I am unable to concur with the majority of the court. In my judgment, the provision of the constitution *84under which the demand for the rendition of the relator is made, confers upon the state of which the demand is made authority to determine.whether the conditions on which the right to demand a fugitive from justice exist. One of these conditions is, that it shall appear that the person demanded has fled from justice to the state of which the demand is made. Unless the congress of the United States have, in a competent and effective manner, prescribed otherwise, the question arising under the constitution is a judicial question. It involves the existence of a condition on which the liberty of the citizen depends, and therefore is, in its nature, judicial. No statute of this state prescribes the authority by which this fact is to be determined. There is nothing, then, to prevent the court from inquiring whether the conditions exist warranting the interference’that is claimed with the liberty of the relator, unless the act of congress provides in a competent manner for tlje mode of ascertaining whether the person demanded is a fugitive from justice, and that fact must be established conformably to the laws of this state where it is questioned in a court of competent jurisdiction. The act of congress is entirely silent as to the proper means of establishing the fact that the person demanded has fled from justice, and, indeed, does not render it necessary that the executive of the state making the demand should affirm the existence of such fact. Under these circumstances, as it is not competent for congress to dispense with the constitutional requirement in this respect, it must be concluded that the question of the authority of the laws of the state, in ascertaining the proper mode of exercising the power conferred by the constitution, remains unaffected by the act of congress, and that such was the intention of that act.
It is necessary, therefore, that the demandant state should show in some competent manner that the relator has fled from justice. As this court has a general competency by habeas corpus to inquire into the validity of any claim to deprive a citizen of his liberty, this proceeding being of that nature, it is the duty of the demandant state to establish before us the fact that the relator has fled from justice in the sense of the constitution.
I am of the opinion that this has not been done. It is the duty of the demandant state to allege the facts upon which the *85right of demand depends. The requisition of the governor of Georgia does not, in my judgment, affirm in a competent manner the important jurisdictional fact that the relator has fled from' justice as the constitution prescribes. The requisition merely states that it has been represented to the governor of that state that the relator has fled from justice from that state; but it is not stated that such representations are satisfactory to the governor making the demand, or that he believes such representations to be true.
There is, in my judgment, an equal defect as it regards the proof demandable of the State of Georgia, The process under which it is sought to deprive the relator of his liberty is in derogation of the common law, and every fact necessary to warrant it is jurisdictional, and must be both alleged and proven. " The competency of the proof must be determined by the laws of this state, where there is no conflicting rule established by competent authority displacing these laws.. The only evidence on the part of the demandant state to which our attention has been called for the purpose of proving that the relator has fled from justice, is contained in the affidavit taken in Georgia before a magistrate of that state, which constitutes the charge made against the relator in the Criminal Court of Georgia, a copy of which only is before us, having been transmitted by the governor of Georgia. It is clear . that a copy of an affidavit sworn in the State of Georgia before a person not competent to administer an oath, so as to make competent testimony to be used before the courts of this state, is, in itself, incompetent proof of any fact in which the liability of the ■citizen depends in the courts. Before testimony can subserve such a purpose, it must, except in a restricted class of cases, to which the present does not belong, be given under the sanction of an oath, carrying with it the penal consequences of false swearing. The proof in question . can _ only be received where it is made such by competent authority. It will not be pretended that the act of congress makes the copy of the indictment or affidavit transmitted by the demandant state proof of any fact beyond that, that the relator has been charged with crime in the State of Georgia.
It certainly does make the requisition of the governor of *86Georgia, when accompanied by a true copy of the indictment or affidavit constituting the charge, competent proof that such charge-had beeu made in the state, but beyond that it does not accredit the copy affidavit with authority as proof in the courts of this-state. It may be said that the affidavit in question only inferentially states that the relator was in the State of Georgia at the time when the alleged offence was committed, such inferences-being based on the formal expressions that constitute the allegations of time and venue material to the certainly of the charges, and that if it was conceded that the affidavit was competent for any purpose other than that of proving the existence and nature of the charge that was made by means of it, still it lacks the certainty material to the allegation of a fact on which the claim to interfere with the liberty of a citizen depends ; but as I am satisfied that the affidavit is incompetent as proof of any fact except as to the existence and nature of the charge made in Georgia, it is unnecessary to comment on this particular defect of the proof sought to be obtained from the affidavit.
In my judgment it was for the demandant state to affirm and establish the fact that the relator had fled from justice, and if it be true that the relator has not traversed that fact, that circumstance is immaterial, as he was not bound to traverse it until it was alleged in a competent manner. One cannot be prejudiced by his silence except when the law compels him to speak, and. the relator liad a perfect right to remain silent and cast upon the demandant state the onus of showing its right to interfere with his liberty.
There are certain legal conclusions that arise from the very foundation of our ideas of judicial administration, so rooted in principle and sanctioned by a common sense of justice that even the construction of statutes and constitutions must yield to their irresistible force. It is such a conviction that leads me to the conclusions that have already been stated. Is it possible that a state would, by its judicial authority, surrender to another state-one of its citizens, to be tried on a charge of crime, where it appears that the crime was of. such a nature that it could not have been committed, unless the party charged with such offence was personally present in the state at the time of the alleged com*87mission of the offence, and when it further appears that suclp citizen had never been in the state where, it is alleged,- such offence was committed! Such a proposition coming from a state neglecting so important a public duty could only be regarded as an abdication of its dignity and authority, either througlT neglect of duty or timidity in discharging it. So it would be equally reprehensible to dispense with the sanctions of the rules of evidence that govern the administration of justice, in order to yield a mere perfunctory obedience to the requirements of the act of congress, when it is called upon, in my judgment, to perform an important judicial act, no less than that of applying to the citizen the safeguard of liberty, secured by the constitution of the United States itself.
In my judgment there is not competent proof to warrant the surrender of the relator to the public authorities of the State of Georgia.
Motion refused.