| 68 United States passed in pursuance of it, and treaties, are the supreme law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding. This is enough to dispose of that point. If the Legislature of Illinois, as is probable, intended to make it the duty of the Governor to exercise the power granted by Congress, and no more, the Executive would be acting by authority of the United States. It may be that the Legislature of Illinois, appreciating the importance of the proper execution of those laws, and doubting whether the Governor could be punished for refusing to carry them into effect, deemed it prudent to impose it as a duty, the neglect of which would expose him to impeachment. If it intended more, the law is unconstitutional and void.-16 Peters Prigg vs. Pennsylvania.
In supporting the second point the Attorney General seemed to urge that there was greater sanctity in a warrant issued by the Governor, than by an inferior officer. The Court cannot assent to this distinction. This is a Government of laws, which prescribes a rule of action, as obligatory upon the Governor as upon the most obscure officer. The character and purposes of habeas corpus are greatly misunderstood by those who suppose that it does not review the acts of an Executive Functionary; all who are familiar with English history must know that it was extorted from an arbitary [arbitrary] monarch and that it was hailed as a second Magna Charta, and that it was to protect the subject from arbitrary imprisonment by the King and his minions, which brought into existence that great Palladium of liberty in the latter part of the reign of Charles the Second. It was indeed a magnificient [magnificent] achievement over arbitary [arbitrary] power. Magna Charta established the principles of liberty; the Habeas Corpus protected them. It matters not how great or obscure the prisoner, how great or obscure the prison-keeper, this munificent writ, wielded by an independent Judge, reaches all. It penetrates, alike the Royal Towers and the local prisons, from the garret to the secret recesses of the dungeon. All doors fly open at its command, and the shackles fall from the limbs of prisoners of State as readily as from those committed by subordinate officers. The warrant of the King and his Secretary of State could claim no more exemption from that searching enquiry [inquiry], "The cause of his caption and cotention [contention ?]," than a warrant granted by a justice of the peace. It is contended that the United States, is a government of granted powers, and that no Department of it can exercise powers not granted. This is true. But the grant is to be found in the 2d section of the 3d article of the Constitution of the United States.-"The Judicial power shall extend to all cases in law or equity, arising under this Constitution, the laws of the United States, and treaties made and which shall be made under their authority."
The matter under consideration presents a case arising under the 2d section, 4th article of the Constitution of the United States, and the act of Congress of February 12th, 1793, to carry it into effect . The Judiciary act of 1789 confers on this Court (indeed on all the Courts of the United States,) power to issue the writ of Habeas Corpus, when a person is confined "under the color of or by the authority of the United States." Smith is in custody under color of, and by authority of the 2d sec. 4th art. of the Constitution of the United States. As to the instrument employed or authorized to carry into effect that article of the Constitution (as he derives from it the authority to issue the warrant,) he must be regarded as acting by the authority of the United States. The power is not official in the Governor, but personal. It might have been granted to any one else by name, but considerations of convenience and policy recommended the selection of the Executive, who never dies. The citizens of the Sates are citizens of the U. States; hence the U. States are as much bound to afford them protection in their sphere, as the Sates are in their's [theirs].
This court has jurisdiction. Whether the State Courts have jurisdiction or not, this Court is not called upon to decide.
The return of the Sheriff shows that he has arrested and now holds in custody Joseph Smith, in virtue of a warrant issued by the Governor of Illinois, under the 2d section of the 4th article of the Constitution of the United States, relative to fugitives from justice, and the act of Congress passed to carry it into effect. The article of the Constitution does not designate the person upon whom the demand for the fugitive shall be made; nor does it prescribe the proof upon which he shall act. But Congress has done so. The proof is "an indictment or affidavit," to be certified by the Governor demanding. The return brings before the Court the warrant, the demand and the affidavit. The material part of the latter is in these words, viz:-"Lilburn W. Boggs, who 'being duly sworn, doth depose and say, that 'on the night of the sixth day of May, 1842, "while sitting in his dwelling in the town of 'Independence, in the county of Jackson, 'was shot with intent to kill, and that his life 'was despaired of for several days, and that he
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