| 67 to Missouri, unless he has fled from that State.
3. The prisoner has a right to prove facts not repugnant to the return, and even to go behind the return and contradict it, unless committed under a judgment of a court of competent jurisdiction.-3d Bacon 435, 438.-3d Peters 202.-Gale's Rev. Laws of Ills. 323.
The testimony introduced by Smith at the hearing, showing conclusively that he was not a fugitive from justice, is not repugnant to the return.
J. Lamborn, Attorney General of the State of Illinois, in support of the points made by him, cited 2d Condensed Rep. 37; Gordon's Digest, 73; Gale's Statutes of Illinois 318; Conkling 85; 9th Wendall 212.
And afterwards, on the 5th day of January 1843, Judge POPE delivered the following
OPINION:
The importance of this case, and the consequences which may flow from an erroneous precedent, affecting the lives and liberties of our citizens, have impelled the court to bestow upon it the most anxious consideration. The able arguments of the Counsel for the respective parties have been of great assistance in the examination of the important question arising in this cause.
When the patriots and wise men who framed our Constitution were in anxious deliberation to form a perfect union among the states of the confederacy, two great sources of discord presented themselves to their consideration: the commerce between the States, and fugitives from justice and labor. The border collisions in other countries had been seen to be a fruitful source of war and bloodshed, and most wisely did the constitution confer upon the National Government the regulation of those matters, because of its exemption from the excited passions awakened by conflicts between neighboring States, and its ability alone to adopt a uniform rule, and establish uniform laws among all the States in those cases.
This case presents the important question arising under the constitutiou [constitution] and laws of the United States, whether a citizen of the State of Illinois can be transported from his own State to the State of Missouri, to be there tried for a crime, which, if he ever committed, was committed in the State of Illinois; whether he can be transported to Missouri, as a fugitive from justice, when he has never fled from that State.
Joseph Smith is before the court on habeas corpus, directed to the Sheriff of Sangamon County State of Illinois. The return show that he is in custody under a warrant from the Executive of Illinois, professedly issued in pursuance of the constitution and laws of the United States, and of the State of Illinois, ordering said Smith to be delivered to the agent of the Executive of Missouri, who had demanded him as a fugitive from justice, under the 2nd section, 4th article of the Constitution of the United States, and the act of Congress passed to carry into effect that article. The article is in these words, viz: "A person charged in any State with Treason, Felony, or other crime, who shall flee from justice and be found in another State, shall on demand of the Executive authority of the State from which he fled be delivered up to be removed to the State having jurisdiction of the crime." The act of Congress made to carry into effect this article, directs that the demand be made on the Executive of the State where the offender is found, and prescribes the proof to support the demand, viz: Indictment or affidavit.
The Court deemed it respectful to inform the Governor and Attorney General of the State of Illinois, of the action upon the habeas corpus: on the day appointed for the hearing, the Attorney General for the State of Illinois, appeared, and denied the jurisdiction of the Court to grant the Habeas Corpus.
1st. Because the warrant was not issued under colour [color] or by authority of the United States, but by the State of Illinois.
2d. Because no habeas corpus can issue in this case from either the Federal or State courts to enquire [inquire] into facts behind the writ. In support of the first point, a law of Illinois was read, declaring that whenever the Executive of any other State shall demand of the Executive of this State, any person, as a fugitive from justice, and shall have complied with the requision [requisition] of the act of Congress in that case made and provided, it shall be the duty of the Executive of this State to issue his warrant to apprehend the said fugitive, &c. It would seem that this act does not purport to confer any additional power upon the Executive of this State, independent of the power conferred by the Constitution and laws of the United States, but to make it the duty of the Executive to obey and carry into effect the act of Congress. The warrant on its face purports to be issued in pursuance of the Constitution and laws of the United States, as well as of the State of Illinois. To maintain the position that this warrant was not issued under color or by authority of the laws of the United States, it must be proved, that the United States could not confer the power on the executive of Illinois. Because if Congress could and did confer it, no act of Illinois could take it away, for the reason that the Constitution and laws of the
(page 67) |
