
    Ex parte Thornton.
    A warrant issued by the Governor of this State for the apprehension of a fugitive from justice from another State should show on its face, by recital at least, that it was issued upon a requisition from such other State, accompanied by an indictment found or affidavit made, charging tho alleged fugitive with having committed the crime. Quere? Whether the indictment or affidavit should not bo fully set forth in the warrant, so as to enable the court, on habeas corpus, to determine whether it is sufficient or not.
    where, on habeas corpus, the warrant for the arrest of an alleged fugitive from justice from another State is found to be defective, this court has no power to detain the prisoner in order that another warrant may bo obtained.
    
      Habeas corpus. This was an application to “one of the justices of the Su“premo Court, sitting in the city of Galveston,” for a habeas corpus; the writ was made returnable “before the judges of our said Supreme Court, now in “session, forthwith.” The return was that the relator was detained by virtue of the following writ:
    State op Texas.
    To all and singular the sheriffs, constables, and other civil officers of said State, greeting:
    Whereas it lias been represented and made known to me by his Excellency Elias N. Conway, Governor of the State of Arkansas, that Abner E. Thornton, late of the county of Pulaski, in said State of Arkansas, stands charged therein with the crime of forgery, and that the said Abner E. Thornton has fled from justice in said State, and taken refuge in the State of Texas;
    And whereas the said Elias 1ST. Conway, Governor of said State of Arkansas, has, in pursuance of the Constitution and laws of the United States, demanded of the Executive of this State the surrender of said Abner E. Thornton, and that he be delivered to Benjamin P. Danley, who is duly authorized to receive him:
    Now, therefore, know ye that I, P. Hansborough Bell, Governor of the State of Texas, do, by virtue of the power and authority in me vested by the Constitution and laws of said State, and in obedience to the Constitution and laws of the United States, issue this my warrant, commanding all sheriffs, constables, and other civil officers of said State to arrest and to aid and assist in arresting the said Abner E. Thornton, and to deliver him, when arrested, to the said Benjamin E. Danley, agent of said State of Arkansas, in order that he may be taken back to said State, to be dealt with according to law. In testimony, &c., (signed and sealed with the great seal of the State.)
    Before tiie prisoner was discharged (same day) a motion was made to detain him for a reasonable time, to be fixed by the court, in order that the Governor of Texas might issue a regular and legal warrant for his arrest, &c. In support of the motion the following affidavit was filed:
    Benjamin F. Danley, being duly sworn, says that at the time this affiant, as the agent of the State of Arkansas, presented and delivered to P. Hansborough Bell, Governor of the State of Texas, the requisition and demand from the Governor of the State of Arkansas for Abner E. Thornton, he also presented and delivered to said Governor of the State of Texas a copy of an indictment found by the grand jury of the county of Pulaski, in said State of Arkansas, at the December Term of the Circuit Court of said county, in the year 1819 or 1850; that said copy of said indictment was duly certified by the Governor of the State of Arkansas as authentic.; that said copy, so certified, together with the demand or requisition, was left by affiant, and now remains, as he believes, in the possession of tho Governor of Texas, or in the office of the Secretary of State at Austin. Affiant further says that he (affiant) was sheriff of said county of Pulaski at tho time said indictment was so found by said grand jury, and has seen it since it was so found and returned by said grand jury into said court. Affiant further says that the person now under arrest is the same person against whom said indictment was found; that said indictment is still pending in said Circuit Court oí said Pulaski county, in which said county the forgery charged in said indictment was committed.
    
      B. Hughes, for relator.
    I. To give jurisdiction to the Governor, three things are requisite : 1st, A demand by the Executive of the State from where the fugitive lias fled; 2d, A copji of the indictment found, or an affidavit made before a magistrate, charging the fugilivo with llic crime; 3d, Such copy of indictment or affidavit must be certified as authentic by the Executive. If the prerequisites are complied with, the warrant is legal, and not otherwise; and to ascertain them, the return to the habeas corpus is to be examined.
    1. We admit that the return shows that the relator has been demanded by the Execuiivo of Arkansas.
    2. But the return does not recite that a copy of the indictment or affidavit charging the relator was produced, certified as authentic by the Governor, and consequently the rule prescribed by the Constitution and act of Congress has not been complied with. It is clear that the power of the Governor to act upon a requisition from another State is a special authority, and must be strictly pursued. The facts which will give'the authority must not only exist, hut the warrant must show them to exist. (Bracy’s Case, 1 Salkeld, 348; 1 Ld. Baym., 99 ; Matter of John L. Clark, 9 Wend, É., 212.)
    We have not the demand or the indictment or affidavit; but the warrant being brought before the court, does it show that the relator is charged ? We have the recital of Governor Bell that it has been represented and made known to him that the relator stands charged. The act of Congress requires of the Executive making the demand to furnish evidence of the charge; not to make the charge, and on that to make the demand. The Executive here is not only to see that a charge has been made, as required by the act of Congress, but he is to show that the evidence has been furnished him, and this evidence is to be of such character as to satisfy the mind that the party has been charged in the State whence he fled with the crime for which it is sought to apprehend him. (Exparte Smith, Law Hep., 57.)
    Instead of these facts appearing, we have the information of the Executive here that it has been made known to him by Governor Conway that the relator stands charged, when he should have said “that a demand having been made, “and it appearing by the copy of an indictment or affidavit properly authenticated by the Governor of Arkansas that he there stands charged.”
    In the Smith case the warrant of itself, perhaps, might have been good, but it having been accompanied in the return by the affidavit, the affidavit was examined and was said to be insufficient, because it did not show the commission of an offense by Smith in the State of Missouri. So here, upon the return, which embraces the warrant, there being no evidence, as required by the act of Congress, that the relator had been, charged with a crime in the State whence he is said tp have fled, the Executive has shown no authority to act in the premises, and the warrant is void and the relator ought to be discharged. We do not insist that the warrant should state that the party has committed an offense, for with this the authorities here have nothing to do, but it must state that he was charged and the manner in which the Executive was informed of the charge. (Exparte Clark, 9 Wend. It., 222.) The Governor is a ministerial officer, (Western Law Journal, 525,) and he should comply with his authority by showing a charge expressly made of some offense. (Law Reporter, 31S.)
    II. But it may be thought that it is competent for this court to hold the relator in custody until it can be ascertained whether the Governor has the proper information. To this we say—
    1. It must be presumed that the Governor, who is the highest executive officer in the State, recited all the information he has. He says it “has been represented and made known to him” by Governor Conway. He must have had the documents before him; and if the requisite fact was otherwise ■made known, it would have been so stated; and not being so stated, this court •must presume that he had it not. But this is not all.
    2. This Slate, except for tlie purposes embraced in the Federal Constitution, is as much a State foreign to Arkansas as is, Mexico or any other foreign ’State. (Buckner v. Finley ei al., 2 Peters, 5S6.) And as a consequence but for the article referred to in the Constitution of the United States, and the act of Congress of 1793 referred to, it would not only not be the duty of (lie several States to attempt tlie surrender of fugitives from justice,’but they would have no power. (Holmes ex parte, 12 Verm., G31; Case of Jose Ferreira dos Santos, 2 Brock., 493; in matter of Short, 10 S. & R., 125; Holmes v. Jennison, 14 Peters, 540; contra matter of Washbourn ex parte, 4 Johns. Ch. R., 106.)
    But the Constitution and act of Congress having provided for the surrender ■of fugitives, they are to be surrendered as required. Blit how is this to-be done ? By the Executive. To him the power only is given. This court can have no such power, because it is only by virtue of the municipal law of tlie State that tiiis or any other of*the State courts can act, and iu (hat respect the States are foreign to each other. .(Warder v. Abell, 2 Wash. Va. R., 359, 380.) And it being a universal principle that the courts in one State or nation have ■no authority to enforce the criminal laws of another, it must follow that they have not power to arrest for offenses committed against the laws of another State. (Case of Jose Ferreira dos Santos, 2 Brock., 574.)
    What power on tiiis subject Is given by law to this court? As to offenses ■committed against the laws of tlie State the court may examine tlie evidence, though the warrant is quashed ; and if an offense is committed, remand the prisoner. But, for the reason given by Mr. Justice Barbour, iu sueli a case as tiiis, the Executive only is authorized to act, and upon a ministerial authority.
    But suppose the court should say they would detain tlie prisoner in custody until the Governor is heard from,' what will be done with him in the ■meantime ? Have this court any power to commit, or have they power to bail ? We can And no authority to this effect, but we have shown the law to be otherwise. Could the prisoner be arrested upon an affidavit without tlie intervention of tlie Executive ? We think we have shown he could not. And if he ■could not, where is tlie power found to detain? •
    But there is another view. It lias been repeatedly decided that the courts of the States cannot act upon the criminal law of the United States; and in order that officers of the States might have power to commit, an act of Congress was necessary.
    The courts upon this subject cannot act. The distinction is to be noted between cases where the prisoner is brought up on habeas corpus, in cases where the court may act as a committing court, and where they cannot. ■ (Bracy’s case, 1 Salk., 248; Yoxby’s case, 1 Salk., 351.)
    
      Jones Sr Ballinger, for respondent.
    I. As the only ground alleged is that ■tlie warrant is not in compliance with the law, the court will look into the Constitution and act of Congress which regulate the proceeding. The language ■employed is the simplest that can be conceived to express the mere executive duty of the Governor. The Constitution says, the fugitive “shall be delivered up.” The act of Congress, that “ the Governor shall cause him to be arrested and secured.” It does not provide that the Governor shall issue a warrant. This was a well-known common-law term, but is not employed. It uses no term to signify any form of process know to tlie law. It does not declare nor does it fairly imply that he shall issue auy precept setting forth the facts and evidence which have been presented to him, but simply requires the mere executive duty of causing his arrest. Erom the entire silence of the Constitution and .law as to the mode by which he shall cause the arrest, it seems evident that the manner of this was left to Executive discretion. He could have caused the. arrest by proclamation, and auy citizen would have been justified in acting under it. (Eanes v. The State, (5 Humph. 11., 53; 1 U. S. An. Rig., Title Arbest. Pars. IS, 19.) So any citizen could have made the arrest, at his peril, without special order or warrant, and on showing that there was good cause - for arrest it would have been legal.
    It is believed, then, to be the letter and spirit of the law that any order or process from the Governor signifying the Executive will and authenticated as his act by the great seal of the State is valid and effectual for causing (he arrest, and that no other form, recitals, or technical requirements of a process are necessary.
    It is not contended that the act of the Governor, in causing the arrest and surrendering an accused person on demand from another State, is not as open to judicial inquiry as would bo the act of auy magistrate of the State in causing an arrest for a supposed offense. The jurisdiction of the court to inquire into the legality of the arrest and of the acts of the Executive in tills matter is fully admitted. It is true this court cannot inquire into the question of guilt or innocence of the crime charged; hut it can inquire into any and every fact necessary to give jurisdiction or authority to the Governor to cause the arrest.
    Thus, if it had been denied that he was a fugitive from justice, and therefore not within the provision of the Constitution, as in the ease of Jo. Smith, the Mormon prophet, in 3 McLean; or if it had been denied that lie “stands “ charged ” with crime in the State of Arkansas, or that the evidence of that fact, reqired by law, had been produced to the Governor, who had therefore acted without authority — if any of these grounds liad been alleged by the prisoner, there can he no doubt they would have been proper facts for judicial inquiry.
    But nothing of this sort has been done. The petitioner himself shows that he is under arrest as a fugitive from justice from the State of Arkansas, and that his arrest has been caused by the Governor of Texas. All that he alleges is that the warrant is not in legal form. When he shows, however, that the Governor has caused his arrest, it is all the Governor was required to do, as it has been proved that no specific or technical form of process is necessary for that purpose. He must attack the authority of the Governor to cause his'arrest, that executive act being ail that was required of the Governor, and not, whilst admitting that he is under arrest, raise an issue upon supposed technical requirements of the process.
    It was usual to apply for a certiorari to cause the proceedings under which a party was committed to he sent for inspection to the judge or court trying the habeas corpus. (1 Oiiitt. Crim. L., 118, 119.) And the party in this case, if he had sought to deny the authority of the Governor or that he came within the provisions of the act of Congress, should “by affidavit or other evidence ” have shown “probable canse” for tlie belief, and he could have obtained the evidence oil which the Governor acted for the inspection and decision of the court. On the contrary, without alleging or proving any want of authority in the Governor to cause his arrest the petitioner in this case asks the court to presume that the Governor has acted without authority. This would be entirely to reverse the rule of presumption applicable to public officers. Ño principal can he better established than that the law presumes the act of the officer to be correct unless the contrary is shown.
    H. But, in the next place, it is contended that the warrant of the Governor is good as a common-law warrant.
    At common law it was not necessary to “ set out the charge, or offense, or evidence ” in the warrant, and in many cases it was considered imprudent to do so. (1 Cbitt. Crim. L., 41.) At most it was only advisable to state the particular species of crime, without showing the particular facts of the charge or the evidence on which it was founded. (1 Chitt. Crim. L., 42.) So of a commitment. It was only “ necessary to set forth the particular species of “crime alleged against the party,” hnt it was not necessary to state any part of the evidence adduced before the magistrate, or to show the grounds on which he had thought fit to commie the defendant. (1 Chitt. Grim. L., 110, 111.) The warrant'in this case shows that the Governor of Arkansas has demanded the accused as a fugitive from justice from that State, charged with the crime of forgery, and that the demand was made in accordance with the provisions of the Constitution and laws of the United States. This is as full as any warrant, commitment, or precept for the purpose can bo required.
    When, then, the Governor shows that it lias been made known to him that the party does stand charged with a particular crime, it is as specific and certain as need be, and he is not required to set out the evidence.
    III. Even should it be held by the court that there was any technical defect or want of a recital in the warrant, it is most confidently urged that it will be the duty of the court to detail the prisoner a reasonable time to enable such defect to be supplied. Such is the jurisdiction of the writ of habeas corpus. Such have been the decisions of appellate courts as well as of district judges, and sucli practice is necessary to sustain and enforce the law. The court exercises original jurisdiction in this matter. It hears the proceeding just as each of its judges would hear it in vacation, and can make the same order. With no legal exactness or propriety can its jurisdiction be considered other than original. (See Hart. Dig., art. 2928.)
    The jurisdiction to hear a habeas corpus and to render judgment upon the return is a jurisdiction either to discharge the prisoner finally or remand him to custody; or if there be a defect iu the commitment, and yet probable ground appears to the court of the commission of the offense, to detain him a reasonable time to enable a formal warrant or commitment to issue. It is as much a part of the jurisdiction over writs of habeas corpus to detain a
    reasonable time for further proceedings, if in its discretion it seems proper, as it is to discharge or remand the prisoner. (1 Chitt. Crim. L., 130; ex parte Tayloe, 5 Cow. R., 50, and eases cited.) The law, then, which gives this court jurisdiction to hear the writ of habeas corpus thereby gives it the discretion of detaining the prisoner for a more formal warrant or commitment.
    In this case the recitals in the warrant are certainly sufficient to force upon the minds of the court the conviction that Thornton was properly demanded by the Governor of Arkansas, and that the proper evidence was before the Governor of Texas. Even if the requisition were informal, it has been held to be the duty of the court to detain the prisoner a reasonable time to enable tlie Governor of Arkansas to demand him in'proper form. (Exparte Smith, 5 Cow., 273; Short v. Deacon, 10 Serg. & Rawle; State v. Bnzine, 4 Hairing. R., 572; 10 U. S. An. Dig., Title Fugitives ebom Justioe.) Much more, then, where there has been concurrent action by the Executives of both States for the removal of this fugitive would it be the duty of the court to> detain him until a proper warrant might issue.
    The Constitution and laws of the United States are no less the laws of this State and of this court than our own statutes. Ton are sworn to support them. Your duties as conservators “of the peace” apply no less to their enforcement than to the laws of the State. The duty of enforcing the laws for the delivery of fugitives is especially enjoined by sound national policy and by the obligations of morality and justice. (3 Story, Com. Const.)
   Hemphill, Ch. J.

The 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 State of Arkansas was accompanied with a copy of an indictment found, or an affidavit made before some magistrate of tlie State of Arkansas, certified to by the said Executive as being duly authenticated, and charging the relator with having commuted the crime of forgery within the said State, and we are of opinion that on the ground set forth he is entitled to his discharge. The delivery up by the Executive of this State of fugitives from the justice of a sister State is controlled, not by the principles of international law or the practices of comity between nations or the provisions of any statute of this State, for none such has passed, but exclusively by the provision of the Constitution of the United States in relation to the subject-matter and the act of Congress adopted to carry the same into effect.

The portion of the section of the Constitution referred to is in these words : “A person charged in any State with treason, 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 “removed 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 demaud any fugitive from justice of the Executive authority of any such State or Territory to which such person 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, charging 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 person charged fled, it shall''be the duty of the Executive of the State or Territory to which such person shall have fled to cause him or her to be arrested, &e. From this it is manifest that two of the essential elements of the authority to issue the warrant were—

1st. A copy of the indictment found 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 appearing on the face of the warrant that such copy has been produced to the Executive, and that the warrant had issued in consequence thereof, it appears on the contrary 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 case. The representations of the Executive of the demanding State are of no effect, 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 authority 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 affidavit had been produced to the Executive. Such appears to be the usual form in the cases which have been submitted to our examination. (9 Wendell, 212; 3 McLean, 121.)

Whether the indictment or affidavit should be fully set 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 3 McLean, 121, ex parte Joseph Smith, the affidavit was adjudged insufficient. This’opinion is intended simply to announce our conclusions in the case, and it probably may be written out more at large before the close of the Term.

Note. — The motion to detain was called to the attention of the court after the foregoing opinion was read from the bench. The court, without further argument, expressed the'opinion that they had no power to detain the prisoner. Justice Wheeler requests the .Reporter to note that upon this point he gave no opinion. — Rep,

We are of opinion that the prisoner is entitled to his discharge, and it is accordingly so ordered.

Ordered accordingly.  