotwithstanding this emphatic direction that the dered.

INTER-STATE EXTRADITION-DUTY OF EX- It will not do to say that it devolves upon the execu-

tive of North Carolina to enter the District of Columbia IS DEMANDED.

and demand one of its citizens, peremptorily, without

advising with the executive officer of the law in the DISTRICT OF COLUMBIA SUPREME COURT, OCT. 1880.

District with reference to the matter. That would be

to deliver over an equal jurisdiction into the keeping STATE OF NORTH CAROLINA V. PERRY.

of another jurisdiction. In the very nature of the

case, in the eqrelative position of the two sovereignIn the rendition of fugitives from justice under the United

ties, in subordination to a higher sovereignty, the conStates laws, the executives of the jurisdiction demand

sultation of the executive will of either jurisdiction is ing the fugitive and that where he is found stand coequal, and are to exercise their authority in the

necessarily and unavoidably implied. This cannot be protection of the laws of their respective jurisdictions abnegated by the executive called upon to perform the and of the citizens thereof.

duty, without postponing the power and guardianship The delivering up a fugitive by an executive from whom it of his equaily high jurisdiction to the power making

is demanded is a discretionary duty to be exercised the demand. Now, that never entered into the scheme

within authority and right and to be governed by law. of upion between the States - into a scheme of governAn executive from whom a fugitive is demanded can, in

ment in which equal jurisdictions occupy correlative determining whether such fugitive shall be delivered up, go no further than to examine whether in the afi

positions under the Constitution of the United States. davit or indictment transmitted by the demanding ex

These jurisdictions stand upon an equal plane. Each ecutive as a part of the record, a crime is substantially

is charged under the Constitution with the execution charged.

of legal power and legal conservation, in precisely the

same degree. A PPLICATION, under a requisition by the governor That being the status of the power appealing, and of of North Carolina, for the delivering up of de

the power appealed to, what becomes the duty of the fendant charged to be a fugitive from justice from

executive in requisition, and in response to requisithat State. The requisition was made upon the chief

tions ? That duty is very clearly and simply manijustice of the Supreme Court of the Distriot of

fested in the Constitution of the United States, and Columbia, where defendant was found, as chief ex

in the law giving effect to it. Where a crime has been ecutive of the jurisdiction. The opinion states the

committed, treason, felony, or other crime, and the facts.

party has been duly accused under the law of the CARTTER, C. J. If there is nothing more to be pre- jurisdiction, it becomes the privilege, and is made the sented in this case I will announce the conclusion that duty of the executive against whose laws the offense is I have been forced to with some of the reasons therefor. perpetrated, where the party has fled from justice, to

The governor of North Carolina, as the executive of demand of the authority of the co-ordinate jurisdicthat State, has made his requisition upon me as the tion, in which he has taken refuge, his person, to chief magistrate of this jurisdiction, for the delivery answer for the offense. That is his privilege under the of Samuel L. Perry, alleged to be a refugee from jus- Constitution, his duty under the Constitution and tice in that State.

under the laws, according to the mode manifested by In the discussion here by counsel, which has been the law for the exercise of it. conducted with great earnestness and learning, it has The Constitution further provides that where a party been claimed on one side, that in the exercise of the is charged with crime, and has fled before the process duty of responding to this requisition, the chief magis- of justice from the jurisdiction in which the crime trate should be permitted the widest discretion; that was committed, and taken refuge in another jurisdicthis is an appeal, under the Constitution, to the execu- tion, the jurisdiction where refuge is sought shall tive of this jurisdiction that simply advises his discre- render him up. Here is a correlative duty as much tion. On the other hand, it has been as earnestly enjoined upon the chief magistrate of the jurisdiction contended that the appeal to this jurisdiction is an appealed to as the right to demand is guaranteed to appeal to ministerial instrumentality alone, by which the jurisdiction demanding. There will be no differthe executive of this jurisdiction becomes the minis- ence of opinion how this should be exercised as a ter of the will of the jurisdiction making the requi- practical proposition. sition.

The question made here, and which has been preNow, I think both of these propositions are unallow- sented with a view to the enlightenment of my action able. And I have given to this question a great deal of in this matter, has been to work out the limitations on reflection, not only during the past two or three days, .the duty. I repeat, there is no doubt this duty ought but in the discharge of this duty heretofore.

to be practically performed in good faith, and in politiHere are two jurisdictions independent of each cal and executive wisdom. But wbat instrumentaliother, exercising their respective functions under the ties may be resorted to to enlighten the understanding Constitution and laws of the United States. The ex- under the circumstances, complicates the question. ecutives of these jurisdictions sustain protective rela- And that brings me back to what I said before, that tions to the inhabitants and to the laws of their neither of the extreme positions in the argument in respective jurisdictions. And so emphatically is this the case is contemplated by the Constitution. It is the case, that the Federal sovereignty, either for the said on one side that this is a discretionary duty; and want of inherent power or of express power in the the meaning of that is according to the executive will Constitution, has failed to affix a sanction to it. The so should he act. Supreme Court of the United States has declared in Now that is so if the proposition means the exercise effect, in the case of Kentucky v. Dennison, that no of a discretion within authority — within right, as well sanction exists except a moral one.

as within power; for I am aware I have the physical Now, if this is evidence of any thing, it is evidence power to discharge this man or to hold him; and I am that in this respect the jurisdictions are co-equal in aware that the public would be remediless by the act, sovereignty, co-equal in the guardianship which the temporarily, not ultimately, I hope, in the exercise of executor of the law is bound to exercise over its ad- such a judgment or determination as that. But the ministration, and over the rights of citizenship. These power to do a thing when enlightened by constitutional jurisdictions standing co-equal, in a correlative posi- and legal duty signifies the power to do it within the tion under the Constitution, are to exercise their limitations of that duty, and no higher power, no authority in the protection of the laws of their respecto capricious, no arbitrary power, the exercise of no mere ive jurisdictious, and of the citizens thereof.

physical power. It is a discretion revolving within the

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enlightenment of the law, a discretion which considers technical requisites of the pleadings, or to inquire into the constitutional and legal proprieties of the subject matters of defense under it? I think not; and at this that is being acted upon; that is, power under the point you do come to tho grave proposition in the disConstitution and the law, as it is before the executivo charge of executive duty, of entering into a co-ordicharged with the duty of rendition, or with the duty nate jurisdiction in one sense, a forum in the details of requisition.

of administrative justice. Tho Constitution never Now, inasmuch as this power is to be exercised in contemplated this. The Constitution never contemthe light of the Constitution and undertho limitations plated the transfer of the trial from the venue laid in of the law regulating its exercise, what authorities the indictment. may the executive consult in its discharge? It is urged But you invade another principle; you invade judion one side that he may look at the seal to the certificial inquiry, when you enter into it in its details; you cate, and if it is the great seal of the State, to the cer- make an administrative or executive officer discharge tificate of its chief magistrate, and he should then functions judicial. Now, while they both exist in the close his eyes and make the order. That his duty is a same person, as was claimed yesterday, aud while in mere ministerial duty, the duty of a clerk, and not a this instance, and perhaps in all instances in connecduty involving the exercise of judgment and discre- tion with this subject, they may cohero in the same tion, and the responsibilities that belong to the chief officer, still the message sent to that officer is an execumagistrate, and involving the rights of the citizens tive message performing an executive office, and to be of his jurisdiction. This cannot be; it matters not responded to in executive function alone. It appears what you call it, whether a ministerial duty or a quasi to me, I repeat, that to desceud below the mere ascer. judicial function, the name under which it is to be tainment of whether the crime is substantially charged, recognized is absolutely immaterial to the enlighten- and enter into the discussion of its detail, in pleading, ment of duty, whether ministerial or quasi judicial, or in fact, is invading the jurisdiction where the crimo within the limitations of the exercise of executive dis- is alleged to have been perpetrated, invading the juriscretion, surrounded by the restraints of the constitu- diction of judicial inquiry. tional provisions and the law; mind is to be exercised, I regret that the able jurists who have expended reason is to be brought into employment in the dis- judgment upon the subject, and for whom I have the charge of duty, and you cannot escapo from it whether utmost regard, both the dead and the living, had not you will or not; and the term ministerial, in this sense, brought their minds to the work of this discriminameans to investigate as far as an intelligent discharge tion. These cases have been treated without tborough of the duty requires, to tbe extent of what is presented discussion upon this point, probably because the quesby the record at least.

tion was not presented as incisively as it is here. If it is true that the executive may not exercise Now, this being the case, what further may the exearbitrary will, with discretion accountable only to the cutive do? He can go no further in the indictment sentiments, or prepossessions, or prejudices, or judg- than to ascertain that a crime is substantially charged. ment (the higher quality of the executive), and if he I think it is substantially charged in this case - in is not, on the other hand, reduced to fingers simply, an executive view of the subject, I think it is. I think an instrumentality in the hand of the executive of it is well certified. The requisition is in the ordinary the demanding jurisdiction, what is he to do? He is form, and attested properly, by the seal of the State to do within the limitations of the subject, just what and the seal of the court in which the indictment was the exercise of a rational power compels him to do, found. and to appeal to the Constitution and the law to find I see in this indictment matter, which if I were out what that is. Then, what does the Constitution charged with administration under the law, I would and the law say upon the subject, for the ono is a inspect very closely; but not being charged with that repetition of the other? The Coustitution provides in duty, it is sufficient for me to know that the crime is substance, that where treason or felony or any other substantially charged. It is certified here that the decrime is committed within a State, the executive of fendant is a refugee from justice. That is the only that State may make requisition upon the executive information I have on the subject. of the State, or jurisdiction to which the party has I should not hesitate when the case was made, and fled, to recover him and make him answerable to the perhaps it is well enough for me to declare it now, as a law where he has offended.

rule of my action in that regard, what I have done How is the executive to know whether a party is heretofore, and what I shall do again, unless I am betcharged with a crime? He cannot learn it by looking ter enlightened than I have been, I must know that at the great seal of the State. The law-makers kuew the rendition is to be properly made. I will not in that. Congress understood that thoroughly well. He trust it to the hands of improper agents, knowingly. was under no obligation to respond to a capricious or This agent appears to be a gentleman, having taken sinister demand. The Constitution does not contem- on the type of the civilization of the age, and I am not plate that.

to presume that he is a brute, The legislative indication is unmistakable. He is to The requisition comes from the mildest of the old be informed by the indictment or the affidavit which thirteen States, historically distinguished up to the is to be part and parcel of the record, and transmitted rebellion, as conservative, mild, deliberate and frater. under due authentication to the jurisdiction of which nal in its administration. Among all the old thirteen, the party is demanded. It would be an idle provision the North State sustains this reputation, par excellence. of the law to make the indictment a profert to the I am not to presume that a State is going to lend its executive for rendition, if he is not to look into it. It seal to outrage. That it cannot do. That would break was provided that it should be sent, because it was up the fraternity of States. known by the law-makers that the jurisdiction to I am aware that in the dark places of the Republic which it would be sent would have eyes and brains. men have been manacled and slaughtered by a misThat is the reason why it was put there. I have no guided, reckless mob, but these cases are exceptional. embarrassment over the question as to my duty to in- We are not to presume that a man is to be taken and quire whether the party is indicted, and whether for a sacrificed under the forms of law; and I, not being crime. That is not a matter of embarrassment at all perunitted to presume it, shall take it for granted he in my judgment. The question is, when advised of

will be kindly transferred, if trausferred under this the crime, how far you may go into its details in pro

requisition, to his place of trial, aud fairly treated after

he is there. nouncing whether a crime is charged or uot. Does it The defendant will be ordered into the custody of predicate in the executive the right to inspect the the agent of North Carolina.

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