Newspaper of Burlington Free Press, April 19, 1839, Page 1

Newspaper of Burlington Free Press dated April 19, 1839 Page 1
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NOT THE GLOUY OFCiBSAK It U T T II U W K L F A HE o F n O M U . BY H. B. STACY- ARBUMliNT OF MR. ADAMS IN THE CASK OF HOLMES. The Governor General of Canada, having matin n demand upon the President of the United Slatts, lor mo oouy 01 ucorj-o Holmes, nccucd of Hie crime of murder in I he district of Quebec, and the President hnving declined to net through uu itlledged want of power, h:ia preferred n formal request lo the Governor of Vcriuoni, desiring that nrording lo thocomltv Mint prevail among civilized nations, tho said Holmes may lio delivered lo (lie Canadian niilhorilies for trial according to tho laws of tho province. The inquiry is important, not nnfy as it may ef fect the accused, hut on account of the principles Involved, nnd the hearing it may have upon the character of the nation, and ihe continuance ol our friendly relations. Thai the public authorities of Vermont nro dis posed to lend all needful aid in llie punishment of lictnous olleuces must not ha n subject orueb.ite, and if on consideration the ictpto't now niado shall not 1)0 granted, it will I c un udniis.-dnii that thuic is no nnwerin iho government of llie United Suites, nor in that of the suites, competent to the disrhargc of 'what has hilherto been considered ono of ihe clear est of national (Junes. I his would be a a subject of -deep inoiiuicaiion, unci ueiorc we allow a reproach of such imbccilily to be rightfully fastened upon us, tve ought lo search long and earnestly and bo 'clenrlyMtisfiedlli.it there is soma signal delect in the organization ofour government. The subject may in few words be cleared of some minor considerations. There can be no objection lo the foim of tho lequest. It is mado with that neutneM and propriety, which usually chaincterizcs the public acis of I lie Canadian authorities. The evidence of guili is found in an indictment preferred liy tins Grand Jury of the district wheie ihe murder whs committed. It is for an offence which all na tions punish as ;i crime. Minder is an offence ngainst the human race, prohibited by the voice of the Almighty. "Thou, shall not kill," is (ho pro hibition given in the thunders of Sinai, nnd no leg islation of man can limit the command or impair its force. Tho proceeding is national in ils character. The request is prefeiicd by tho Governor of a piovinec in llie name of the people of that piovinco lo the Governor of an independent slate. The right of preferring sucn request nnd tin: duly of compliance re question testing on (he rules and principles of international l.uv. Thei e arc three general npccts in which the sub ject inav be viewed, each cleaily indicating the tel. ulivc rights and duties existing 'between the prov ince of Canada and the stale of Vermont. The provisions of the laws of nations and their binding force by llieir own proper vigor. Their binding loico as part of the common law which has been adopted by statute in Vermont. The rights and duties created by the uninter rupted iciige that has prevailed between the go vernments. The provisions of the laws of nations are clear and explicit, subject to no doubt or contradiction among ihe writers on public law. Vaitel declines the doctrine in strong and unenttivoc.il lernm As. sastins, incendiaries, and robbers are seized tvery where at the desire of the sovereign in the place where the crime was committed, and delivered up to justice. This is done on the prin ciple lint mi injury to a citizen ia an offence against the state, and ili.it a refusal to surrender a fugitive would make ihe government a parly 10 the offence, and that a repetition of such acts would be good cause of war. This doctrine has been repeatedly recognized and enforced by the highest judicial authority in Kng. land, us may be teen by referring to the rases in the first of Strange, first of Vezey Sen. nnd fourth of Taunton. It is a Iso an established doctrine in France, as we learn by a late ticatisc on public law by Mr. Turiot. The doctrine loses nothing of its force nn.I pow er of illustialion by the decisions of eminent Jurists in America. Chancellor Kent, in ihe matter of Warhburne Un 4 J. C. It.) adopted the rule in its broadest terms, and has again maintained it in the first volume of his coinineuiat ies. It is almost su. perfltiou to mid that this is :i work of rate excel lence and (if high authority in the United Slates. Ch. J. Reid, of the U. K. II. in Canada, has maintained the same doctrine in the matter of Pish. cr, in an opinion which does him great credit ns a jurist. Judge Story has maintained a like doctrine in Ins commentaries un the constitution, nnd in his conflict of law ; but it may be thought lie has raised a doubt by his leference lo two Amer ican authorities, one in Massachusetts and the other in Peiiiis)lv.iuiu. Tho question in 17 Massachusetts Reports, was whether a man who had been convic ted of felony in New Yotk, could be admitted to testify as u witness in Alassachu'etis, and it was decided that he might. The peculiar circumslanres of Ihat case wcro well calculated to induce i lie court to admit tho testimony if possible, but the decision has no application in the point now under discussion. The case in Pennsylvania (10 Serg. & Rawlc) is if possible more foreign, The point there ruled was, that a man licensed of murder in Ireland, could not be sent out of I'ennsjlvauia on the com plaint of a private individual. This decision com mends itself to the consideration of every fair law. yer j but iisstuedly it is of no authnrilv for refusing n demand by one executive upon nnothcr j and iho remark of Ch. J lieid hasgieai force that, had llie case warranted it, there is reason lo believe that Judge Tighlman would have decided as he did in llie rase of Fisher. These are llio only cases that can be considered ns even rnising n doubt ; nnd had ihey a more di rect application, ihev would make but little against n doctrine, so long established and so generally ad mitted ; but from their remote healing, it is to be regrencd lhat Judge Story should have given ihem bo Hindi prominence by citing them as authorities. In England, the laws of nations uie considered ns part of tho common law, and they nro adopted in their courts, ami acted on as such. In ihe case of Triquet against IJadi, l.otd Mansfield inserted that the law of nations, in its full extent, was part of the law of England, and maintained the proposition by inlcirtng to the opinions of Holt, Talbot, and Ilardwicko. In the case oflleathfield against Chilton, ho again asserted that the law of nations is part of the common law of England (3 & ! Ilur. Kep.) These decisions arc cited with npprobatinn by Ch. Kent, in the matter ol Wash burne by Ch. J. Keid, in Fisher's rase, and by tho Supremo Court ol the United Stales. An impor tant ease has leccntly been decided by that court, illustrating the obligatory character of tho laws of nations on the elaies of the Union. It was beauti fully said by Mr. Webster in that case, in reference to the law of nations, the air of every judicature full of it-it is purl of the universal law, Tho common law is adopted by Minute in Ver mont, and its influence is universal in tho state; It has become ns familiar as household words, and its loss enuldnot be supplied without changing thu whole linbiu ofof the people. Scarcely a proceed, ing can be had in courts of justice, without resort ing to its definitions or rules We indict ami pun ish fur offences ngainst it, as in the case of nuisance, nouses of ill fame, and many others that might be named. Every intelligent lawyer, will tidmil its pervading influence and beneficial cfiects ; anil if, na 1 liaveaiiempted lo show, ilio law of nations is part of the common law, it stands admited in llio first chapter o our malum, us part of the necessary law of the slate of Vetniont. Tho practice of surrendering fugitive felons has prevailed in ihe general mid state governments (torn their commencement to tho present ijmo without interruption, until the refusal of the President in this case. Jonu. Bobbins, alias Nnsh, was given up on tho request of tho British authorities in 1799, during Ihe ndminislrntiou of tho elder Adams. Mr. Adams was ptobablv the nblcst lavvvcr in Amcric tit that time, nnd his decision is emit led to great considcialion. This iler.ision was nssailed In Con gress fur its supposed interference with the judicia ry! nml the celelir.ilcil aiguiucnl of Marshall, after wards Ch. Justice, was chiefly intended lo show that it was un executive power. From soino gen. crnl rcmaiks of his, some have drawn the inference that he intruded to assert that this executive nnvver vyas vested exclusively in tlio President of the U Stales: but this is a violent and unauthorised in fcrence. Me was disenssine the ritiesiion whether uie ounur was in c or exeru lie. .mil on nil point his nreutnciit is conclusive i but tlm suliieet did not lead him to examine tho power of the stales, in iiuiiiiii is p.i iu on niai poini. About the same time. Tlehenor. then Governor of Vcimonl, siiricndcrcd a felon by the name of n..!..- i i.:..i.-! ii "am iiii ma urciRicii was lormaiiy nppioveil uy thu Legislature of Vermont. This may bo consid er d ns decisive nnihorily that the power was claimed as bclonzini! to the slate, ns well us lo the general government, to be oxevcieed by either according to circumstances and n sound discretion. Since dial time, few cases have occurred in the general government, but no eases ato known of u refusal. I'olari, who stole the jewels, was stirren dcied under a stipulation ns lo lite extent ol his punishment. This however was but a larceny, and if the stipulation was allowable, it arose fiom a supposed difference in the mode of punishment be tween tho two countries. The usage has been more common between the Canadas and the adjoin ing atntes of Vermont and N. York. In this slate many instances have occurred, nnd many felons surrendered nnd punished ; tho Frenchman who shot a boy at Swanlon, nnd Fisher, are prominent ones. Gov. liutlcr ordered the surrender of a Tel on but he was not found. Tho demand has more frequently been mnili: by us: nnd it is believed lhat no instanrc has occurred of a refusal, where ihrre no instanrc lias occurred ol a rclusal, where llirre was a s.iluciont evidence of guilt; and the frank manner in which the Canadian authorities have met llie subject, should impress upon us the propri ely of rccipioc.ilins when occasion offeis. Having thus shown llie clear provisions of the laws of nations, their ndoption by us as p.irt of the common law, and the un intcri njitcil usage that has prevailed, can nny argument tie necessary lo enforce llie oliligatiuus they impose the lawsol nations are recognized, and I lie i r binding lorce admitted by nil natioi.s claiming to he civilized, whether chns ti.in, iiiahotncdan, or pagan. Their fotce is not limited to the stales of polished Europe; but on the shores of the llosphorus, and the banks of the Gan ges, is felt and admitted. Nay, Algieis will not wholly repudiate them : and can it be nicessnry lo inquire whether llie Americans admit them ! A denial ot our obligation would ho a voluntary exclusion of ourselves from llm social family of na tions. It would be n formal declaration of war against the world, anil nil civilized nations would be jus tided in making common cause ngainst us, and hunting ns as enemies. The laws of nations, in point of dignity, trans cend nil state enactments. Thev arc the ordinan ces of what may bo teiincd the supreme power of nations are intended to operate upon the race and have lor their object, the promotion of happi ncss every where. I hey arc nut limned to ihe narrow circle of stales or empiies, but embrace within their jurisdiction thc'bioad circuit ol the world. '1 here is something sublime in the thought that jIip civilized world is acting in concert, under the influence of a gcncial law, for the impiovcmcnt and Happiness ol the race. 1 line has been when men denied then' obligation, and the gloom of thick darkness ovcMiadovvcd them ; but a brighter d.iv litis arisen die daikuess is past, und the world is unco more coveted in light. From the nature ol men, as social being? intercourse vvitii each other is indisiicn sable, and is indeed one of the chief instru ments of their improvement and hannines?. This intercourse is as necessary to eintcs ns to individuals, and in order to be protluc tivc of all Ihe good of which it is caDablc. must be regulated by general rules; and hence the origin of the laws of nations. They have their foundation in the nature ot man, aro required for his protection and happiness, and cannot bo repealed nor lim ited without doing violence to his best interest. As individuals cntcritisr a com tnunity, arc bound by tho laws of that cnmmutuly, so slates on onterinjr tho com tnunity of nations are bound by their laws, which, by common consent have been adopted lor the regulation of that commu nity of nations. If wo claim to bo a component part of tnc civilized national latnily, wc thereby admit our obligation to obov its laws and ordinances. A decent self respect forbids that, any doubt should be entertained on that point. Wc claim lo bo n civilized nation, and while we demand the rights nnd immunities of the national code, we must be careful to obey i t s injunctions. Governments aro but assemblages of iiititviuuais. acting in concert lor thu coin mon good, and the laws of nature binding on men as individuals, are transferred to stales and binding on them. Laws of nations are to stales what tho obligations of common honesty are to individuals. Individuals are ready lo admit their obliga. tions in thoir intercourse with each other; and if there bo any difference in degree, they aro tnoro necessary to stales on account of the more terrible consequences resulting from their refusal. If any auolonv is necessary for Hum dwelling on a topic that should he held self evident, it must bo found in that clamorous fpiril lhat demands a reason for the time hallowed observances of nations. Usages founded in the highest antiquity, nro to bo abrognted by tho doubts of a reckless rncc ol self-styled reformers. Laws founded in the consent ol nations aro to bo sot aside at tho will of individuals. It is not too much to say that tho institutions of our country are endangered by n bold spirit of innnvation. Wo claim to bo n nation ruled by laws, and aro yet gravely debating tho question whether tho laws of nations'havo any binding force upon us. Whether wo owe any allcgianco to thoso laws which by common consent of nations, have been adopted as rules of action throughout the civilized world. As an American citizen, I rejnico that wo are free from reproach for violations of national law. I am awaro that souio, through a misguided zeal have overstepped established land marks, that in some sections a spirit has manifested itself, jmu. rious to national character, producing vio lence and crime, nnd jeopardizing tho ponce of tho nation, livery lover of his country that fuels tho importance of maintaining order and preserving peaco will strive to check this fnuntical spirit, and one of tho FRIDAY, most effectual means of lining it will be, ,,,...1.1. uiiucw u ii,..:ui.;ni;u io i laws of nations, furnished by llio surrender of llio tulnn now ilemnntlcd ol us. The Governor of I lio si ale linn now un nunnrlti nity of giving nn evidence of Ins devotion fo nnttutial law, that can never be oblitcrti ted It is sometimes said that t ho Btirrcntlor of felon is mnttcr of comity, and not inn! ter of right. This seems to be thu view entertained by Judge Story in Ii ia Conflict of Laws, nnd others renting nn hisntithoritv have adopted tho enino opinion. But I ilo not sec any importnnco in tho distinction If there is any difference, it is merely nominal, und cannot nfl'oct the result. It is rather a distinction without a difference like the imperfect und perfect obligations in ouncs. iui i can cxcmptiiy my meaning nest uy stating a case. The treaty of 1791 between Great Brilian and United States. contained astipulation for tho mutual sur- render of certain lelnns, but wo had no such 8lipulation with Prance. As between in nnd Great Britain the surrender was matter of right, but between us and France it was but a matter of comity. In tho one uuru, u was an uumiucu uuiy. in mc oilier, an implied one; but was it therefore, more binding in the one than tho other? It is said the breach of a treaty obligation would be more Jlngrnnt. I confess I do not see h in that light. Tho mao who lends his frietid a hundred dollars, confiding in his i,. , . , , ih, l,0"0r 10 ruPay ,l 13 as m,,ch entitled to his pay, as another who lends the same on his bond and mortgage; and which I ak, would an honorable man pay first? We were under as much obligation to France as lo England, and the laws of nations ns imperative in the one case, as in thn oilier. Franco confided in our honor. England c.xnctcd a pledge. Without, intending to cast, nny rcproacli tor tliu doubt implied in exacting the stipulation, I ought to add there were reasons which existed at lhat time- for tho stipulation, but when the reason ceased, the article was dropped. But it is a mistake to suppose that any new duly was created. The treaty was merely declaratory of tho law of nations, nnd was but in the nature of a record evidence of our admission of it. The right of the Governor of Canada to make tho request in this case seems not to have been questioned, and so far as I know, is admitted. As the right is not disputed, it may appear superfluous to examine the grounds of it, but I think it may be useful to ascertain the principles on which the right of making such request must rest, inasmuch as it may help us to establish the true grounds of tho duty of surrendering. I shall take it for grantod that no power lias the right to demand that does not admit tho duty of surrendering that the right and duty must bo reciprocal. Hence if Canada has ihe right lo demand. Ver mont has a stronger right, and if Canada may be required to surrender, by a far stronger reason Vermont is bound to do i ho same. Canada, as all know, is a province, rules by a delegated authority, and does not claim to bo considered as an independent slate. Their government is under tho control of another power, their public nets aro subject to supervision, and their whole organization liable to bo changed at the will of the imperial government. But Canada has a political organization, with power to enact laws for tho protection of all within its jurisdiction. The citizens have a right to demand the aid of the gov ernment to protect them in their persons and property, and tho government havinrr competent power to protect, aro bound to exorcise the power without reference to tho source whenco it is derived. The political standing of tho government be comes immaterial, and the question whether they rule by an original or by a delegated power ceases io uo ol any importance. Ii is tho possession of the power to protect lhat creates tho duty of protection, nnd hence the right of making the request does noi now irom tin: absolute independence of the government, but from tho fact of its organization. From this view it follows. thnt every organized community, having power lo enact laws for the protection ol" those within ils jurisdiction, has the right of demanding an oflondcr against those laws. This right is founded on a principle of protection. Whatever is necessary as a means of protection, is within the legiti mate powers of tho government. Tho punishment of offences is of that character, and the power of protection without full power to punish would bo but nn empty grant. Tho punishment of offences is tho price paid for individual security, and there can be no perfect protection without it. bvery citizen has a right to demand this protection. Nono aro fo high as to bo above its need, nono so low as to bo beneath its care. It is the lorv and llie excellence of freo governments, in which the English nnd the American may participate, that the most huinblo eitizon may domaud tho aid of tho whole organized powor for his protection. The strength or this power rests chiefly in tho right of tho government lo inflict punishment. But this punish ment is not in tho naluro of retributive justice. It is a high preventative power, operating by t ho teirnr of itH example and

giving protection to the feeble and llie in nocent by depriving depraved men of the power of mischief. Tho offender mny well deserve punishment, hut if punishment had nn higher object, tho proceeding would loso much of its dignity and moral forco. Tho spirit of retaliation is an evil spirit and desorvca tho most stern rebuko. 'Puking iho life oven ol tho guilty, in a revengeful temper, is but a second murder. Tho"pun ishment of ofiondors which thn government owes to thu innocent and tho fecblo is the means of their protection from violence. It is this only that can reconcile it to chns lion forbearance. From tho course of APRIL 39, J 839. ""'-"'"iTm- I reasoning have adopted u follows, tl!U no o imiia Ma ving i0 wo r to citnct In ws for t Ii regulation of the cnndimr nf ll .ifivnnc und having power to define and punish -i Hues, is cnargfibio with the duly or pro tection lo the citizens, nnd being necessary In Uiih protect inn, has the right lo demand tin; surrmtdnr nfilm r.,l Tho duty incumbent on the State of Vermont to make the surrcndci, results irom mo political standing and charade of the Stale, from thoir tlOWnrtnnnni. Imu for thegenoral protection of its people, nnd from tin limitations iinnosod bv tho con. Stlllltlon of tho United Slnlna. I ho political character and slnndin g of inc state, may bo stated in n few words : It Irt a free. Hnvnroirrn nml i,1 1. t -.w.;.., lllllUUIIUU'lll 1 ho people ncknowledi'Q nn sunn. nor; rule by no delegnlcd authority, hold iho charter of their lilinriimfrnm n,n cm, oi un power, exemplified under the broad seal of heaven. They have all tho powers iiiun any people can possess, establish their own constitution, enact laws and car ry them into execution, definn rrimoa .! punish oflendnrs.establish courts and admin ister justice, nnd in fine do nnv tlnnif nnd every thing necessary for tho protection of me citizens nnd the advancement of the common good. Tho limitations upon their legislative nowor are hv ifmir ntvn Mn,.i and by their voluntary agreement. But these limitations nrc no diminution of the political power of the people, but quite tho reverse. Both governments havitif their origin in the samo source, the people of state nave more political power since the formation of the general government, than each state had soperately before ; for the powers thus delegated arc not lost to Ihe people nnd there is a gain lo each state by the power acouired over llin nnnnln nf all Ihe other states, It mu9t be conceded that Vermont be fore its admission into the union, was free. sovereign, and independent, having all tho powers that any state, or people can have, and of course an unqualified right to de mand and surrender fugitives. The ques tion then is, whether by tho admission of Vermont into tho union, this right is taken away. I ho fairest mode of cxamin'm?? the ones. Hon is to consider the formation of tho constitutions of Vermont and of tho United Stales as contemporaneous acts. The pco iiu oi Vermont in conjunction with the people of the other states grant certain do fined powers to the general government, reserving all other powers to the states, and at thc6amo time the oeonle ol Vermont form and establish tho stato government. Iho United States government though possessing trunsccndenl powers, is still a limited government. Each crovcrnmcnt emanating from n common source, is inde pendent of the other. Neither is the one auxiliary to iho other, but so far as tho one i3 necessary to the other, there is a mani fest preponderance in favor of the slates. Expungo tho constitution of the U. Slates, and still tho states would remain in full vigor in the entire possession of absolute sovereignty, but strike out tho6tatcs and the general government falls. but Utero is no occasion for any contest for supremacy between the two trovern- mcnis, they nrc both free, sovereign and inuepcnueni, aro uotn governments ol the same people, constituted with different powers, but exercising them for the same purpose. Tho sovereignty of the national govern ment does not necessarily destroy the sov. ereignty of the stato nor abridge any of us powers, but each is loft in the lull and com plete enjoyment of all tho powers incident to Ihe sovereignty. Wc are members of two governments, and are free citizens of both, exercising tho powers of each ac cording to the lerms of the constitution adopted tor each. Tins distribution of powor between the two governments, does not imply any dependanee of one upon the other, but leaves them both independent. "Two sovereign states may be subject to tho same prince without any dependanee on each other, and each may retain nil its national rights free and sovereign. Several sovereign and independent stales may unite themselves together by n perpetual coined eracy without each in particular ceasing to bo a perfect stato. They will form torruih er a federal republic and the deliberations in commoii will oiler no violence to the sovereignly of each member, though thoy may in curtain respects put more constraint on tho exorcise of it in virtue of voluntary engagements. A person does not cease to be fretiund indepdnilent, when ho is obliged to fulfil the engagements into which ho has very willingly entered." Vattcl B. I. ch I, 39. It is said tho surrender of fugitive felons is an act of sovereignty nnd therefore per tains to the United States. If this bo grnnted. it by no means follows that the statu may not also exercise it, for the state also is sovoroign in Iho highest senso of llio woru. The denial of authority to tho slato must bo founded on the proposition that tho power is exclusively vested in tho gcnoral government. But this is not to bo admit ted upon doubtful reasons, nor tho power of tho slnlo denied by a constructive grant. The breath of implication should not bo allowed lo blow away u high pnwer of tho slnte so necessary ns a inouni of protection, and so indispcnsu'blp to iho porfect security of its inhabitants. Ah the powor of surrendering is not spe cifically granted in cither constitution, it remains with the pcoplo of tho stale as part of their original powers, unless it is a power incident to soino power exclusively vested in the general government. In Ihu grand division nf pnwers between lite two governments, our foreign relations are vet ed in tlu general government, while tho whole internal security and protection n vested in thu stntc. If it should be admit ted that llio right of ourrendenn cK.ent to our foreign roli!iiun, u (, Mot exclusively bo, for it is equally n power incident to the pnwer uf inlurnnl protection ami security and as such can only bo cxer. ciscd oy the stato. Congress, as all know, nro not charged with tho internal nflairi of sinio anu cannot legislato on the sub-J'-'ct, they cannot oven punish tho most "iRrniit murder, but this whole subject ii vesiuu rxciusivuly in tho state. Ilenco if -u Mirreniier , n necessary or proper u. s iniernai proiection nnd secu my, u is vested in tho state. Nr. imnlimi powers arc exclusive, nnd frnm it,..ir ,,, ,i. -urn do, nut may ho exercised concur timy ny ooui governments, as in the limner (11 uaillCS. I lio liberal view, and I think th n rnrrnnl one, is that Iho power is in limb n,,n,n incuts, to bo exorcised bv 1 1... nn ,t, other according to ihe bearing of tho ques Hon on iho powers and duties entrusted to each. Ilenco in that grout class of cn..a growing out ol our bordur difficulties and having a more immediate connexion with peaco or war. if a felonv in nnmmittnil il,n subject should bo referred to the gen eral government, and though a governor might bo authorizod to act. vot in tlm nvnr cisc of a sound discretion, he ought not to exercise tho power.but refer it to the Presi dent. So on tho other hand, in tho cae ofa simple murder, involving mainlv ihn question of internal protection, though the 'aiuui nave me power to act, ho ourrht fo refer it to the Governor, and tho reason in both ensci would be the same, that it more immediately concerned tho dooart- ment to which it was referred, and the offi cer entrusted with the execution supposed to have the tho best menus of iudn-'mrr wlmi sound discretion required. i no view thus taken has been rafher a general one, and has proceeded on Ihe ground that there was no limitation to tho powers of (ho general rrfivi.rnnn.nl and that all the powers incident to stiver. eignty were vested in the United States But this is not exactly the proper view, for as before remarked, the United States is a limited government, and to ascertain its powers they must be examined more in detail. Thero is nothinrr in tlm nrnlliliitnrt, clause that has a semblance of bearing, un less it be this no slate shall enter intn trenlij.alliince or confederation. But can it oo inferred from this lhat the state has nn power to correspond with others on sub jeets of their common interests! The slates aro continually corresponding with each other on tho most momentous subjects affecting even the constitution, and what limitation is ihereon their power of cor responding with foreign states on mailers that concern the internal affairs of tho slate. It is but n few years since that Ihe Governor openod a correspondence with the Governor of Canada on some subject relating to Mcmphrcmagog. and more re cently relative lo a pretended rise in the waters of Lake Champlain by tho erection ofa bridge at St Johns. Tho powers granted to Congress which can have any bearing, aro limited to the fol. lowing ; Congress shall have power To pay tho debts and provido for tho common dofenco and general welfare of the United States. To regulale enmmcrco with foreign nations, and among tho seve ral States, and with tho Indian tribes. 1 o declare vvar.grant lottors of marque and reprisal, to raise and support armies, pro vido and maintain a navy to provido for calling forth tho militia, &c To mako nil laws nocessary and proper for carrying win execution uie loregotng powers Tho I'rusidout sit all Itavo power By and with tho advice and consent of tho Senate, to mako treaties Appoint and receive Ambassadors and public Ministers. If tho powor is vested undor the constitution, is it in the President or in Conirross .' If vestod, it must bu by virtue of soino otio arti cle, and nut by a concentration of the powers under uiu vviiuio. in what .section is tho granl contained .' A writer in tho Spectator of2.itli Jan. assorts that the power is in thu General' Uovoriimcnt, that tho proceeding is national, and is a question exolu-ively between two governments. This position proves too much, and would o.vcludo the Governor of Canada from all authority to act ; and not only so, lint no demand could bo mado upon him, even by the President. Ono argument on which ho mainly rests, is, that a foreign government ought not to be permitted to hold the whole United States responsible for thn act ofa Governor, anrf thorcforu that a Governor has no pnwer. This nrgumcnt followed out, would prove that no demand should bo mado upon Iho Govornor ot Canada, lest his rfu sal should givo causu of war against Great Brilntn. Bui the reasoning of tho learned Eontloman is moro specious than sound. It will not do to deny to a State tho exorcise of a powor not prohibited, merely because the mode ol their exercising it may bo objcclioua bio, and may tend to produco hostilities. Tried by such a rule, soinu oflho proceediiiL's at tho norlh-east would lead to a denial of admitted powers. Ilia certain that this powor of surrendering is not specifically granted to Consruss, and if vested, it must bu by nccocsnry implication. but undor what clauso can it bo Inn ly implied It has no connection with enmmurco. It has no connection with tho powor to raise armies and maintain navies. Thu I'rcsidout is au thorizod to mako treaties, but what has tho surrender ofa folon to do with llio power In maku a treaty. If it rosult from tho treaty making power, tho argument would rii'i thus: tho President is nulhorisod to mako treaties, therefore he may surrondor a I'ulon which would he rather an absurd cniiclu-ion, States aiu prohibited from making treaties, but this is no limitation upon llieir power uvor felons. Has It any connection with the war power I f i t lias, it intno rcniotu to bo easily percei ved. Tho Status cannot declare war. This power is wholly delegated to Congtos,i. But Iho Slates have nevertheless amnio powers for protection and defence ; they hnvo power ovor uvury man in thu state; may organize and arm tho militia : cnL'ao in a war of self- I defence, and demand aid against invasion. VOL. XII JVo. 617 I eannol porcclvo the difficulty in conceding tins power lo both governments. As it np pears to mo tho system is thus rendered Tar moro perfect, and each government bolter enabled lo fulfil its peculiar duties, It may be vestod in the gcncrnl government in two ways; First from the far.t thai ii l nn nr. gauized government, having power to enact general laws, and hence if th surrender of felons bo necessary for nny general purposes entrusted to Codgrcss, they may enact a law urinai purpose, and again, Congress aro authorizod to enact laws for tho general wel fare, nnd iftho suricndcr of felons bo condu cive to that end, thoy may ordain it and pre senbo the mode. This view answers ono of llio arguments of tho gentleman boforo allti. Had to, and shows how far tho United Stalest should be responsible, not for tho actsoftho Governors, but for tho acts or thoir own agents. lJul if this view bo correct, tho pow or is not exclusive, but concurrent in tho stato, Tor tho states aro also organized gov ernments, and therefore havo tho saino pow er, and not only so, but thoy aro also autho rised to enact laws for the general weiraro ; so that on tho most liberal and rational modo or considering tho subject tho power must reside in both governments, as incident to tho sovereignty of each, and nccossarv lo the full and porfect execution of tho powers indispu tably granted to each. A Variety of rnsns b.ivn Iman ,ln,.:.1,! Ur. Iho Supremo Court of ibr. ilniio.i . planatorv Of tho nownrs nf tlm Slnm. '..,! showing a concurrent nowor with thn rTniinH Stales. In tho case of Hnnstnn v. MMn.. (Slit Whcalon,) it was hold that " the powers "granted by thoconstilulion lo conirrnsa urn " never exclusive of similar powers existing "in tho stains, itnlosa when the constitution " has expressly in tonus given an exclusive " power to congress, or the exorniso ofa like- " power is prohibited to the stales, or thero is " a direct repugnancy or incompatability in " the exercise of it by the states." This doc trino was cited and enforced in tho case of the City of Now-York vs. Miln, 11 Peters. " In all other cases not full'infr within tlm " classes alreadyrnontioncd, the States retain "concurrent authority with Congress, not " only upon ihe spirit of the constitution, but " upon the soundest principles of'r'casoning." (sooobovo cases.) Even tho grant of an exclusive power to congress may be exercised by the states until congress act upon it, as in mo oanitruptcy cases, 10. Wheat. 19C.J It Iia3 been repeatedly held that a powor granted to Congress for ono purpose, may iiii "u u.eccisc(i oy mo oiaies lor anotnei, although Ihe means xihcd in their execution mail sometimes approach ach other so nearly as to be confounded. 11. Pelcrs, 109, 137, 149. It is only when there is a collision between the laws of tho Union and the laws of tho States, that the slato law must recede. But in this caso there can bo no collision, as con grcss has not legislated. In tho caso of the City of New York ts. Miln, to which 1 havo before alluded, deci. ded in 1C37, II. Peters, tho powcis oftha States and of Iho United Stales under tho constitution woro examined and discussod with groat ability. Tho point thero ruled seems to bo decisivo of the ono under exam ination. It established this broad proposilion, that tho States have llio constitutional pow er of forbidding tho entry of all persons they consider dangerous to the community. But this is no new doctrine, and is contormablo to tho doctrines of national law. Vattel, B.2. c. 7 s. 94, establishes tho doctrine that the sovtrcign may forbid the entry of his lent, lory, either in general lo every slrangci, or in a particular case, as to certain persons. If ho may forbid tho enliy, a fortiori, ho may ro. move them. This is a nart of tho nnw.r ni internal protection, it isa regulation of police) as is tho puiiithinenl ol'crimc which isexclu sivcly with the Mate. 11. Pet. 132.J ft wa said by Judge, Tighlman with great forco nnd proriety Every nation has an undoubted right lo surrender fugitives from oilier ilale.s. JVo Minn has a right to say. I loill force my self into your territory and you ihall pro IcU mc. Thero is a class of men, who, cnleilaining the opinion that the power of surrendering will bo more safe willi the goncral govern! ment than with the slates, reason ratliur fiom thoir wishes than from any accurate know. Icdgo of tho subject. To all Midi, and in all who contend that the power is exclusively with the general government, we havo a ri"ht to say, point nut the section that uranla iho power. The attempt will t.how thai the suppo sition is not Well founded. Again it is said, that if it is not vested in thn United Stales it ought to be, bull hm- loavn to differ. For all geiieial purposes of interna! protection, it is far belter that it should re main in the slates. From Ihe peculiar natum of the duty, wherever there is a call for its performance, thero is a necessity that it should bo dotio without any dolav nml without exciting public attention, least tho object to bo utlaincd should bo de feated. Tho necessity of resorting in all cases to the President even from the oxtremo points of tho Union, would bo intolerable in. practice. It is not an extreme caso to sup. poso that 0110 of our friends may bo robbed on tho praires of St. Johns and murdered, and tho wrotch appear in tho slreets of Uur litigtnu with thu spoil. Shall wo resort lo the Governor of our own state, who alone is) charged with tho duly of internal protection, and when tho slato only can punish such offences, for a warrant, or wait the slow progress of an application to tho President, k. givo tho zenllctnan lime to drive his coach lo Texas? Thu protection that this slato owe to all within ils jurisdiction can only bo porfectly obtained by conceding tho power of surrendering fugitive felons to tho Governor of the slato. The state is the depository of all that most intimately concerns us. tho guardian ofour rights the pro tector of our invaluable blessings.. and should havo the first place in our afl'ectionsi It was never tho intention in the grant of powers to Congress to create an antagonist government, but to render it sub sidiary 10 tho states in promoting the great object of stato sovereignty Till- I'JIOTECTION OK TUB CITIZENS