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 state has no power or jurisdiction over the person of a citizen of this state to arrest and cause him to be delivered up and transported to another state, except the power is expressly given to him by the Constitution of the United States. 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 the 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 and 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 {176} 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 state, or not, at the time the crime was committed in Missouri? If he was in this state at that time, then he could not be a fugitive from justice from Missouri, in the sense of the Constitution; and the governor would have no power to deliver him up.