The argument that because Governor Boggs 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 state are not held on quite so feeble a tenure, nor does the Constitution authorize the governor to transport the citizens of this state 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 which they "fled." There must have been a "flight" in _fact and in deed_ from the state where the offense was committed, or the governor has no jurisdiction to "deliver up." If the charge of having "fled" is made and the governor acting in _pais_ [A] is attempting to deliver up upon that charge, the person attempted to be made the victim has a clear, undoubted, constitutional right by means of a writ of habeas corpus, to test its truth before a judicial tribunal of the country; and, if the charge is proven to be false, the governor is ousted of his jurisdiction over the person of the prisoner and he is restored to his liberty before he has undergone the penalty of the transportation to a foreign country upon the mere charge of an interested or partial witness. [Footnote A: A judicial act outside of court and not recorded.--Century Dictionary.] The power of the executive of a state to surrender up a citizen to be transported to a foreign state for trial, is a most tremendous power, which might be greatly abused, were it not limited by constitutional checks, and the citizens secured against its despotic exercise by the writ of habeas corpus. In the case of Williams, the governor of New York, in his reply to the governor of Alabama, says, "What occurs daily in the ordinary course of criminal proceedings, may take place in regard to persons transported to a distant jurisdiction for trial. It may happen that an innocent man will be accused; and, if demanded, he must be delivered {177} up, should your exposition of the Constitution be sanctioned. Under these circumstances, his condition would be perilous indeed,--dragged from his home, far removed from friends, borne down by the weight of imputed guilt, and unable, probably, to obtain the evidence by which he might vindicate his innocence. If appearances were against him, he could scarcely hope to escape unmerited condemnation."