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

  • Source Note
  • Historical Introduction
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that great palladium of liberty in the latter part of the reign of Charles the Second. It was indeed a magnificent achievement over arbitary power. Magna Charta established the principles of liberty; the Habeas Corpus protected them. It matters not how great or obscure the prisoner, how great or obscure the prison-keeper, this munificent writ, wielded by an independent Judge, reaches all. It penetrates, alike the Royal Towers and the local prisons, from the garret to the secret recesses of the dungeon. All doors fly open at its command, and the shackles fall from the limbs of prisoners of State as readily as from those committed by subordinate officers. The warrant of the King, and his Secretary of State could claim no more exemption from that searching enquiry, “The cause of his caption and detention”, than a warrant [HC 5:225] granted by a Justice of the peace. It is contended that the , is a government of granted powers, and that no Department of it can exercise powers not granted. This is true. But the grant is to be found in the 2d section of the 3rd. article of the Constitution of the .
“The Judicial power shall extend to all cases in law or equity, arising under this Constitution the laws of the , and treaties made and which shall be made under this their Authority.” The matter under consideration presents a case arising under the 2nd. Section, 4th. article of the Constitution of the , and the act of Congress of February 12th. 1793. to carry it into effect. The Judiciary act of 1789 confers on this Court (indeed on all the Courts of the ,) power to issue the writ of Habeas Corpus, when a person is confined “under Color of or by the authority of the ! Smith is in custody under color of and by [blank] Authority of the 2nd. Section, 4th. article, of the— Constitution of the . As to the instrument employed or authorized to carry into effect that article of the Constitution (as he derives from it the Authority to issue the warrant,) he must be regarded as acting by the authority of <the> . The Power is not official in the Governor, but personal. It might have been granted to any one else by name, but considerations of convenience and policy recommended the selection of the Executive, who never dies. The Citizens of the States are citizens of the ; hence the are as much bound to afford them protection in their sphere, as the States are in in their’s. This Court has jurisdiction. Whether the State Courts have jurisdiction or not, this Court is not called upon to— decide. The return of the Sheriff shows that he has arrested and now holds in custody Joseph Smith, in virtue of a warrant issued by the of , under the 2nd. Section of the 4th. article of the Constitution of the , relative to fugitives from justice, and the act of Congress passed to carry it into effect. The article of the Constitution does not designate the person upon whom the demand for the fugitive shall be made; nor does it prescribe the proof upon which he shall act. But Congress has done so. The proof is “an— indictment or affidavit,” to be certified by the Governor demanding. The return brings before the Court the warrant, the demand and the Affidavit. The—— material part of the latter is in these words, viz:— “, who being duly sworn, doth depose and say, that on the night of the Sixth day of May, 1842, while sitting in his dwelling in the Town of , in the County of , he was shot with intent to kill, and that his life was despaired of for several days, and that he believes and has good reason to believe from evidence and information now in his possession, that Joseph Smith—— [p. 1439]
that great palladium of liberty in the latter part of the reign of Charles the Second. It was indeed a magnificent achievement over arbitary power. Magna Charta established the principles of liberty; the Habeas Corpus protected them. It matters not how great or obscure the prisoner, how great or obscure the prison-keeper, this munificent writ, wielded by an independent Judge, reaches all. It penetrates, alike the Royal Towers and the local prisons, from the garret to the secret recesses of the dungeon. All doors fly open at its command, and the shackles fall from the limbs of prisoners of State as readily as from those committed by subordinate officers. The warrant of the King, and his Secretary of State could claim no more exemption from that searching enquiry, “The cause of his caption and detention”, than a warrant [HC 5:225] granted by a Justice of the peace. It is contended that the , is a government of granted powers, and that no Department of it can exercise powers not granted. This is true. But the grant is to be found in the 2d section of the 3rd. article of the Constitution of the .
“The Judicial power shall extend to all cases in law or equity, arising under this Constitution the laws of the , and treaties made and which shall be made under their Authority.” The matter under consideration presents a case arising under the 2nd. Section, 4th. article of the Constitution of the , and the act of Congress of February 12th. 1793. to carry it into effect. The Judiciary act of 1789 confers on this Court (indeed on all the Courts of the ,) power to issue the writ of Habeas Corpus, when a person is confined “under Color of or by the authority of the ! Smith is in custody under color of and by [blank] Authority of the 2nd. Section, 4th. article, of the— Constitution of the . As to the instrument employed or authorized to carry into effect that article of the Constitution (as he derives from it the Authority to issue the warrant,) he must be regarded as acting by the authority of the . The Power is not official in the Governor, but personal. It might have been granted to any one else by name, but considerations of convenience and policy recommended the selection of the Executive, who never dies. The Citizens of the States are citizens of the ; hence the are as much bound to afford them protection in their sphere, as the States are in in their’s. This Court has jurisdiction. Whether the State Courts have jurisdiction or not, this Court is not called upon to— decide. The return of the Sheriff shows that he has arrested and now holds in custody Joseph Smith, in virtue of a warrant issued by the of , under the 2nd. Section of the 4th. article of the Constitution of the , relative to fugitives from justice, and the act of Congress passed to carry it into effect. The article of the Constitution does not designate the person upon whom the demand for the fugitive shall be made; nor does it prescribe the proof upon which he shall act. But Congress has done so. The proof is “an— indictment or affidavit,” to be certified by the Governor demanding. The return brings before the Court the warrant, the demand and the Affidavit. The—— material part of the latter is in these words, viz:— “, who being duly sworn, doth depose and say, that on the night of the Sixth day of May, 1842, while sitting in his dwelling in the Town of , in the County of , he was shot with intent to kill, and that his life was despaired of for several days, and that he believes and has good reason to believe from evidence and information now in his possession, that Joseph Smith—— [p. 1439]
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