a writ of habeas corpus issuing from a Federal court. The main question to be determined upon the writ is whether the commissioner had jurisdiction to hear and decide upon the complaint. If so, the next inquiry will be whether there was sufficient legal ground for committing the prisoner to await the requisition of the foreign authorities. The court, in a hearing upon the writ, will not treat it as a "writ of error," and will not look into questions regarding the introduction of evidence in the same manner as on an appeal.2 From the case cited, it appears that there need be no "requisition " by the foreign government until the prisoner has been held for trial by the commissioner.

(e) The final requisite is the warrant surrendering the prisoner to the agent of the demanding State. The warrant is issued by the Secretary of State under his hand and official seal.3

The former mode of procedure is simplified by an act of Congress passed Aug. 3, 1882. This act was occasioned by some difficulties which had arisen concerning the introduction in evidence here of depositions of witnesses, warrants of magistrates, and other papers taken in the foreign country. The statutes of Congress had not been framed with sufficient breadth or precision. The existing law provides that such depositions, etc., or the copies thereof, shall be received for all the purposes of the hearing if they shall be sufficiently authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused shall have escaped. The expression "for similar purposes " means for the purpose of determining in the foreign country whether an alleged fugitive should be extradited from that country. (a) Whatever rule the foreign country applies in such matters in extradition cases, the United States will reciprocate. The certificate of the principal diplomatic or consular officer of the United States residing in the foreign country, will be proof that the documents already referred to, or copies of them, are authenticated as required by this act.6

The writ de homine replegiando existed at common law, though it has now fallen into disuse. Its peculiarity was, that it raised a question which could be tried by a jury, while the questions arising upon a writ of habeas corpus are to be disposed of by a court or judge. The framers of the New York Revised Statutes attempted to adapt this writ to the trial of the question whether a person claimed to be a fugitive slave was so in fact. The statute was held by the State court to be unconstitutional, as contrary to the United States Constitution and the legislation of Congress upon the subject of fugitive slaves. There is nothing at present in the way of reviving this writ by legislation, so far as its revival would not interfere with constitutional provisions.

The writ of ne exeat is a writ which operates as a restraint upon personal liberty, and prevents a person from withdrawing from the limits of the State unless he gives sufficient security to abide the order of the court. It is a remedy in equity jurisprudence. It can only be granted when the court would have a right to enforce its decree against the person, and commit him for contempt if the order were disobeyed. It is a discretionary writ, and granted with much caution. The theory of it is that the decrees of an equity court are, as a rule, only enforceable against the person, and a defendant by withdrawing from the State might practically render the decree of the court ineffectual. There was a great difference of professional opinion upon the point whether this writ had been abolished in New York by statute, until the subject was settled by the Code of Civil Procedure.2 Technically speaking, the writ is abolished. The substance of it, however, remains in later sections, whereby the same relief can now be obtained by order which formerly could be had by the writ.

The subject of Personal Liberty may be closed with a brief reference to the right of religious worship and to freedom of speech and of the press. The first of these may be regarded as

Clarke on Extradition, Spear on Extradition, Wheaton's International Law by Lawrence, Wheaton's International Law by Dana, Hurd on Habeas Corpus, etc. The work of Mr. Spear received high commendation from the Supreme Court of the United States, in the case of People v. Rauscher, 119 U. S. p. 417.

1 Jack v. Martin, 12 Wend. 311, 324; on appeal, 14 Wend. 507. The difficulty was that the writ was framed to try, as a

matter of fact, the question whether the person was a slave, instead of ascertaining whether there was sufficient apparent ground for the claim that he was one, in order to return him to the State from which he was alleged to have fled, where the question of his freedom would properly be tried.

24.

2

§ 548, Collins v. Collins, 80 N. Y. See also §§ 550, 551.

a right in the United States. The First Amendment to the United States Constitution provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. A similar clause is found in State constitutions. The language of the New York constitution is that "the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State to all mankind." 1

It was not the object of the provision in the United States Constitution to allow the plea of religious liberty to be used as a cloak for the violation of law and good order. The right of governmental interference commences "when principles break out into overt acts, against peace and good order." 2 This doctrine was applied to the case of polygamous marriages in the Territory of Utah, contrary to § 5352 of the Revised Statutes of the United States. The court, having held this law constitutional, further said: "So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in fact to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." 4

The people of the United States are to be congratulated that the Supreme Court so successfully drew the line between a false belief which is to be tolerated and the acts dictated by the belief and derived from it, which may properly be prohibited and punished by society.

Like views must be entertained of liberty of speech and of the press, secured by the First Amendment to the United States Constitution. This fairly includes all modes of communicating thought by oral words, or by writing, or printing, or other signs. Still, the liberty thus conceded is subject to the qualification that it must not be used to encourage practices dangerous to the welfare or safety of the State. This view is enforced by provisions of the Penal Code of New York, which prohibit the sale or loan of inde

cent or immoral books or pictures, or the conveying of oral information as to the means of obtaining any indecent article or thing.1

A like result is accomplished in an indirect manner by statutes of Congress prohibiting the carrying of indecent matter in the mails, and punishing any one who knowingly deposits it in the post-office to be carried by mail.2 (a) The ground of this legislation is that Congress has exclusive control over mail-matter and may in the exercise of this power exclude such matter from the mail.3 This would be the only ground for its legislation as to the States, though in such places as the District of Columbia and the Territories, where it has exclusive power of legislation, it might be rested on the general ground of the public welfare and safety. The Supreme Court of the United States in upholding this legislation, subjected it to the qualifications that sealed letters and packages could as a rule only be opened and examined under warrant issued upon oath or affirmation, and that freedom of the press could not be interfered with by Congress by limiting the circulation of newspapers in any other way than by excluding them from the mail. State legislation may accordingly be called into requisition for this purpose so far as it does not infringe upon the State constitution.

1 Penal Code, § 317, as amended by ch. 380 of the Laws of 1884, and ch. 692 of the Laws of 1887.

2 U. S. Rev. St. § 3893.

8 United States v. Bott, 11 Blatch. 346; United States v. Foote, 13 Blatch.

418; United States v. Kelly, 3 Sawy. C. Ct. 566; Ex parte Jackson, 96 U. S. 727. 4 Ex parte Jackson, supra.

5 As prescribed by the Fourth Amendment.

(a) See also Laws of 1888, ch. 1039; 25 Stats. at Large, 496.

CHAPTER IV.

CITIZENS AND ALIENS.

THIS subject will be treated under two general divisions, citizens and aliens.

DIVISION I. CITIZENS.

The term "citizen" is used in the common law, and has a definite meaning attributed to it by writers on political science. One of the earliest works having a marked influence upon English ideas is that of the French writer, Bodin, on the Republic, in six books, first published in 1576. This was translated into English by Richard Knolles, and published in London in 1606. The sixth chapter of the first book treats of citizens and how they differ from strangers. He defines a citizen to be a free subject holding of the sovereignty of another man. He argues from this definition that a slave is no citizen nor is a stranger coming into another seigniory. Some citizens are natural; others are naturalized.1 Of natural citizens, some are free-born, some are slaves. Such slaves being set at liberty instantly become citizens. The naturalized citizen is he who hath submitted himself to the sovereignty of another, and is so received into the number of citizens. There are thus three modes of becoming a citizen, free birth, naturalization, and enfranchisement. Accordingly,

he continues, we must agree with Plutarch, that they are to be called citizens that enjoy the right and privileges of a city (or state). This is to be understood according to the condition and quality of every one: the nobles as nobles; the commoners as commoners; the women and children in like case according to the age, sex, condition, and deserts of every one of them.2 Using the same laws, magistrates, and customs are the true marks of a true citizen.3 He then discourses concerning the "immunities and privileges "4 of a citizen. He makes a remark which has a singular sound when applied to the United States, viz., that

1 Page 48. (References are to Knolles's

Ed., 1606.)

2 Page 53.

8 Page 54.

4 Page 59. This is a phrase found in the United States Constitution.