Page:The Pacific Law Magazine, Volume 1, Number 1, January 1867.pdf/31

 DISCHARGE

ON

HABEUS

oo

CORPUS.

OO

The Federal Constitution having given Congress the exclusive power to legislate regarding the sur¬ render of fugitives from justice ; that power having been exercised by Congress, it follows that our statute, under which the Police Court acted, is in¬ operative and void, and the petitioner is illegally held by the commitment and the proceedings there¬ under. Therefore, the petitioner, Thomas Donahue, is discharged from custody. Note.—We have given only a synopsis of the exhaustive and elaborate brief of the learned counsel for the petitioner; and have not been fur¬ nished with a copy of the brief of counsel for the State.

It would seem,

however, from an examination of all the authorities cited by the counsel for petitioner, that it is established:— 1st. That the power to legislate concerning the recapture of fugitives from justice, between the States or Territories of the United States, is vested in Congress, by the Constitution. 2d. That all proceedings concerning the demand, subsequent arrest and return of such fugitives, must be regulated by act of Congress. 3d. That such act of Congress is conclusive, and no State statute can impede, contravene, or aid it. But it is not so clear upon the authorities referred to by Col. James, or upon principle, that a State has no right to legislate concerning the arrest and confinement, for a reasonable period, of a class of persons described as “ fugitives from justice,” found within her borders.

It is undeniable that

the first duty of a government, is to protect its own citizens and to main¬ tain peace, and order and security of life and property, within the limits over which it holds jurisdiction. The object of aU punitive law in Christian nations, is not revenge, or punishment, per se, for crimes committed, but the prevention of crime. All persons, whether citizens or aliens, ought to be subject to such re¬ straint of their personal libert)-, by the law, as may be necessary to the peace and security of the inhabitants of the State or community wherein they may be.

To this end, statutes are enacted, authorizing the arrest

and confinement of persons, against whom there are reasonable apprehen¬ sions that they will perpetrate crime.

Now is it not competent for the

Legislature to determine, what character or class of persons it shall deem likely to commit crime, and to provide how the fact, that they are danger¬ ous persons, and likely to commit crime, shall be ascertained ? Is not this kind of legislation within the proper scope of Police regula¬ tions for the security of peace and order in the State ?