away, and the party deprived of all right to a jury trial, by closing the only path by which it can be reached, this provision cannot be supported. It operates, in fact, as a penalty upon the party for claiming the appeal given him by the Constitution.

Sixth. The 33d art. of the Bill of Rights declares that excessive bail shall not be demanded. The 5th section of the bill before us enacts that "No person shall be surety, directly or indirectly, under the provisions of this act, in more than one case. "This provision seems hardly consistent with the constitutional prohibition against excessive bail. The act seems to regard exclusively the person who becomes bail, without considering his sufficiency, and to render it as difficult as possible for the accused to procure bail. If it had been added that the accused should not have the benefit of counsel to defend him, the parallel between the present bill and the practice in England in former days, would have been complete.

1

Seventh. It has been supposed that the provisions of the Constitutions of the U. States and of New Hampshire were intended, among other things, to secure an impartial trial to accused persons. The 6th amendment to the Constitution of the United States provides that the accused shall “be confronted with the witnesses against him." But the 5th section of the bili enacts that where the offence is committed on the premises of a person, by another person in his employment, proof of the commission of the offence by the agent shall be sufficient to convict the principal Upon the trial, then, of the principal, it would be sufficient to prove that a person in his employ committed the offence on his premises, but it need not be shown that the principal directed it, or even knew of it. He is not confronted with the witnesses against him, but with those against a third person, whose crime is dexterously visited on his head. If his hired servant should commit a murder on his premises, the same principle would condemn the master to suffer the penalty. But this does not seem to be in accordance with the spirit of our Constitution, or of any code of laws known to civilized man.2

1 Sect. 5 was as follows- -"In case of the alleged violation of the provisions of the fourth section of this act, by any clerk, servant, agent or other person, in the employment, or on the premises of another, the principal or principals, as well as the clerk, servant, agent or other person as aforesaid, may be charged jointly in the same complaint, and tried at the same time, and the proof of the commission of the offence by the clerk, servant, agent or other person as aforesaid, shall be sufficient to convict the principal or principals, as well as said clerk, servant, agent or other person, and judgment shall be rendered against each of them, and each of them shall be subject to incur the same punishment and in the same manner as if the proceedings had been against each of them separately; and no person shall be surety, directly or indirectly, under the provisions of this act, in more than one case. And any justice of the peace in any city or town may have jurisdiction of all cases arising under this act, which a justice court is competent to try, in the city, town or county in which he resides, notwithstanding the provisions of any other act, either special or general. And the delivery of any spirituous or intoxicating liquors in any shop, store or other building or place whatever, except a private dwelling-house, shall constitute a sale by the person delivering the same; and in any private dwelling-house, a delivery of such liquors, with payment or promise of payment, either before or after the delivery, shall constitute a sale by the person delivering the same; and all forfeitures or fines, bonds and recognísances arising under this act, shall go to the cities or towns where the offences were committed."

The Supreme Court of Massachusetts have passed upon this question. In Commonwealth v. Nichols (10 Met. 262, 263), they use the following language: "It seems to us that the case of a sale of liquors prohibited by law, at the shop or establishment of the principal, by an agent or servant usually employed in conducting his business, is one of that class in which the master may properly be charged criminally for the act of the servant. We think that a sale by the servant in the shop of the master, is only primâ facie evidence of such sale by the master as

Eight. The people have a right to be secure against all unreasonable searches of their houses, &c., and all search warrants must be under oath, &c. (Const. of the U. S., Amendment 4; Const. of N. H., Bill of Rights, sec. 19.) But by the 15th section of the bill, the information to the mayor, &c., need not be under oath; it may be verbal only; suspected places may be searched without a warrant, and liquors seized; persons may be arrested without any warrant, and carried before a justice, and if it be shown that the liquors were intoxicating, and were in the possession of the accused, he is to be imprisoned. The offence may consist in keeping the liquors in any place for selling refreshments, whether they are intended for sale or not. It seems difficult to reconcile all the provisions of this section with the Constitution.

Recent American Decisions.

Superior Court of New York, November, 1852.

THE PEOPLE EX RELATIONE LOUIS NAPOLEON V. JONATHAN

LEMMON.

Habeas Corpus The right of Masters to their Slaves, when necessarily passing through a Free State with them, in transit from one Slave State to another, discussed and denied.

L., a resident of Virginia, a slaveholding State, and the lawful owner of slaves therein, intending to remove with his slaves to Texas, another slaveholding State, proceeded by water with the said slaves from Virginia to New York, a non-slaveholding State, with the intention of taking a steamer at New York and going therein with his slaves to Texas, and without intending to remain in New York longer than was necessary for said purpose. A writ of habeas corpus was served upon the respondent in New York, and the above facts appearing upon the return thereto. it was held, that thereby the slaves, by the law of New York, were made free, and that neither the Constitution of the United States, nor the law of nature or nations, sustained the alleged right of the owner to hold the parties as slaves in New York.

THE facts of the case sufficiently appear in the opinion of the court, which was delivered by

PAINE, J.-This case comes before me upon a writ of habeas corpus, issued to the respondent, requiring him to have the bodies of eight colored persons, lately taken from the steamer City of Richmond, and now confined in a house in this city, before me, together with the cause of their imprisonment and detention.

The respondent has returned to this writ, that said eight

would subject him to the penalty for violating the statute forbidding the sale of spirituous liquor without license; that the relation of these parties, the fact that the defendant was in possession of the shop and was the owner of the liquor, and that the sale was made by his servant, furnish strong evidence to authorize and require the jury to find the defendant guilty. But we cannot say that no possible case can arise in which the inference from all these facts may not be rebutted by other proof. Unexplained they would be sufficient to convict the party."

colored persons are the property of his wife, Juliet Lemmon, who has been their owner for several years past, she being a resident of Virginia, a slaveholding State, and that by the Constitution and laws of that State they have been, and still are, bound to her service as slaves; that she is now, with her said slaves or property, in transitu from Virginia to Texas another slaveholding State, and by the Constitution and laws of which she would be entitled to said slaves and to their service; that she never had any intention of bringing, and did not bring them into the State to remain or reside, but was passing through the harbor of New York, on her way from Virginia to Texas, when she was compelled by necessity to touch or land, without intending to remain longer than was necessary. And she insists that said persons are not free, but are slaves as aforesaid, and that she is entitled to their possession and custody.

To this return, the relator has put in a general demurrer. I certainly supposed, when this case was first presented to me, that, as there could be no dispute about the facts, there would be no delay or difficulty in disposing of it. But, upon the argument, the counsel for the respondent cited several cases which satisfied me that this case could not be decided until those had been carefully examined.

The principle which those cases tend more or less forcibly to sustain, is, that if an owner of slaves is merely passing from home with them, through a free State, into another slave State, without any intention of remaining, the slaves while in such free State will not be allowed to assert their freedom. As that is precisely the state of facts constituting this case, it becomes necessary to inquire whether the doctrine of those cases can be maintained upon general principles, and whether the law of this State does not differ from the laws of those States where the decisions were made.

I shall first consider whether those cases can be sustained upon general principles.

The first case of the kind which occurred was that of Sewall's Slaves, which was decided in Indiana, in 1829, by Judge Morris, (3 Am. Jurist, 404.) The return to the habeas corpus stated that Sewall resided in Virginia, and owned and held the slaves under the laws of that State; that he was emigrating with them to Missouri, and on his way was passing through Indiana, when he was served with the habeas corpus.

It, however, appeared on the hearing that Sewall was not going to Missouri to reside, but to Illinois, a State whose laws do not allow of slavery. The Judge for this reason discharged the slaves. This case, therefore, is not in point, and would be entirely irrelevant to the present, were it not for a portion of the Judge's opinion, which was not called for by the case before him, but applies directly to the case now before me.

"By the law," he says, "of nature and of nations, (Vattel, 160,) and the necessary and legal consequences resulting from the civil and political relations subsisting between the citizens as well as the States of this Federal Republic, I have no doubt but the citizen of a slave State has a right to pass upon business or pleasure, through any of the States attended by his slaves or servants; and while he retains the character and rights of a citizen of a slave State, his right to retain his slaves would be unquestioned. An escape from the attendance upon the person of his master, while on a journey through a free State, should be considered as an escape from the State where the master had a right of citizenship, and by the laws of which the service of the slave was due. The emigrant from one State to another might be considered prospectively as the citizen or resident of the State to which he was removing; and should be protected in the enjoyment of those rights he acquired in the State from which he emigrated, and which are recognised and protected by the laws of the State to which he is going. But this right I conceive cannot be derived from any provision of positive law."

The next case relied upon is Willard v. The People, (4 Scammon's Rep. 461,) and which was decided in the State of Illinois in 1843. It was an indictment for secreting a woman of color, owing service to a resident of Louisiana. The indictment was under the 149th section of the Criminal Code, which provides that—

"If any person shall harbor or secrete any negro, mulatto, or person of color, the same being a slave or a servant owing service or labor to any other persons, whether they reside in this State or any other State, or Territory or District, within the limits and under the jurisdiction of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every such person so offending shall be deemed guilty of a misdemeanor, and fined not exceeding five hundred dollars, or imprisoned not exceeding six months."

It appears that the woman of color was a slave, owned by a resident of Louisiana, and that, while passing with her mistress from Kentucky to Louisiana through the State of Illinois, she made her escape in the latter State, and was secreted by the defendant. There were several questions raised in the case which it is unnecessary now to notice. The indictment, which was demurred to, was sustained by the court. The main objection to it was the section of the

code under which it was found, was a violation of the sixth article of the Constitution of the State of Illinois, which declares that "Neither slavery nor involuntary servitude shall hereafter be introduced into this State, otherwise than in the punishment of crimes whereof the party shall have been duly convicted."

The court in answering this objection, say :

"The only question, therefore, is the right of transit with a slave; for if the slave upon entering our territory, although for a mere transit to another State, becomes free under the Constitution, then the defendant in error is not guilty of concealing such a person as is described in the law and in the indictment. The 149th section of the Criminal Code, for a violation of which the plaintiff is indicted, does most distinctly recognise the existence of the institution of slavery in some of these United States, and whether the Constitution and laws of this State have or have not provided adequate remedies to enforce within its jurisdiction that obligation of service, it has provided by this penal sanction, that none shall harbor or conceal a slave within this State, who owes such service out of it. Every State or Government may or may not, as it chooses, recognise and enforce this law of comity. And to this extent this State has expressly done so. If we should, therefore, regard ourselves as a distinct and separate nation from our sister States, still as by the law of nations, (Vattel, B. 2, ch. 10, sec. 132, 133, 134.) the citizens of one government have the right of passage through the territory of another peaceably, for business or pleasure, and that too without the latter's acquiring any right over the person or property, (Vattel, B. 2, sec. 107, 109.) we could not deny them this international right without a violation of our duty. Much less could we disregard their constitutional right, as citizens of one of the States, to all the rights, immunities and privileges of citizens of the several States. It would be startling indeed if we should deny our neighbors and kindred that common right of free and safe passage which foreign nations would hardly dare deny. The recognition of this right is no violation of our Constitution. It is not an introduction of slavery into this State, as was contended in argument, and the slave does not become free by the Constitution of Illinois by coming into the State for the mere purpose of passage through it."

Another case cited by the respondent's counsel was the Commonwealth v. Aves, (18 Pick. 193.) In this case, the owner brought her slave with her from New Orleans to Boston, on a visit to her father, with whom she intended to spend five or six months, and then return with the slave to New Orleans. The slave being brought up on habeas corpus, the court ordered her discharge. The case was fully argued, and Chief Justice Shaw closes a very elaborate opinion with these words: "Nor do we give any opinion upon the case, where an owner of a slave in one State is bona fide removing to another State where slavery is allowed, and in so doing necessarily passes through a free State, or where by accident or necessity he is compelled to