The matter under consideration presents a case arising under the 2nd section, 4th article of the Constitution of the United States; 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 United States,) power to issue the writ of habeas corpus, when a person is confined, "under color of, or by the authority of the United States." Smith is in custody under color of, and by authority of the 2nd section, 4th article of the Constitution of the United States. 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 United States. The power is not officially 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 United States; hence the United States are as much bound to afford them protection in their sphere as the states are in theirs. 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 Governor of Illinois, under the 2nd section of the 4th article of the Constitution of the United States, 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 affidavit. The material part of the latter is in these words, viz.-- "Lilburn W. Boggs, who being duly sworn, doth depose and say that on the night of the 6th day of May, 1842, while sitting in his dwelling, in the town of Independence, in the county of Jackson, 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, commonly called the "Mormon Prophet," was accessory before the fact of the intended {227} murder, and that the said Joseph Smith is a citizen or resident of the state of Illinois."