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The Confederation could seldom be enforced or carried into Execu-
tion if no Authority but the Executive only of the Offended State
could charge such Criminal: A Criminal for example of Massa-
chusets has fled to this State and is here discovered: if he cannot be
charged but by the Executive of Massachusets no Process can issue
for his arrest no step taken to stop his Flight or prevent his Escape
till information can be sent to Massachusets, and the Executive there
have an Opportunity to make their charges and send them forward
with the Evidence. In the mean time the Criminal is gone and per-
haps while the Information is travelling to Boston he has got on the
high Seas on his way to Europe. Besides who would be at the pains
and Expence of giving Information which in all probability in nine
Instances out of ten would be totally useless. —
But you are of Opinion that the Governor alone might have ar-
rested Mr Carbury after Demand. I conceive there is an Obvious
Distinction between Arresting a Criminal and the sending him out
of the State, and delivering him up to another Power and Jurisdic-
tion. The Powers are separate and distinct and in all free Govern-
ments they are exercised by different Branches of its Authority.
The Power to Arrest is ever lodged with the Magisterial or judicial
Authority, the Power of delivering up a Fugitive Offender is merely
ministerial and Executive and accordingly lodged with the Executive.
The Confederation does not say what Authority in the State shall
arrest or what Authority shall deliver up such Offender : it only says
that on the Demand of the Governor or Executive of the Offended
State the Criminal shall be delivered up by the State in which he is
found. It is therefore only by Construction and Implication that the
Governor can exercise even the Power of delivering up such Crimi-
nal, but this Construction and Implication are founded upon a clear
and obvious Necessity, and I admit that the Power to deliver up is
solely and exclusively with the Governor who alone by our Consti-
tution and Form of Government is to exercise all Executive Powers
in which the Advice and Concurrence of the Council is not required —
The Confederation stipulates that this Power shall be exercised:
it is also an Executive Power and there is no other Department in
our Government that is Executive but the Governor or Governor
and Council, and in this Instance the Constitution does not require
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November
11
Liber No. 78
p. 465
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the advice and Concurrence : — it therefore might be with the Gov-
ernor and with hime alone.
But on what Principles, and by what Authority shall he exercise
the Magisterial Power to issue a Warrant and to arrest a Fugitive
Criminal? The Constitution and Form of Government gives him
no such Power, nor does the Confederation say who shall exercise it.
If the Governor then is to exercise it solely and exclusively as in-
sisted upon he must take it under the Confederation by Construction
and Implication But when Powers are assumed by Implication and
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p. 466
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