proper evidence) in order the more effectually to accomplish the intent of the Government by preventing the escape of the criminal. On this principle we arrest offenders who have fled from one of the United States to another, even before demand has been made by the Executive of the State from which they fled.But what right is there to arrest in cases where the Government has declared that it will not deliver up? For what purpose is such an arrest? Can any judgment be given, by which the Executive can be compelled to surrender a fugitive? Most certainly not. If the President of the United States should cause a person to be imprisoned, for the purpose of delivering him to a foreign power, the Judges might issue a Habeas Corpus, and inquire into the legality of the proceeding, but they have no authority whatever to make such delivery themselves, or to command the Executive to make it. If these principles be just, it follows, that under existing circumstances, no Magistrate in Pennsylvania has a right to cause a person to be arrested in order to afford an opportunity to the President of the United States to deliver him to a foreign Government. But what if the Executive should hereafter be of opinion, in the case of some enormous offender, that it had a right, and was bound in duty to surrender him, and should make application to a Magistrate for a warrant of arrest? That would be a case quite different from the one before me, and I should think it imprudent at the present moment to give an opinion on it. Every nation has an undoubted right to surrender fugitives from other States. No man has a right to say, 'I will force myself into your territory, and you shall protect me.' In the case supposed, the question would be whether, under the existing constitution and laws, the President has a right to act for the nation, or whether he must wait until Congress think proper to legislate on the subject. the subject. The opinion of the Executive hitherto has been, that it has no power to act, and should it ever depart from that opinion, it will be for the Judges to decide on the case as it shall then stand. Neither do I give any opinion whether the Executive of the State of Pennsylvania has power to cause a fugitive criminal to be arrested for the purpose of delivering him up. But confining myself to the case before me, in which the arrest was made at the request of a private person, I am of opinion that there is no law to support it, and therefore the prisoner is entitled to his discharge." Taking then the opinion of Judge Tilghman on the principle here stated, and supposing that there existed a law in the United States, authorizing the President to act for the nation, as the prerogative of the King of Great Britain authorizes him to act in this behalf, there can be no doubt, but that in the one country as well as in the other, what the Executive legally directed to be done in regard of delivering up a fugitive would be confirmed by the judiciary. The objection that the offence charged against the prisoner, is not of that enormity as either to require, or permit, that the Execu tive should interfere to deliver him up, can have no weight. It would be difficult to establish a rule, where none has been settled, to enable us to distinguish the shades of enormity of different offences, their evil tendency, or pernicious effects, so as to limit the power of the prerogative as applicable only to such crimes as are productive of a certain quantum of evil in a state. The certain and positive rule laid down by all writers on international law, and the decisions had thereon, as above referred to, agree to say, that where a crime has been committed, the criminal may be surrendered to the offended country. There is certainly great difference of opinion among these writers as to what kind of crime this ought to apply; some holding it to extend only to high treason, robbery, and murder, while others apply it to minor offences, and even to civil damage; but where the general right is acknowledged, it must be left to neighbouring nations to determine the necessity of enforcing it according as good policy and sound discretion shall require. 3. It is, however, further objected, that allowing the Sovereign may have the power to deliver up a criminal to another state, yet that such power cannot be exercised by the Governor of this Province, who as the servant of the Crown cannot be considered as vested with the exercise of such high prerogative-or at furthest, it is necessary to show that by his commission he is vested with this authority. It would certainly be considered rather extraordinary that this, or any other prerogative of the Crown, necessary to be extended to every part of its dominions, and none more than in this province, should require either the personal presence of the sovereign, or his express mandate in every case of the exercise of his right. This would render it nearly impracticable, and certainly most burthensome to the subject when seeking to derive a benefit therefrom. But the prerogatives of the Crown do not rest on this limited principle, they are equally in vigor in all its possessions, and may at all times be exercised when necessary for the general welfare. The principle as laid down by eminent crown lawyers and explained by Chitty, (Chitty on Prerog. 32, 3, 1 Chalm. Op. 282, 3,) is, that the King's Prerogative in the Colonies, unless where it is abridged by grants, &c. made to the inhabitants, is that power over the subjects considered either separately or collectively, which by the common law of England, abstracted from acts of Parliament, and grants of liberties, &c. from the Crown to the subject, the King could rightfully exercise in England; that is, that the common law of England, with respect to the Royal Prerogative, is the common law of the Colonies. As, therefore, the prerogative rights in Canada are the same by law as in England, how are they to be exercised but by his majesty's representative in the coof colonies, lony--governors (Chilly on Prerog. p. 34,) although but the servants and representatives of the king, yet are in general invested with royal authority, and exercise many kingly functions. It is true, they cannot declare war, nor make treaties, nor 39 do many other acts of royal authority, which involve the interests of the whole realm, but what regards the security, the interest, or the honour of the province over which he presides, every governor of a colony, as the king's representative, must hold and be authorised to exercise all royal prerogative incident to that situation, as a thing requisite for the maintenance of the public welfare, unless it has been particularly excepted and reserved by his commission. The governor is answerable to the king for this exercise of the prerogative, and for the right discharge of his duty; and if, in the case before us, the party be aggrieved, the question must be settled according to the principles of international law, between the sovereign of that country to which the prisoner belongs, and the king's majesty, but not by his courts of justice. 4. It has also been objected that no demand appears to have been made by the American Government, or by any of the American States, for the surrender of the prisoner. But it is not for the court to inquire into this. The nature of the demand, and the sufficiency of it, must be best known to the executive to which it is made, and which alone is competent to determine, how far the royal prerogative ought to be exercised. What we have to determine is, whether there was legal ground for the arrest and surrender of the prisoner, and we hold there was. By the warrant of his excellency the governor in chief, to the sheriff, the latter is authorised to convey and deliver up the prisoner to such person or persons as according to the laws of the said state of Vermont, may be lawfully authorised to receive him, that is, the executive authority of that state, and we must presume, it was the same authority which demanded him. This is not, however, a question for our consideration." But the prisoner comes before us in a very different character from that of a subject to whom protection is due, as of right, he is an alien, to whom protection is not due, if the king sees fit to withhold it. The observation of Judge Tilghman may well be apapplied to him-" That he cannot force himself into the king's territories, and say, you shall protect me." It is held, (Chitty on Prerog. p. 49, 1, Bl. Com. 259, 260.) that alien friends may lawfully come into the country without any license or protection from the crown, though it seems that the crown, even at common law, and by the law of nations, possesses a right to order them out of the country, or prevent them from coming into it, whenever his majesty thinks fit-and the reason given is (Ch. Crml. law, 1 vol. 131, and 143, Note [a]) that it is inseparable from the governing power in any country, that it should be able to take precautions against foreigners residing in such country, and particularly in a country where foreigners are only amenable to the ordinary laws. The prisoner came into this province under suspicious circumstances, charged with a felony-as an alien his conduct did not merit protection, unless he had come with a fairer character-and he ought not to be surprised, nor complain that his majesty's government should direct him to be taken back to that country from which he came. Upon the several grounds alleg ed therefore, the Court have no hesitation in saying, that the prisoner cannot be liberated from the restraint under which he is held, but that he must be remitted to the custody of the proper officer for the execution of the warrant issued against him in the name of his majesty. CONSPIRACY AGAINST WILLIAM MORGAN. onment. Counsel for the People: Messrs. Whiting, (district attorney) Wilson, Dickson, Talbot and Benjamin. For defendants, Messrs. Marvin, Sibley, Penfield, Adams, Hubble and Barnard. At the Ontario Sessions, held sault and battery and false imprisin this town last week, came on before the Hon. Nath. W. Howell, first judge, and judges Price, Atwater, Brooks and Loomis, the trial of Hayward, Howard, Seymour, Roberts and Ganson, and the following jurors were sworn: Ira Case, of Phelps: George Brundage, Hopewell; Allen Brown, Bristol; Isaac T. Holmes, Manchester; John Nicholson, Phelps; Josiah Moffett, do.; John Woodhull, do. ; Adonijah Skinner, jr. Hopewell; Gideon Hurd, Gorham; Jeremiah Like, Manchester; Anson Howell, Victor; Nathan K. Pound, Farmington. The indictment contained four counts, viz. First count for a conspiracy to take William Morgan from the jail of Ontario county, to kidnap and remove him to foreign parts without the jurisdiction of this state, and to secrete and confine him there, and that they actually carried the conspiracy into effect. Second count, same as first, only charging the conspiracy to remove him to parts unknown. Third count-for kidnapping and forcibly carrying Wm. Morgan from the jail of Ontario county, to foreign parts, to wit, to Canada. Fourth count for as Mr. Whiting then addressed the jury in substance as follows:Nearly an entire year has passed away, since the abduction of William Morgan, and yet we have no knowledge of his fate. If it was proper to bring the perpetrators of that crime before courts of justice, to answer for the breach of the laws, and to receive punishment for that great and unparalleled violation of the liberty of the citizen; it is now more proper than ever-for time has confirmed our tears, and left the community fully justified in the belief that their worst apprehensions for Morgan's fate, have been well founded. It is therefore just and proper that these prosecutions should be persisted in, till the laws are vindicated, and the guilty brought to punishment. There is one advantage, however, which we can and do derive from lapse of time, in relation to our enquiries. The excitement which follows the commission of great offences, has in some degree subsided; and though our views of the enormity of the transaction are the same, yet now, when passion is silenced, we can deliberate upon this subject with calm and sober judgment; and in whatever we may do, we proceed with that dispassionate reflection, which should always mark the conduct of men deliberating upon great and serious objects, and the right decision of which, concerns the best interests of public liberty, and the private security of the citizen. The crime with the commission of which the defendants stand charged, is that they conspired together to secure and falsely imprison William Morgan, that in pursuance of such conspiracy they seized him by force, and carried him against his will, and without any legal warrant or justifiable cause, to parts and places without the territory and jurisdiction of the state of New-York, and in one count to parts and places unknown. They are also charged with having assaulted him, seized him, falsely imprisoned, secreted and detained him, from the day of his caption to the time of finding the indictment.These charges constitute the ofences committed by the defendants and others, against the laws of this state, in the forcible and violent abduction and detention of this man--as the law existed at the time of committing the offence. In order to prove a conspiracy, it is not necessary to establish the fact that a conspiracy was actually formed, and a precise agreement entered into the conspiracy and confederacy among men to effect an unlawful purpose, is derived and inferred from their acts and conduct--and hence if it be established that two or more men are committing acts which tend to the perpetration of a crime, or to the injury of an individual, the law infers that they act in pursuance of an agreement previously formed; and there is good reason for this rule; for if the prosecutor were held to prove a positive agreement among conspirators, justice would in almost every instance fail. Men do not call witnesses to their criminal intents and conduct-offences are designed and generally committed in secret, and in such manner as to elude observation and detection. The rule, therefore, in this case, is one of necessity and of salutary effect; and by it, your view of the offence charged on the defendants will be governed. The facts which gave rise to the conspiracy which, I am authorised to say, existed among the defendants and others, are, briefly-That this William Morgan was compiling a book professing to reveal the secrets of masonry— which book was printing at Batavia, by David C. Miller. The means of suppressing or preventing the publication of that book, was a subject of deliberation among masons in various parts of the country-and we expect to be able to show that it was determined that the only effectual mode of preventing that publication, was the removal of the man; or, having the power over him, to prevent his agency in the work. they should have obtained possession of the papers then prepared by him, he could have written others so that without the power If |