| 69 'believes and has good reason to believe from 'evidence and information now in his possession, that Joseph Smith, commonly called the 'Mormon Prophet, was accessary [accessory] before the 'fact of the intended murder, and that the said 'Joseph Smith is a citizen or resident of the 'State of Illinois." This affidavit is certified by the Governor of Missouri to be authentic. The affidavit being thus verified, furnished the only evidence upon which the Governor of Illinois could act. Smith presented affidavits proving that he was not in Missouri at the date of the shooting of Boggs. This testimony was objected to by the Attorney General of Illinois, on the ground that the Court could not look behind the return. The court deems it unnecessary to decide that point, inasmuch as it thinks Smith entitled to his discharge for defect in the affidavit. To authorise [authorize] the arrest in this case the affidavit should have stated distinctly, 1st That Smith had committed a crime. 2d, That he committed it in Missouri.
It must appear that he fled from Missouri to authorize the Governor of Missouri to demand him, as none other than the Governor of the State from which he fled can make the demand. He could not have fled from justice, unless he committed a crime, which does not appear. It must appear that the crime was committed in Missouri to warrant the Governor of Illinois in ordering him to be sent to Missouri for trial. The 2d section, 4th article, declares he 'shall be removed to the State having jurisdiction of the crime.'
As it is not charged that the crime was committed by Smith in Missouri, the Governor of Illinois could not cause him to be removed to that State, unless it can be maintained that the State of Missouri can entertain jurisdiction of crimes committed in other States. The affirmative of this proposition was taken in the argument with a zeal indicating sincerity. But no adjudged case or dictum was adduced in support of it. The Court conceives that none can be. Let it be tested by principle.
Man in a state of nature is a sovereign, with all the prerogatives of King, Lords and Commons. He may declare war and make peace, and as nations often do who "feel power and forget right,"-may oppress, rob and subjugate his weaker and unoffending neighbors. He unites in his person the legislative, judicial and executive power-"can do no wrong," because there is none to hold him to account. But when he unites himself with a community, he lays down all the prerogatives of sovereign (except self-defence [defense],) and becomes a subject . He owes obedience to its laws and the judgments of its tribunals, which he is supposed to have participated in establishing, either directly or indirectly. He surrenders also, the right of self-redress. In consideration of all which, he is entitled to the ægis of that community to defend him from wrongs. He takes upon himself no allegiance to any other community, so owes it no obedience, and therefore cannot disobey it. None other than his own sovereign can prescribe a rule of action to him. Each sovereign regulates the conduct of its subjects, and they may be punished upon the assumption that they know the rule and have consented to be governed by it. It would be a gross violation of the social compact, if the State were to deliver up one of its citizens to be tried and punished by a foreign State, to which he owes no allegiance, and whose laws were never binding on him. No State can or will do it.
In the absence of the constitutional provision, the State of Missouri wonld [would] stand on this subject in the same relation to the State of Illinois, that Spain does to England. In this particular the States are independent of each other. A criminal fugitive from the one State to the other, could not be claimed as of right to be given up. It is most true as mentioned by writers on the laws of nations that every State is responsible to its neighbors for the conduct of its citizens so far as their conduct violates the principles of good neighborhood. So it is among private individuals. But for this, the inviolability of territory, or private dwelling, could not be maintained. This obligation creates the right, and makes it the duty of the State to impose such restraints upon the citizen as the occasion demands. It was in the performance of this duty, that the United States passed laws to restrain citizens of the United States from setting on foot and fitting out military expeditions against their neighbors. While the violators of this law kept themselves within the United States, their conduct was cognizable in the courts of the United States, and not of the offended State, even if the means provided had assisted in the invasion of the foreign State. A demand by the injured State upon the United States for the offenders, whose operations were in their own country, would be answered, that the United States' laws alone could act upon them, and that as a good neighbor it would punish them.
It is the duty of the State of Illinois, to make it criminal in one of its citizens to aid, abet, counsel, or advise, any person to commit a crime in her sister State,-any one violating the law would be amenable to the laws of Illinois, executed by its own tribunals. Those of Missouri,
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