| 70 could have no agency in his conviction and punishment. But if he shall go into Missouri, he owes obedience to her laws, and is liable before her courts, to be tried and punished for any crime he may commit there, and a plea that he was a citizen of another State, would not avail him. If he escape, he may be surrendered to Missouri for trial. But when the offence [offense] is perpetrated in Illinois, the only right of Missouri, is, to insist that Illinois, compel her citizens to forbear to annoy her. This she has a right to expect:-for the neglect of it nations go to war and violate territory.
The court must hold that where a necessary fact is not stated in the affidavit, it does not exist. It is not averred that Smith was accessary [accessory] before the fact, in the State of Missouri, not that he committed a crime in Missouri: therefore he did not commit the crime in Missouri,-did not flee from Missouri to avoid punishment.
Again, the affidavit charges the shooting on the 6th of May in the County of Jackson and State of Missouri, 'that he believes and has 'good reason to believe, from evidence and 'information now (then) in his possession, that 'Joseph Smith was accessary [accessory] before the fact and 'is a resident or citizen of Illinois.' There are several objections to this. Mr. Boggs having the 'evidence and information in his possession, should have incorporated it in the affidavit to enable the Court to judge of their sufficiency to support his belief.' Again, he swears to a legal conclusion when he says that Smith was accessary [accessory] before the fact. What acts constitute a man an accessary [ accessory] in a question of law are not always of easy solution. Mr. Boggs' opinion then, is not authority. He should have given the facts. He should have shown that they were committed in Missouri, to enable the court to test them by the laws of Missouri, to see if they amounted to a crime. Again, the affidavit is fatally defective in this, that Boggs swears to his belief.
The language in the Constitution is 'charged with felony, or other crime.' Is the Constitution satisfied with a charge upon suspicion? It is to be regretted that no American adjudged case has been cited to guide the Court in expounding this article. Language is ever interpreted by the subject matter. If the object were to arrest a man near home, and there were fears of escape if the movement to detain him for examination were known, the word charged might warrant the issuing of a capias on suspicion. Rudyard (reported in Skin. 676) was committed to Newgate for refusing to give bail for his good behavior, and was brought before Common Pleas on Habeas Corpus. The return was that he had been complained of for exciting the subjects to disobedience of the laws against ceditious [seditious] conventicles, and upon examination they found cause to suspect him. Vauhan, Chief Justice 'Tyrrel and Archer against Wild held 'the return insufficient, 1st, because it did not 'appear but that he might abet frequenters of 'conventicles in the way the law allows. 2d 'To say that he was complained of or was 'examined is no proof of his guilt. And then to 'say that he had cause to suspect him is too 'cautious; for who can tell what they count a 'cause of suspicion, and how can that ever be 'tried. At this rate they would have arbitrary 'power upon their own allegation, to commit 'whom they pleased.'
From this case it appears that suspicion does not warrant a commitment, and that all legal intendment are to avail the prisoner. That the return is to be most strictly construed in favor of liberty. If suspicion in the foregoing case did not warrant a commitment in London by its officers, of a citizen of London, might not the objection be urged with greater force against a commitment of a citizen of our State to be transported to another on suspicion? No case can arise demanding a more searching scrutiny into the evidence, than in cases arising under this part of the constitution of the U. States. It is proposed to deprive a freeman of his liberty; to deliver him into the custody of strangers, to be transported to a foreign State, to be arraigned for trial before a foreign tribunal, governed by laws unknown to him; separated from his friends, his family and his witnesses, unknown and unknowing. Had he an immaculate character, it would not avail him with strangers. Such a spectacle is appaling [appalling] enough to challenge the strictest analysis.
The framers of the Constitution were not insensible of the importance of courts possessing the confidence of the parties. They therefore provided that citizens of different States, might resort to the federal courts in civil causes. How much more important that the criminal have confidence in his Judge and Jury? Therefore, before the capias is issued, the officers should see that the case is made out to warrant it.
Again, Boggs was shot on the 6th of May.-The affidavit was made on the 20th of July following. Here was time for enquiry [inquiry], which would confirm into certainty or dissipate his suspicions. He had time to collect facts to be had before a grand jury or be incorporated in his affidavit. The court is bound to assume that this would have been the course of Mr. Boggs, but that his suspicions were light and unsatisfactory.
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