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

  • Source Note
  • Historical Introduction
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<​January 4​> by the Attorney General of the State of , on the ground that it was not competent for Smith to impeach or contra[HC 5:220]dict the return to the Habeas Corpus. It was contended by my Counsel 1st. That I had a right to prove that the return was untrue. 2nd. That the said Affidavits did not contradict the said return, as there was no averment under oath in said return that I was in at the time of the commission of the alleged crime or had fled from the Justice of that . The Court decided that the said Affidavits should be read in evidence, subject to all objections; and they were read accordingly. all of which will appear on my discharge. Esqre. opened the defence in an animated speech, and made some very pathetic allusions to our sufferings in followed by , who made the following points.
1st. This Court has jurisdiction. The requisition purports on its face to be made, and the warrant to be issued, under the Constitution and laws of the , regulating the surrender of fugitives from justice— 2nd. sec. 4th. article Constitution of . 1st. sec. of the act of Congress of 12th. Feb. 1793. When a person’s rights are invaded under a law of the he has no remedy except in the Courts of the — 2nd. sec. 3rd. Article Constitution — 12th. Wendall 325–16 Peters 543. The whole power in relation to the delivering up of fugitives from justice and labor, has been delegated to the , and Congress have regulated the manner and form in which it shall be exercised. The power is exclusive. The State—— Legislatures have no right to interfere, and if they do, their acts are void. 2nd. and 3rd. clause of the 2d. sec: 4th. Article Constitution — 2nd. vol. laws 331.— 16 Peters 617–618, 623— 4th. Wheaton’s Reports 122. 193–12. Wendall 312. all courts of the are authorized to issue writs of Habeas Corpus when the prisoner is confined under or by color of authority of the — Act of Congress of Septr. 24th. 1789 sec 14. 2nd. condensed 33 3rd. Cranch 447. 3rd. 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— [HC 5:221] Taylor 5th. Cowen 50. The affidavit of does not show that Smith was charged with any crime committed by him in , 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. Bacon 434. The of this has no jurisdiction over the person of Smith to transport him to , unless he has fled from that . 3. The prisoner has a right to prove facts not repugnant to the return, and even to go to behind the return and contradict it, unless committed under a judgment of a court of competent jurisdiction— 3rd. Bacon 435, 438– 3d. Peters 202. Gale’s Revised laws of 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.
, Attorney General of the State of , in support of the points made by him, cited 2d. condensed Reports 37; Gordon’s Digest, 73; Gale’s Statutes of 318; Conkling 85; 9th. Wendall 212;.
——
In the course of his plea <​​> showed that had subscribed to a lie in his demand for me, as will appear on the paper, and said that “ would not [p. 1436]
January 4 by the Attorney General of the State of , on the ground that it was not competent for Smith to impeach or contra[HC 5:220]dict the return to the Habeas Corpus. It was contended by my Counsel 1st. That I had a right to prove that the return was untrue. 2nd. That the said Affidavits did not contradict the said return, as there was no averment under oath in said return that I was in at the time of the commission of the alleged crime or had fled from the Justice of that . The Court decided that the said Affidavits should be read in evidence, subject to all objections; and they were read accordingly. all of which will appear on my discharge. Esqre. opened the defence in an animated speech, and made some very pathetic allusions to our sufferings in followed by , who made the following points.
1st. This Court has jurisdiction. The requisition purports on its face to be made, and the warrant to be issued, under the Constitution and laws of the , regulating the surrender of fugitives from justice— 2nd. sec. 4th. article Constitution of . 1st. sec. of the act of Congress of 12th. Feb. 1793. When a person’s rights are invaded under a law of the he has no remedy except in the Courts of the — 2nd. sec. 3rd. Article Constitution — 12th. Wendall 325–16 Peters 543. The whole power in relation to the delivering up of fugitives from justice and labor, has been delegated to the , and Congress have regulated the manner and form in which it shall be exercised. The power is exclusive. The State—— Legislatures have no right to interfere, and if they do, their acts are void. 2nd. and 3rd. clause of the 2d. sec: 4th. Article Constitution — 2nd. vol. laws 331.— 16 Peters 617–618, 623— 4th. Wheaton’s Reports 122. 193–12. Wendall 312. all courts of the are authorized to issue writs of Habeas Corpus when the prisoner is confined under or by color of authority of the — Act of Congress of Septr. 24th. 1789 sec 14. 2nd. condensed 33 3rd. Cranch 447. 3rd. 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— [HC 5:221] Taylor 5th. Cowen 50. The affidavit of does not show that Smith was charged with any crime committed by him in , 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. Bacon 434. The of this has no jurisdiction over the person of Smith to transport him to , unless he has fled from that . 3. The prisoner has a right to prove facts not repugnant to the return, and even to go to behind the return and contradict it, unless committed under a judgment of a court of competent jurisdiction— 3rd. Bacon 435, 438– 3d. Peters 202. Gale’s Revised laws of 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.
, Attorney General of the State of , in support of the points made by him, cited 2d. condensed Reports 37; Gordon’s Digest, 73; Gale’s Statutes of 318; Conkling 85; 9th. Wendall 212;.
——
In the course of his plea showed that had subscribed to a lie in his demand for me, as will appear on the paper, and said that “ would not [p. 1436]
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