History, 1838–1856, volume D-1 [1 August 1842–1 July 1843]

  • Source Note
  • Historical Introduction
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<​October 20​> 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 is a fugitive from that State, unless he has fled from that State to evade “justice” or in other words to evade being tried for the offence 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 Government of this has no power or jurisdiction over the person of a citizen of this 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 , and what is that power? It only 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 [HC 5:175] justice into this state” and is not such a person as the Constitution authorizes the Governor to deliver up, and that it would be an excess of jurisdiction on the part of the Governor to deliver him 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 or not at the time the crime was committed in ? If he was in this at that time, then he could not be a fugitive from Justice, from , in the sense of the Constitution, and the Governor would have no power to deliver him up. The argument that because 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 too absurd to require a serious answer.
The liberties of the citizens of this are not held on quite so feeble a tenure, nor does the Constitution authorize the Governor to transport the Citizens of this upon a mere “charge” made by a Citizen of another State; such is not the reading of the Constitution; that instrument only authorizes the delivery up of such persons “who shall flee”, upon the demand of the Executive authority of the State from [p. 1410]
October 20 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 is a fugitive from that State, unless he has fled from that State to evade “justice” or in other words to evade being tried for the offence 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 of this has no power or jurisdiction over the person of a citizen of this 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 , and what is that power? It only 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 [HC 5:175] justice into this state” and is not such a person as the Constitution authorizes the Governor to deliver up, and that it would be an excess of jurisdiction on the part of the Governor to deliver him 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 or not at the time the crime was committed in ? If he was in this at that time, then he could not be a fugitive from Justice, from , in the sense of the Constitution, and the Governor would have no power to deliver him up. The argument that because 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 too absurd to require a serious answer.
The liberties of the citizens of this are not held on quite so feeble a tenure, nor does the Constitution authorize the Governor to transport the Citizens of this upon a mere “charge” made by a Citizen of another State; such is not the reading of the Constitution; that instrument only authorizes the delivery up of such persons “who shall flee”, upon the demand of the Executive authority of the State from [p. 1410]
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