| 34 is not subject to be delivered up,-under the express provisions of our own Habeas Corpus Act, he has a right to show that the affidavit is false and that the order for his arrest was obtained by false pretenses. Again, the affidavit on its face was not sufficient to authorise [authorize] the arrest of Smith, it is evasive and deceptive-it does not show that he fled from the State of Missouri to evade justice for the commission of the crime of which he is charged by Gov. Boggs.
Robert G. Williams, in the year 1835, was indicted in the State of Alabama for attempting to incite rebellion and insurrection in that State; he was demanded by the Gov. of that State, of the Gov. of New York and the requisition stated that he had FLED FROM JUSTICE-the Governor of the State of New York (Marcy) took notice that the said Williams was a citizen of the State of New York, and had not fled from justice from Alabama, and on THAT GROUND ALONE refused to surrender him up. This was a stronger case than that of Smith's, as an INDICTMENT HAD BEEN FOUND. Gov. Marcy puts his refusal upon the express ground that by the Constitution of the United States the Governor of one State had no right to demand, nor the Governor of another State a right to surrender up one of his citizens unless had fled from justice; and it was the right and the duty of the Governor upon whom the demand was made to inquire into the fact whether he had fled from justice before he made the surrender. I have the book containing all the proceedings in this case of Williams: there are several other cases equally in point, and they all proceed upon the ground that the Governor of a State has no jurisdiction over the body of a citizen to arrest and surrender him up to a foreign State unless he has fled from that State to evade justice,' or in other words to evade being tried for the offence [offense] with which he is charged. In a despotic form of Government the sovereign power is the will of the Monarch who can act in every instance as may suit his pleasure; but can the Governor of one of our States, of his own mere will, without any authority from the Constitution, or the Legislative power of the State, arrest and deliver up to a foreign Government any person whatever If he can do this, then is the liberty of the citizen wholly at his disposal.
The writ of Habeas Corpus is a suit which every person imprisoned or unlawfully detained has a right to prosecute for the recovery of his liberty, and if he is in custody by process from a competent power he is entitled to his discharge when the jurisdiction has been executed.
The Governor of this State has the power or jurisdiction over the person of a citizen of this State to arrest and cause him to be delivered up and transported to another State, except the power expressly given to him by the Constitution of the United States, and what is that power? it only authorises [authorizes] the Governor of one State to surrender up a fugitive from justice to return him back to the State from whence he has fled. First, The person to be surrendered up must be a fugitive from the State to which it is attempted to surrender him. Second, He must be a fugitive from justice; in other words he must have been in the State when and where the crime was committed and have fled from that State to evade being apprehended and tried for that crime. Third, Unless he is in fact such a fugitive from justice, the Governor has no power, by the laws or Constitution, to deliver him up. Fourth, If he is charged with being a fugitive from justice and the Governor cause him to be apprehended on that charge; he has a right to sue out a Habeas Corpus and when brought up on that writ he has the undoubted right of showing that the Governor has no Constitutional power to deliver him up to another State; that he has not 'fled from justice into this State,' and is not such a person as the constitution authorises [authorizes] the Governor to deliver up. The question to be examined into upon the return of the Habeas Corpus would be a mere question of locality, the question would be, was Smith in this State or not at the time the crime was committed in Missouri? If he was in this State at that time, then he could not be a fugitive from justice, from Missouri, in the sense of the constitution, and the Governor would have no power to deliver him up.
The argument that because Gov. Boggs has made affidavit that Smith has fled from justice, his affidavit is to be taken as conclusive on that point, and that upon the return of a Habeas Corpus, Smith would be precluded from controverting or showing the falsity of that affidavit, is to absurd to require a serious answer.
The liberties of the citizens of this State are not held on quite so feeble a tenure, nor does the Constitution authorise [authorize] the governor to transport the citizens of this State upon a mere 'charge' made by a citizen of another State; such is not the reading of the Constitution; that instrument only authorises [authorizes] the delivery up of such persons 'who shall flee' upon the demand of the Executive authority of the State from which they 'fled'-here must have been a 'flight' in fact and indeed from the State where
(page 34) |
