| 626 by color of authority of the United States.-Act of Congress of September 24, 1789, section 4. 2d condensed 33.-3d Cranch 447. 3d Peters 193.
"2. The return to the habeas corpus is not certain and sufficient to warrant the arrest and transportation of Smith.
"In all cases on habeas corpus previous to indictment, the court will look into the depositions before the magistrate, and though the commitment be full and in form, yet if the testimony prove no crime, the court will discharge ex parte.-Taylor 5th, Cowen 50.
"The affidavit of Boggs does not show that Smith was charged with any crime committed by him in Missouri, nor that he was a fugitive from justice.
"If the commitment be for a matter for which by law the prisoner is not liable to be punished, the court must discharge him.-3. Bac. 434.
"The Executive of this State has no jurisdiction over the person of Smith to transport him 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 Revised Laws of Illinois 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. Lambourn, 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
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