do many other acts of royal authority, which involve the interests of the whole realm, but what regards the security, the interest, or the honour of the province over which he presides, every governor of a colony, as the king's representative, must hold and be authorised to exercise all royal prerogative incident to that situation, as a thing requisite for the maintenance of the public welfare, unless it has been particularly excepted and reserved by his commission. The governor is answerable to the king for this exercise of the prerogative, and for the right discharge of his duty; and if, in the case before us, the party be aggrieved, the question must be settled according to the principles of international law, between the sovereign of that country to which the prisoner belongs, and the king's majesty, but not by his courts of justice.

4. It has also been objected that no demand appears to have been made by the American Government, or by any of the American States, for the surrender of the prisoner. But it is not for the court to inquire into this. The nature of the demand, and the sufficiency of it, must be best known to the executive to which it is made, and which alone is competent to determinę, how far the royal prerogative ought to be exercised. What we have to determine is, whether there was legal ground for the arrest and surrender of the prisoner, and we hold there was. By the warrant of his excellency the governor in chief, to the sheriff, the latter is authorised to convey and deliver up the prisoner to such person or persons

as according to the laws of the said state of Vermont, may be lawfully authorised to receive him, that is, the executive authority of that state, and we must presume, it was the same authority which demanded him. This is not, however, a question for our consideration.

But the prisoner comes before us in a very different character from that of a subject to whom protection is due, as of right, he is an alien, to whom protection is not due, if the king sees fit to withhold it. The observation of Judge Tilghman may well be apapplied to him-" That he cannot force himself into the king's territories, and say, you shall protect me." It is held, (Chitty on Prerog. p. 49, 1, Bl. Com. 259, 260.) that alien friends may lawfully come into the country without any license or protection from the crown, though it seems that the crown, even at common law, and by the law of nations, possesses a right to order them out of the country, or prevent them from coming into it, whenever his majesty thinks fit-and the reason given is (Ch. Crml. law, 1 vol. 131, and 143, Note [a]) that it is inseparable from the governing power in any country, that it should be able to take precautions against foreigners residing in such country, and particularly in a country where foreigners are only amenable to the ordinary laws. The prisoner came into this province under suspicious circumstances, charged with a felony-as an alien his conduct did not merit protection, unless he had come with a fairer character-and he ought not to be surprised, nor complain that

in some degree subsided; and though our views of the enormity of the transaction are the same, yet now, when passion is silenced, we can deliberate upon this subject with calm and sober judgment; and in whatever we may do, we proceed with that dispassionate reflection, which should always mark the conduct of men deliberating upon great and serious objects, and the right decision of which, concerns the best interests of public liberty, and the private security of the citizen.

The crime with the commission of which the defendants stand charged, is that they conspired together to secure and falsely imprison William Morgan, that in pursuance of such conspiracy they seized him by force, and carried him against his will, and without any legal warrant or justifiable cause, to parts and places without the territory and jurisdiction of the state of New-York, and in one count to parts and places unknown. They are also charged with having assaulted him, seized him, falsely imprisoned, secreted and detained him, from the day of his caption to the time of finding the indictment.These charges constitute the offences committed by the defendants and others, against the laws of this state, in the forcible and violent abduction and detention of this man--as the law existed at the time of committing the offence.

In order to prove a conspiracy, it is not necessary to establish the fact that a conspiracy was actually formed, and a precise agreement entered into the conspiracy and confederacy among men to effect an unlawful purpose, is derived

and inferred from their acts and conduct-and hence if it be established that two or more men are committing acts which tend to the perpetration of a crime, or to the injury of an individual, the law infers that they act in pursuance of an agreement previously formed; and there is good reason for this rule; for if the prosecutor were held to prove a positive agreement among conspirators, justice would in almost every instance fail. Men do not call witnesses to their criminal intents and conduct--offences are designed and generally committed in secret, and in such manner as to elude observation and detection. The rule, therefore, in this case, is one of necessity and of salutary effect; and by it, your view of the offence charged on the defendants will be governed.

The facts which gave rise to the conspiracy which, I am authorised to say, existed among the defendants and others, are, briefly-That this William Morgan was compiling a book professing to reveal the secrets of masonrywhich book was printing at Batavia, by David C. Miller. The means of suppressing or preventing the publication of that book, was a subject of deliberation among masons in various parts of the country-and we expect to be able to show that it was determined that the only effectual mode of preventing that publication, was the removal of the man; or, haying the power over him, to prevent his agency in the work. they should have obtained possession of the papers then prepared by him, he could have written others so that without the power

If

of preventing his ability to write, their project would have been useless. In pursuance of this plan, and governed by these views, we say that these defendants procured a warrant for Morgan from a magistrate in this county, went to Batavia and brought him here; on his examination he was discharged. He was then committed to jail, on an execution for a debt due one of the conspirators, and on the next evening (12th September last) was decoyed from the jail, and by force seized by several men, put in a carriage, driven to Rochester, and from thence to Fort Niagara, at which place all intelligence ceases; and every inquiry as to his subsequent fate, has proved fruitless and unsatisfactory. Now I am not bound to prove all these facts, as to his removal to Fort Niagara; if I can show him in their hands, by force, and that they removed him secretly, it is enough. The man is then in their custody, and the laws, the sovereignty of this state may demand him at their hands. If they had right thus to arrest a citizen, and thus to transport him, let them show it. But if they do not, we have a right to infer that their acts were lawless, and to charge them with the destruction of the liberty of this unhappy man-and if his blood be shed, that also is upon them. With this brief statement of the law and the facts, I invite your close attention to the testimony which I will now proceed to introduce, and refer you to that for a particular knowledge of the

case.

Mr. Whiting then introduced witnesses to sustain the indictment.

David C. Miller, sworn. Says that he resides at Batavia; knew William Morgan; he resided at Batavia in September last, and for some months previous. Morgan had been engaged for some time previous in writing a book on Free Masonry. Witness published a newspaper at Batavia; notice of the book was not published in the paper till after Morgan was carried away; but it was reported several weeks before that Morgan was so engaged. This excited a good deal of interest. Morgan was taken from Batavia on the 11th of September in a carriage with several persons. Witness knew only one, Mr. Hayward, who was an officer. Morgan's family then were, and still are in Batavia. Morgan has never returned, nor been heard of to the knowledge of witness, except in passing from Batavia to Canandaigua. On the 11th of September, Monday morning, witness rose late, sun an hour and a half high; when witness heard that Morgan was arrested on a warrant, and was at Danold's inn. Witness went in pursuit of counsel, and therefore did not see Morgan till he was in the carriage. Witness came up and spoke to Morgan, and asked him to get out, because witness was bail for him for the jail limits. Mr. Hayward stepped up and said, "Morgan must and shall go." When witness first spoke to Morgan, he paid no attention to the remark, and witness was surprised to see the change in his appearancehis countenance assumed an ashy paleness, his eye was glassy and set. Witness then spoke to him with vehemence, at which Morgan started, and was in the act of

rising, when some one sitting by his side, put his hand on his thigh, and said in a low voice, " sit still." Witness does not know whether there was one or two persons on the same seat. Immediately, Mr. Danold, the innkeeper, seized witness by the shoulder and turned him round, and shut the carriage door with violence. The officer, Hayward, ordered the driver to "go on," and the horses started off full speed. One of the party was left behind; cannot state how many persons were in the carriage, but should say four or five. Thinks one of the party sat on the box with the driver, and that the person left behind was the one who said to the driver "go on." Cross examined. Has heretofore been examined as a witness as to this matter, at Batavia, and gave a very full and minute history of the transactions, commencing with what he has testified here. Don't remember that he said at that examination any thing as to Morgan's looks, when he saw him in the carriage. Did not know Hayward at the time, but has since seen him and recognizes him. Does not remember that any one said to him," if you have any authority to keep Morgan, show it," no such thing was said.

Doct. Samuel Butler, sworn. Last September, he resided in the town of Stafford, and Major Ganson also. Ganson kept a public house there; witness was at Ganson's the Sunday evening previous to the abduction of Morgan. When witness went in, there were none there but neighbours. Started to go home, when he saw a coach driving up, and some one called him back; wasintroduced

by Ganson to a stranger said to be from Canandaigua-don't remember the name, but thinks it was Sawyer, or Seymour. The stranger took witness by the arm and walked out a few rods towards the stone building, and said, we or the officer, has a warrant for Morgan. Witness asked, "what do you expect to effect, by taking Morgan?" Don't remember that any reply was made, and they walked into the dining room several persons were there-A Mr. Edy, Ella G. Smith, a man by the naine of Pratt, and the party said to be from Canandaigua. Did not know any of the party, and cannot now identify any of them. In the room, saw the strangers, and asked them the same question, "What do you expect to effect by taking Morgan away?" told them that he thought it was bad policy. Some one of them replied, "we, or I, have started for that purpose, and shall go on." Had not been informed that a party were to come from Canandaigua that evening for any purpose-was told by some of the party that the warrant was for theft. Witness was going to Batavia, and was asked by some of the party, to inform Mr. Follett and Major Seaver, that they were coming. Witness went to Batavia and saw Follet, and informed him that they were coming for the purpose of taking Morgan. Follett replied, "I wish you would go back and tell them not to come, for our village has been troubled enough." Witness returned, and met about two miles east of the village a carriage, which he supposed to be the same party: Major Ganson was with them: witness told them what Follett had