Judge Pope had continued his court two or three days in order to give Joseph's case a hearing, and in the first interview the judge had with him, agreed to try the case on its merits, and not dismiss it on any technicality. The deputy sheriff of Adams County was present, but refused at first to say whether he had the original writ or not; but finally King, his associate, admitted he had it.
Fearing that it was the object of these men to hold the original writ until after proceedings had concluded on the arrest made by virtue of Governor Carlin's proclamation, and thus create more trouble, a petition was made to Governor Ford to issue a new writ, that the case might come up on its merits, which was granted, and Joseph was arrested by Mr. Maxey, and a writ of habeas corpus was issued by the court; but as several days must elapse before a hearing could be had, Joseph was placed under $4,000 bonds, Wilson Law and General James Adams being his bondsmen.
At last the day of trial came on and the attorney-general of the State made the following objection to the jurisdiction of the court:
1. The arrest and detention of Smith, was not under or by color of authority of the United States, or of any officer of the United States, but under and by color of authority of the State of Illinois, by the officer of the State of Illinois.
2. When a fugitive from justice is arrested by authority of the governor of any State, upon the requisition of the governor of another State, the courts of justice, neither State nor Federal, have any authority or jurisdiction to inquire into facts behind the writ.
These points were ably argued pro and con by Mr. Butterfield for the defense, and the attorney-general for the State. After giving a patient hearing, the court gave its opinion, saying in relation to the first objection, that, "The warrant on its face purports to be issued in pursuance of the Constitution and laws of the United States, as well as of the State of Illinois;" and therefore the court had jurisdiction.
"The matter in hand," said Judge Pope, "presents a case arising under the second section of article IV of the Constitution of the United States, and an act of Congress of February 12th, 1793, to carry it into effect. The Constitution says: 'The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States, and treaties made, and which shall be made under their authority.'"
Therefore, on that line of reasoning, the judge concluded the court had jurisdiction. As to the second objection—the right of the court to inquire into facts behind the writ—the judge held it unnecessary to decide that point, as Smith was entitled to his discharge, for defect in the affidavit on which the demand for his surrender to Missouri was made. To justify the demand for his arrest the affidavit should have shown, "First, that Smith committed a crime; second, that he committed it in Missouri. And it must also appear 'that Smith had fled from Missouri.'" None of these things the affidavit of Boggs did, and the judge held that it was defective for those reasons, and added:
The court can alone regard the facts set forth in the affidavit of Boggs as having any legal existence. The mis-recitals and over-statements in the requisition and warrant are not supported by oath and cannot be received as evidence to deprive a citizen of his liberty, and transport him to a foreign State for trial. For these reasons, Smith must be discharged.
And Joseph had scored another victory over his old enemies in Missouri.