his own country so long as he pleases, and is not to be driven from it, unless by the sentence of the law prescribing exporta couraging and hazardous circumstances, from undertaking to reclaim his fugitive slaves. The spirit of these provisions appears to be rather repugnant to the principle of compromise and mutual and liberal concession, which dictated the section in question, and indeed pervaded every part of the constitution of the United States. With respect to fugitives from justice from one state to another, charged with "treason, felony, or other crime," the constitution of the United States (art. 4, sec. 2) provides that they shall, on demand of the executive authority of the state from which they fled, be delivered up, to be removed to the state having jurisdiction of the crime. The act of congress of 12th Feb., 1793, ch. 7, sec. 1, has made provision for the case, and declared that the demand shall be accompanied with a copy of the indictment found, or an affidavit made before a magistrate, charging the person with having committed "treason, felony, or other crime," and certified by the governor or chief magistrate to be authentic; and in that case it is declared to be the duty of the executive magistrate of the state to which the person has fled, to cause the person to be arrested and secured, and notice thereof given, and the person then to be surrendered to the executive authority making the demand, or its agent. I am not aware that there has been any judicial opinion on this provision; and as it stands, I should apprehend that on the demand being made, and the documents exhibited, no discretion remained with the executive of the state to which the fugitive had fled, and that it was his duty to cause the fugitive to be arrested and surrendered. But if the executive, on whom the requisition is made, should think proper to exercise his discretion, and refuse to cause the fugitive to be arrested and surrendered, (as has been done in one or more instances,) I do not know of any power under the authority of the United States by which he could be coerced to perform the duty. Perhaps the act of congress may be considered as prescribing a duty, the performance of which cannot be enforced. The provision in the constitution of the United States is not, however, to be regarded as a null or void provision, or resting on the mere will and pleasure of the state authorities. It is a substantive and essential grant of power by the people of the United States to the government of the United States, and it partakes of a judicial character, and is fitly and constitutionally of judicial cognizance. The judicial power of the United States extends to all cases in law and equity arising under the constitution, and the courts and judges of the United States within the state to which the fugitive has fled, are the fittest tribunals to be clothed with the exercise of this power, so that the claimant might, on due application, with the requisite proof, cause the fugitive to be arrested and removed, or surrendered by the marshal of the district, under regular judicial process, as by habeas corpus. To such a course of proceeding and to such a source of power, I should rather apprehend the act of congress ought to have applied, and given facility and direction. Such a course of proceeding would be efficient and more safe for the fugitive, and more consistent with the orderly and customary administration of justice. It concerns the common interest and intercourse among the several states, and is a branch of international jurisprudence.1 1 In Ex parte Smith, (the Mormon prophet,) before the Circuit Court of U. S. for Ohio, Mr. Justice McLean, in an elaborate decision, lays down the following principles: 1. The functions performed by the governors on the arrest of fugitives from justice are under the laws of the United States, and not of the particular state. *33 tion or banishment in the given case; or unless required abroad while in the military or naval service. Exportation for crimes rests entirely, in England, upon statute, for it was a punishment unknown to the common law. A statute under Elizabeth first inflicted banishment for offences. *Some of our American constitutions (a) have declared, that no person shall be liable to be transported out of the state for any offence committed within it. It would not be consistent with the spirit of that provision to prescribe banishment as a part of the punishment, whatever foreign place or asylum might be deemed suitable for the reception of convicts. In most of the states, no such constitutional restriction is imposed upon the discretion of the legislature; and in New York the governor is authorized to pardon, upon such conditions as he may think proper. (b) Convicts have sometimes been pardoned under the condition of leaving the state in a given time, and not returning. This was equivalent, in its effect and operation, to a judicial sentence of exportation or banishment. 3. Writ of ne exeat. In England, the king, by the prerogative writ of ne exeat, may prohibit a subject from going abroad without license. But this prerogative is said to have been unknown to the common law, which, in the freedom of its spirit, allowed every man to depart the realm at his pleasure. The (a) Constitutions of Vermont, Ohio, Illinois, and Mississippi. 2. The U. S. Courts have jurisdiction on habeas corpus, after the fugitive has been arrested on requisition, and may look to the sufficiency of the affidavit. 8. The crime must be charged to have been committed: averments of mere belief are insufficient. 4. The fugitive must have been in the state where the crime was committed, and have fled therefrom; and no one can be delivered to be tried in another state, if he were a mere accessory, and in a different state from that in which the crime was committed. Held, in In re Kaine, 14 How. U. S. 103, that a justice cannot arrest a fugitive until a demand is regularly made; and when thus made, the demand is conclusive; and the court on habeas corpus will not inquire into the offence charged. State v. Buzine, 4 Harrington R. 572. State v. Schlemn, 4 Harrington, 577. It is held In re Fetter, 3 Zabr. 311, that a fugitive from any state in the Union, may be arrested and detained in another, though no requisition have then been made by the state where the offence was committed. The act contemplates only the case of a fugitive who is at large. In the matter of Troutman, 4 Zabr. 634. first invasion of this privilege was by the constitutions of Clarendon, in the reign of Henry II., (a) and they were understood to apply exclusively to the clergy, and prohibited them from leaving the kingdom without the king's license. In the Magna Charta of King John, every one was allowed to depart the kingdom, and return at his pleasure, except in time of war, and saving their faith due to the king. (b) But this provision was omitted in the charter of Henry III., and in the reign of Edward I. it began to be considered necessary to have the king's license to go abroad; and it became at last to be the settled doctrine, that no subject possessed the right of quitting the kingdom without the king's license; and prerogative * 34 * writs, which were in substance the same as the ne exeat became in use, requiring security of persons meditating a departure, that they should not leave the realm without the king's license. (c) By the statute of 13 Eliz. ch. 3, a subject departing the realm without license under the great seal, forfeited his personal estate and the profits of his land. The pre. rogative of the crown, on this point, seems to be conceded; but until the king's proclamation, or a writ of ne exeat, has actually issued, it is understood that any Englishman may go beyond sea. This writ of ne exeat has, in modern times, been applied as a civil remedy in chancery, to prevent debtors escaping from their creditors. It amounts, in ordinary civil cases, to nothing more than process to hold to bail, or compel a party to give security to abide the decree. (d) In this view we have at present no concern with this writ; and in this country, the writ of ne exeat (a) Beame on the Writ of the Ne Exeat, p. 2. (b) Blacks. ed. of Magna Charta of King John, art. 42. (c) Beame's Ne Exeat, ch. 1. (d) In Indiana and Illinois this process may be granted on bail or petition, and issued on claims, whether due or not due, and whether they be legal or equitable, where one or more joint debtors or co-sureties is about to remove out of the state, with his effects, before the time of payment or conveyance. Revised Laws of Illinois, edit. 1833, and of Indiana, 1838. So the writ of ne exeat may be granted in Georgia, in certain cases, though the debt be not due. Prince's Dig. 2d edit. p. 440. In New York there must be a debt due and payable at the time, and it must be an equitable debt, which can be enforced against the person of the defendant. Gleason v. Bisby, 1 Clarke, 551. is not in use, except in chancery, for civil purposes between party and party. No citizen can be sent abroad, or, under the existing law of the land, prevented from going abroad, except in those cases in which he may be detained by civil process, or upon a criminal charge. The constitutions of several of the United States have declared, that all people have a natural right to emigrate from the state, and have prohibited the interruption of that right. (a) We shall, in the course of the next lecture, examine particularly into the foundation of this right of emigration, when carried to the extent of a perpetual renunciation of one's allegiance to the country of his birth. 4. The free exercise and enjoyment of religious profession and worship may be considered as one of the absolute rights of individuals, recognized in our American constitutions, and secured to them by law. Civil and religious liberty *35 generally go hand in hand, and the suppression of either of them, for any length of time, will terminate the existence of the other. It is ordained by the constitution of the United States, (b) that congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, and the same principle appears in all the state constitutions. The principle is generally announced in them without any kind of qualification or limitation annexed, and with the exclusion of every species of religious test. (c) The charter of Rhode Island, of 1663, (a) Constitutions of Vermont, Pennsylvania, Kentucky, Indiana, Mississippi, and Louisiana. (b) Amendments, art. 1. (c) I say generally, for in the constitutions of New Hampshire, Massachusetts, New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, religious tests, to a certain extent, seem to have been retained. By the constitution of North Carolina of 1776, no person denying the divine authority of the Old or New Testament, or the truth of the Protestant religion, could hold a civil office. By the amended constitution of 1835, the word Protestant was omitted, and the word Christian substituted. In Massachusetts, by an order of the general court, in 1631, no persons were to be admitted to the freedom of the commonwealth but such as were members of some of the churches within the same. Massachusetts Ancient Charters and Laws, Boston, 1814, p. 117. But this law was declared to be repealed in 1665. Id. See, also, in Connecticut, or rather in that part of it which, until 1665, constituted the separate New Haven Colony, the early settlers established, and enforced by law, a uniformity established a freedom of religious opinion and worship with extraordinary liberality for that early period of New England history. It declared, that "no persons within the colony, at any time thereafter, should be in any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, who do not actually disturb the civil peace of the colony." The principles and character of Roger Williams, the earliest settler and actual founder of the state of Rhode Island, in 1636, had prepared the way for such an unexampled declaration of the rights and sanctity of conscience. (a) The legislature of Maryland had already, in 1649, declared by law, that no persons professing to believe in Jesus Christ, should be molested in respect of their religion, or in the free exercise thereof, or be compelled to the belief or exercise of any other religion, against their consent. (b) Thus, to use the words of a of religious doctrine and worship, and made it requisite that every person holding a civil office should be a church member. Trumbull's Hist. of Connecticut, vol. i. 100. App. 535-7. The Blue Laws of New Haven Colony, commonly called the Blue Laws of Connecticut; by an Antiquarian; Hartford, Conn., 1838, p. 122, art. 16, pp. 127, 128, art. 23. In the former editions of this work I inadvertently applied the blue laws to Connecticut at large. This was incorrect; for until 1665 New Haven was a distinct colony from Connecticut; and to the New Haven Colony the blue laws eo nomine, as digested by Governor Eaton, were to be confined. The severity of such a religious establishment was afterwards relaxed, and by the constitution of Connecticut, 1818, perfect freedom of religious profession and worship, without discrimination, was ordained. And in the ordinance of congress of July 13th, 1787, for the government of the territory of the United States northwest of the river Ohio, it was declared to be an article of compact between the original states and the people and states in the said territory—a fundamental principle, to remain forever unalterable-that no person, demeaning himself in a peaceable and orderly manner, should ever be molested on account of his mode of worship or religious sentiments. (a) The covenant into which the first settlers of Providence, in Rhode Island, mutually entered, and which is supposed to have been drawn by Roger Williams, declared, "that they promised to be subject to all such orders or agreements as should be made for public good of the body, in an orderly way, by the major assent of the present inhabitants, masters of families, incorporated together into a town fellowship, and such others whom they should admit into them, ONLY IN CIVIL THINGS." (Address of William G. Goddard, Esq., Newport, 1843.) In this original, but brief and admirable document, we see deeply laid the seminal principles of freedom of conscience, and of a provident and guarded democracy. (b) Bacon's Laws, 1649, ch. 1. See, also, Chalmers's Political Annals, p. 219. This legislative act of Maryland, in favor of religious toleration, was prior in time to any in America, if not in any country, but it was still limited to Trinitarian Christians. Brancroft, in his History, vol. i. p. 276, gives a true copy of the law, as taken |