The matter under consideration presents a case arising under the 2d section, 4th article of the Constitution of the , 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 ,) power to issue the writ of , when a person is confined “under color of or by the authority of the .” Smith is in custody under color of, and by authority of the 2d section, 4th article of the Constitution of the . As to the instrument employed or authorised 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 . The power is not official 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 ; hence the 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 shows that he has arrested and now holds in custody Joseph Smith, in virtue of a warrant issued by the of , under the 2d section of the 4th article of the Constitution of the , 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 [p. 131]