552 Journal and Correspondence.

November
11
Liber No. 78
p. 466

Construction, such Construction & Implication ought to be founded
on a clear and obvious Necessity — What necessity can possibly exist
with Regard to his exercising this Power? Is not the judicial and
Magisterial Authority of the State, as competent to arrest a Fugi-
tive Criminal as any other Criminal? Is not the Power to arrest,
a Branch of judicial Authority and does not our Bill of Rights say
the Executive and Judicial ought to be separate and distinct? and
where can it be so effectually evercised as by the Magisterial or judi-
cial Authority? The Magisterial Power is dispersed over the whole
State : if a Fugitive Criminal is detected in any of the Counties a
Warrant may be immediately had of a Justice of the Peace and the
Criminal arrested and secured. But if the Power to Arrest be in
the Governor only the Criminal may escape before an Application
could reach him or his Warrant be obtained.
With Regard to the Objection, that if such Criminal be arrested
by the judicial Power it must conform in the Exercise of it to the
Constitution and Form of Government of this State and there must
be an Oath in all cases and the Party entitled to Bail I apprehend
the Objection is made upon very mistaken principles. The Confed-
eration is the supreme overuling Compact, Constitution, and Gov-
ernment of every State : the Power to arrest a Fugitive Criminal is
derieved from the Confederation and the Exercise of it must be
guided by that alone: the Forms of Process and Arrest prescribed
by the Constitution and Form of Government with Regard to it's
own Citizens for Offences within its Limits cannot apply to Arrests
under the Confederation. A Fugitive Criminal arrested under the
Confederation in my Opinion is not entitled to Bail; he must be com-
mitted and held in Custody until the State in which the Offence is
committed is Officially informed of the arrest and Commitment and
have a reasonable time to Demand him.

p. 467

I certainly did think you declined proceeding against M^r Carbury
in Expectation that the State of Pennsylvania would have demanded
him : it was my Opinion that the Moment M^r Carbury was de-
manded the Confederation superseded the judicial Authority and
Jurisdiction of this State over such Offences as he was charged to
have committed in Pennsylvania. It is true, M^r Carbury's Offence,
tho' committed in Pennsylvania was cognizable and triable by our
Laws but it is as true the Confederation expressly stipulates that
on Demand a Fugitive Criminal shall be delivered up: The Con-
federation is the overuling Power : it cannot be controled by the
Laws or Acts of Assembly of any Individual State : had a Demand
been made I should have considered myself as obliged to have in-
terposed the Authority of Government and prevented you from pro-
ceeding against him on the Treason Act of this State. If this State
can pass an Act making Offences done in another by it's Citizens
cognizable and triable here, and on that Ground retain the Criminal