Thе 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 Statе of Arkansas was accompanied with a copy of an indictment found, or an
The portion of the section of the Constitution referred to is in these words : “A person charged in any State with treasоn, felony, or other crime, who “ shall flee from justice and be found in another State, shall, on demand of the “Executive authority of the State from which he fled, be delivered np to be “remоved to the State having jurisdiction of the crime.”
The act of February, 1793, to carry this provision into effect, providing that whenever the Executive authority of any State or Territory shall demаud any fugitive from justice of the Executive authority of any such State or Territory to which such pеrson shall have fled, and shall, moreover, produce the copy of an indictment found, or an affidavit made before a magistrate of any State or Territory as aforesaid, сharging the person so demanded with having committed treason, felony, or other crime, certified as authentic by the Governor or Chief Magistrate of the State or Territory from which the рerson charged fled, it shall''be the duty of the Executive of the State or Territory to which such рerson shall have fled to cause him or her to be arrested, &e. From this it is manifest that two of thе essential elements of the authority to issue the warrant were—
1st. A copy of the indictment fоund or affidavit made charging the alleged fugitive with having committed the crime.
2d. The certificate of the Executive of Arkansas, that such copy was authentic. That was the evidence and the only evidence on which the warrant was authorized to issue. But so far from it appeаring on the face of the warrant that such copy has been produced to the Exeсutive, and that the warrant had issued in consequence thereof, it appears on the сontrary 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 cаse. The representations of the Executive of the demanding State are of no effеct, unless supported by a duly-authenticated copy of the indictment found or affidavit made. These are prerequisite to the issue of the warrant, and without these it is void and gives no authоrity 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 affidаvit had been produced to the Executive. Such appears to be the usual form in the cases which have been submitted to our examination. (
Whether the indictment or affidavit should be fully sеt forth in the warrant is a point on which as yet we have not attained a definite conclusion. It might be very important in many cases to the liberty of the citizen that the tribunal before which he sues out his writ for discharge should have the opportunity of inspecting the indictment or affidavit, as these might be totally insufficient to sustain the charge. In the case cited from
We are of opinion that the prisoner is entitled to his discharge, and it is accordingly so ordered.
Ordered accordingly.