| 66 and cause him to be safely kept and delivered to the custody of Edward R Ford, who has been duly constituted the agent of the said State of Missouri, to receive said fugitive from the justice of said State, he paying all fees and charges for the arrest and apprehension of said Joseph Smith, and made due return to the Executive Department of this State, the manner in which this writ may be executed.
"In testimony whereof," &c.
The case was set for hearing on the 4th day of January. 1843, on which day Josiah Lamborn, Attorney General of the State of Illinois, appeared, and moved to dismiss the proceedings, and filed the following objection to the jurisdiction of the Court, viz:
"1st. The arrest and detention of Smith was not under or by color of authority of the United States, or of any officers of the United States, but under and by color of authority of the State of Illinois, by the officers of Illinois.
2d. When a fugitive from justice is arrested by authority of the Governor of any State, upon the requisition of the Governor of another State, the courts of justice, neither State or Federal, have any authority or jurisdiction to enquire [inquire] into any facts behind the writ."
The counsel of the said Joseph Smith then offered to read in evidence affidavits of several persons, showing conclusively that the said Joseph Smith was at Nauvoo, in the County of Hancock and State of Illinois, on the whole of the 6th and 7th days of May, in the year 1842, and on the evenings of those days more than three hundred miles distant from Jackson County, in the State of Missouri, where it is alleged that the said Boggs was shot, and that he had not been in the State of Missouri at any time between the 10th day of February and the 1st day of July, 1842, the said persons having been with him during the whole of that period.-That on the 6th day of May aforesaid, he attended an officer's drill at Nauvoo aforesaid, in the presence of a large number of people, and on the 7th day of May aforesaid he reviewed the Nauvoo Legion in presence of many thousand people.
The reading of these affidavits was objected to by the Attorney General of the State of Illinois, on the ground that it was not competent for Smith to impeach or contradict the return to the Habeas Corpus. It was contended by the counsel of the said Smith, 1st, That he had a right to prove that the return was untrue. 2d, That the said affidavits did not contradict the said return, as there was no averment under oath in said return that the said Smith was in Missouri at the time of the commission of the alleged crime or had fled from the justice of that State, The Court decided that the said affidavits should be read in evidence, subject to all objections; and they were read accordingly.
The cause was argued by J. Butterfield and B. S. Edwards, for Smith, and by Josiah Lamborn, Attorney General of the State of Illinois, contra.
J. Butterfield, counsel for Smith, made the following points:-
1. This court has jurisdiction.
The requisition purports on its face to be made, and the warrant to be issued, under the Constitution and laws of the United States, regulating the surrender of fugitives form justice.-2d sec. 4th article Const. U. S.-last sec, of the act of Congress of 12th Feb. 1793.
When a person's rights are invaded under a law of the United States he has no remedy except in the courts of the United States.-2d sec. 3d article Const. U. S.-12th Wend. 325.-16 Peters 543.
The whole power in relation to the delivering up of fugitives from justice and labor, has been delegated to the United States, and Congress have regulated the manner and form in which it shall be exercised. The power is exclusive. The State Legislatures have no right to interfere, and if they do, their acts are void.-2d vol. laws U. S. 331.-16 Peters 617-18, 623.-4th Wheaton's Rep. 122, 193-12, Wend. 312.
All courts of the United States are authorized to issue writs of Habeas Corpus when the prisoner is confined under or by color of authority of the United States.-Act of Congress of Sept. 24th. 1789. sec. 14. 2d condensed 33.-3d Cranch 447. 3d Peters 193.
2. The return to the Habeas Corpus is not certain and sufficient to warrant the arrest and transportation of Smith.
In all cases on Habeas Corpus previous to indictment, the court will look into the depositions before the Magistrate, and though the commitment be full and in form, yet if the testimony prove no crime, the court will discharge Ex-parte.-Taylor 5th, Cowen 50.
The affidavit of Boggs does not show that Smith was charged with any crime committed by him in Missouri, nor that he was fugitive from justice.
If the commitment be for a matter for which by law the prisoner is not liable to be punished, the court must discharge him.-3. Bac. 434.
The Executive of this State has no jurisdiction over the person of Smith to transport him
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