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three-hundred miles distant from Jackson county, in the State of Missouri, and that he had not been in the State of Missouri at any time between the 10th February, and 1st July, 1842, the said persons having been with him during the whole of that time.

The reading of these affidavits was objected to by the Attorney-General of the state, on the ground that it was not competent for Smith to impeach or contradict the return to the habeas corpus. It was contended by the counsel for Smith: 1st. That he had a right to prove that the return was untrue. 2d. That the affidavits did not contradict the return, &c.

The court heard the affidavits subject to objections. The court held that the statute of the State of Illinois, making it the duty of the governor to issue his warrant, in case of a requisition did not enlarge or alter the power which was vested in him by the Constitution and laws of the United States, and that the warrant did issue under and by authority of the United States. Upon this point the court say:

"If the legislature of Illinois, 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."

The court did not decide upon the admissibility of the affidavits offered by Smith, inasmuch as it held

that he was entitled to his discharge for defect in the affidavit.

"The affidavit is insufficient, said the court; 1st, because it is not positive; 2d, because it charges no crime; 3d, it charges no crime committed in the State of Missouri. Therefore he did not flee from the justice of Missouri.

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"Boggs swears to his belief. Having the evidence and information in his possession,' he 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 accessory before the fact.' What constitutes a man accessory is a question of law, and not always of easy solution. He should have given the facts and sworn 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. The affidavit is fatally defective in this, that Boggs swears to his belief. The language of the Constitution is, charged with felony or other crime.' Is the Constitution satisfied with a charge upon suspicion? Suspicion does not warrant a commitment, and all legal intendments are to avail the prisoner. The return is to be strictly construed in favor of liberty.

"The proceedings in this affair, from the affidavit to the arrest, afford a lesson to governors and judges, whose action may hereafter be invoked in cases of this character. The affidavit simply says that the affiant was shot with intent to kill, and he believes that Smith was accessory before the fact to the intended murder, and is a citizen or resident of the state of Illinois. It is not said who shot him, or that the person is unknown.

"The governor of Missouri, in his demand, calls Smith a fugitive from justice, charged with being accessory before the fact to an assault with intent to kill, made by one 0. P. Rockwell on Lilburn W. Boggs in this state, (Missouri). The governor expressly refers to the affidavit as his autho

rity for that statement. Boggs, in his affidavit does not call Smith a fugitive from justice, nor does he state a fact from which the governor has a right to infer it. Neither does the name of O. P. Rockwell appear in the affidavit, nor does Boggs say Smith fled. Yet the governor says he fled to the State of Illinois. Boggs only says he is a citizen or resident of Illinois.

"The warrant of the governor of Illinois recites facts. which do not appear in the affidavit.

"The court can only regard the facts set forth in the affidavit of Boggs as having any legal existence.

"The misrecitals and over statements in the requisition and warrant, are not supported by oath, and cannot be received as evidence to deprive a citizen of his liberty, and transport him to a foreign state for trial. For these reasons Smith must be discharged."

In Ex parte Thornton, 9 Texas, 635, the relator was in custody under the following warrant:

"State of Texas:

"To all and singular, the sheriffs, constables and other civil officers of the said state, GREETING:

Whereas, It has been represented and made known to me by his excellency, Elias N. Conway, Governor of the State of Arkansas, that Abner E. Thornton, late of the county of Pulaski in said State of Arkansas, stands charged therein with the crime of forgery; and that the said Abner E. Thornton has fled from justice in said state and taken refuge in the State of Texas; and whereas the said Elias N. Conway, Governor of said State of Arkansas, has in pursuance of the Constitution and laws of the United States demanded of the executive of this state, the surrender of the said Abner E. Thornton, and that he be delivered to Benjamin F. Danley, who is duly authorized to receive him:

"Now therefore know ye, that I, P. Hansborough Bell, Governor of the State of Texas, do, by virtue of the power

and authority in me vested by the Constitution and laws of the United States, issue this my warrant, commanding all sheriffs, constables and other civil officers of said state, to arrest and to aid and assist in arresting the said Abner E. Thornton, and to deliver him, when arrested, to the said Benjamin F. Danley, agent of said State of Arkansas, in order that he may be taken back to said state to be dealt with according to law.

"In testimony, &c.

HEMPHILL, Ch. J. "The relator insists on his discharge on the ground of the insufficiency and illegality of the warrant in this, that it does not show by recital that the representation and demand of the Governor of the State of Arkansas was accompanied with a copy of an indictment found or an affidavit made before some magistrate of the State of Arkansas, certified by the said executive as being duly authenticated and charging the relator with having committed the crime of forgery within said state. And we are of the opinion that on the ground set forth he is entitled to his discharge.

"By the act of Feb. 1793, it is essential that there should be:

"1st. A copy of the indictment found, or affidavit made charging the alleged fugitive with having committed the crime.

"2d. The certificate of the executive of, &c., that such copy was authentic.

"This was the evidence and the only evidence on which the warrant was authorized to issue. But so far from it appearing on the face of the warrant that such copy has been produced to the executive, and that the warrant had issued in consequence thereof, it appears on the contrary that the executive acted on the representations of the executive of the state of Arkansas, to the effect that the relator stood charged with the crime of forgery in that state. These were altogether insufficient to give the governor

jurisdiction in the case. The representations of the executive of the demanding state are of no effect unless supported by a duly authenticated copy of the indictment found, or affidavit made. These are prerequisites to the issue of the warrant; and without these it is void and gives no authority to arrest or detain the person alleged to be charged. We are of opinion that the warrant should show on its face that such authentic copy of the indictment or affidavit had been produced to the executive."

Before the prisoner was discharged the court was moved to detain him until another warrant could be procured, which motion was supported by the affidavit of the sheriff from Arkansas, who was appointed in the requisition, agent, &c., that he had seen the indictment, that he knew a copy had been presented to the Governor of Texas with the requisition, &c.

But the court said they had no power to detain him.

In Missouri it has been held that the governor's warrant should be under the seal of the state and a warrant upon which an impression of the seal of the state was not discoverable was held void and the prisoner discharged. Vallad v. Sheriff, &c., 2 Mis., 26.

SECTION VIII.

STATE LEGISLATION.

It does not appear that the constitutionality of the act of Congress of 1793, in relation to the apprehension and surrender of fugitives from justice has ever been contested, or that the executives of the

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