Volume 5 Chapter 9
Letter of James Arlington Bennett to the Prophet and the N.Y. "Herald"—Emma's Illness—Plots to Entrap the Prophet—Legal Opinion of Justin Butterfield on the Missouri Procedure.
Friday, September 9, 1842.—At 10 p.m. I received a very interesting visit from Emma, Amasa Lyman, George A. Smith and Wilson Law.
Movements of the Prophet in Nauvoo.
I counseled George A. Smith and Amasa Lyman to stay in Illinois and preach in the principal cities against mobocracy, and to notify the Twelve that it was my wish that they should also labor in Illinois. After a conversation of two hours, I accompanied the brethren and Emma to my house, remaining there a few minutes to offer a blessing upon the heads of my sleeping children; then called a few minutes at the house of my cousin George A. Smith, on my way to my retreat at Edward Hunter's. John D. Parker accompanied me as guard.
Brigham Young, Heber C. Kimball, Amasa Lyman, George A. Smith, and Charles C. Rich declared to the city council their intention of absence for three months or more, and others were appointed to fill their places during their absence. John P. Greene, Lyman Wight, and William Law were absent, and their places were filled. The object of the absence of these brethren was to preach the gospel in different states, and show up the wickedness and falsehood of the apostate John C. Bennett.
An ordinance relative to the returns of writs of habeas corpus was passed by the city council as follows:
An ordinance relative to the return of wits of Habeas Corpus.
Sec. 1. Be it, and it is hereby ordained by the city council of the city of Nauvoo, that the Municipal Court, in issuing writs of Habeas Corpus, may make the same returnable forthwith.
Sec. 2. This ordinance to take effect, and be in force from, and after its passage, passed September 9th, 1842.
Geo. W. Harris,
President pro tem.
James Sloan, Recorder.
President Young started on his mission.
Saturday, 10.—Heber C. Kimball, George A. Smith, and Amasa Lyman started on their mission, and proceeded as far as Lima, where they met Brigham Young, who was preaching to a congregation. This was the day for the training of the companies of the Nauvoo Legion; and, lest I should be observed by the multitude passing and repassing, I kept very still. After dark, my wife sent a messenger and requested me to return home, as she thought I would be as safe there as anywhere; and I went safely home undiscovered.
Sunday, 11.—I was at home all day. My letter of the 6th of September was read to the Saints, at the grove near the temple. The High Priests' quorum met. Several had gone on missions; others were preparing to go, but few were present, and the meeting adjourned sine die.
Elders Brigham Young, Heber C. Kimball, George A. Smith and Amasa Lyman addressed a large assembly in the grove in Lima, in relation to the slanderous reports of John C. Bennett.
Letter from Brigham Young and Heber C. Kimball—Reporting their Movements.
To the Editor of the Times and Seasons:
Dear Brother:—Having commenced our mission yesterday, we held our first conference at Brother Isaac Morley's. We had a good time. The brethren here are in good spirits. We ordained nineteen elders, and baptized twelve. We expect next Saturday and Sunday to hold a two days' meeting in Quincy, being the 17th and 18th instant; on the 24th and 25th, at Payson; the 1st and 2nd of October, at Pleasant Vale; the 8th and 11th October, at Pittsfield; the 15th and 16th October, at Apple Creek in Green county. From thence we shall proceed to Jacksonville and Springfield.
If you please, notice the above in your paper for the benefit of those friends scattered abroad.
Yours in the everlasting covenant,
Heber C. Kimball.
Morley Settlement, September 12, 1842.
I was at home all day in company with Brothers Adams and Rogers, and counseled Brother Adams to write a letter to the governor. In the evening, Emma received governor Carlin's letter of the 7th instant.
Tuesday, 13.—At home all day. Settled with Edward Hunter.
Wednesday, 14.—At home. Mr. Remmick gave me a deed of one half his landed property in Keokuk, though it will be a long time, if ever, before it will be of any benefit to me. Had a consultation with Calvin A. Warren, Esq. In the evening I received the following letter from General James Arlington Bennett:
Letter of James Arlington Bennett—Treating Chiefly of John C. Bennett and his Book.
Arlington House, September 1, 1842.
Lieutenant General Smith:
Dear Sir:—Mrs. Smith's letter to Mrs. Bennett, containing a very lucid account of Dr. John C. Bennett, has been received; and the only thing concerning him that I regard of importance is that you found it necessary to expose him. I wish most ardently that you had let him depart in peace, because the public generally think no better of either the one party or the other, in consequence of the pretended exposures with which the newspapers have teemed. But then, in the long run, you will have the advantage, inasmuch as the universal notoriety which you are now acquiring will be the means of adding to Nauvoo three hundred fold.
That you ought to be given up to the tender mercies of Missouri no man in his senses will allow, as you would be convicted on the shadow of evidence when the people's passions and prejudices are so strongly enlisted against you; and, under such a state of things, how easily it would be to suborn witnesses against you, who would seal your fate! Add to this, too, the great difficulty under which an impartial jury, if such could be found, would labor in their attempt to render an honest verdict, being coerced by surrounding public prejudice and malice. And yet, as you are now circumstanced, it will not do to oppose force to force for your protection, as this in the present case would be treason against the state, and would ultimately bring to ruin all those concerned.
Your only plan, I think, will be to keep out of the way until this excitement shall have subsided, as, from all I can understand, even from the Dr. himself, there is no evidence on which an honest jury could find a verdict against you; and this opinion I have expressed to him.
I most ardently wish that you had one hundred thousand true men at Nauvoo, and that I had the command of them, times and things would soon alter. I hope to see the day, before I die, that such an army will dictate terms from Nauvoo to the enemies of the Mormon people. I say this in the most perfect candor, as I have nothing to gain by the Mormons, nor am I a Mormon in creed; yet I regard them in as favorable a light (and a little more so,) as I do any other sect. In fact, I am a philosophical Christian, and wish to see an entire change in the religious world.
I have been long a Mormon in sympathy alone, and probably can never be one in any other way; yet I feel that I am a friend of the people, as I think them honest and sincere in their faith; and those I know [are] as good and honorable men as any other professing Christians.
Dr. Bennett has been the means of bringing me before your people, you will therefore see, for this act, I am in honor bound to say, "Peace to his manes." To act otherwise would be ungrateful and dishonorable, both of which qualities are strangers to my nature: nevertheless, by leaving him as he is, I can still be your friend; for be assured that nothing I have seen yet from his pen has in the least altered my opinion of you. I well know what allowances to make in such cases.
Dr. Bennett and Bachelor are now delivering lectures in New York against you and your doctrines and asserted practices at Nauvoo.
Elder Foster told me, this forenoon, that the seats have been torn to pieces out of his church in Canal-street, and that the congregation had to move to another place.
I intimated to you, in my last, that Bennett of the Herald was about to publish, conjointly with the Doctor, his Book of Exposures; but since, have learned that it is about to come out in Boston. He expects to make a fortune out of it, and I presume he needs it; but I feel sure that it will make converts to the Mormon faith. He has borrowed largely from Com. Morris' lascivious poems.
A general order, signed by Hugh McFall, Adjutant-General, and authorized by you, has appeared in the Herald, ordering me to repair to Nauvoo, to take command of the Legion, and to bring with me Brig.-Gen. J. G. Bennett, which states that, if the requisition be persisted in, blood must be shed. I have assured Bennett of the Herald that I deem it a hoax, but he insists upon it that it is genuine. My reply to it has appeared to day in that paper. I have there stated that I have written to Gov. Carlin for instructions. This is not so: it is only a rub.
On the whole, you will only be made a greater prophet and a greater man—a great Emperor, by the affliction and consideration of your good friends.
My respects, with those of Mrs. B., to your lady.
I am, dear sir, your sincere friend,
James Arlington Bennett.
This letter was placed in the hands of General Hugh McFall, who immediately wrote a refutation of the clause concerning himself to Governor Carlin, and also one for the Wasp. The general order was not written by McFall, neither had he a knowledge of its existence until shown to him in the letter. It was evidently got up by our enemies to increase excitement and anger, and is barely another addition to the many slanderous reports put in circulation by evil and designing men.
Thursday, 15.—In council with C. A. Warren, Esq. Also counseled Uncle John Smith and Brother Daniel C. Davis to move immediately to Keokuk, and help to build up a city.
Friday, 16.—At home with Brother Rogers, who was painting my likeness.
Saturday, 17.—I was at home with Brother Rogers, who continued painting my portrait. Elder William Clayton wrote Governor Carlin a long letter, showing up the Missouri persecution and my sufferings in their true colors.
Ship Sidney sailed from Liverpool for New Orleans with 180 Saints.
Sunday, 18.—At home. In the evening, received a visit from my mother.
Monday, 19, and Tuesday, 20.—With Brother Rogers, painting at my house.
Wednesday, 21.—In the large room over the store. In the evening had a visit from Elder John Taylor, who is just recovering from a long and very severe attack of sickness. I counseled Elder Taylor concerning the printing office, removing one press to Keokuk, &c.
Thursday, 22.—At home, arranging with Remmick concerning moving printing press to Keokuk, buying paper, &c.
Friday, 23.—At home. Visited by Elder Taylor.
Colonel George Miller was elected Bigadier-General of the 1st Cohort, Nauvoo Legion, to fill the vacancy of General Wilson Law, promoted.
Saturday, 24.—The legion was called out for general parade, and reviewed by General Law. In the evening, Lieutenant-Colonel Stephen Markham was elected Colonel of the 1st Regiment, 1st Cohort, to fill the place of Colonel George Miller, promoted; and Captain John D. Parker elected to fill his place; and Captain Thomas Rich to fill the place of Major Wightman, deceased.
At home. Had a visit from Mr. Joseph Murdock, Sen., and lady concerning some land, &c., at St. Joseph.
Sunday, 25.—At the Grove. Spoke more than two hours, chiefly on the subject of persecution.
Ship Medford sailed from Liverpool for New Orleans with 214 Saints.
Monday, 26.—The office of Notary Public for the city of Nauvoo was created by the city council, and James Sloan was elected. A seal for the Municipal Court was ordered by the council.
Tuesday, 27, and Wednesday, 28.—At home. Nothing of importance transpired. 28.—Ship Henry sailed from Liverpool for New Orleans with 157 Saints.
September 28, 1841:
A Baptist Excommunication.
Resolved, that William Seichrist be excluded from the fellowship of this [the first regular Baptist] church [of the city of Alleghany, Alleghany county, Pennsylvania,] for embracing and maintaining a heresy,—to wit, doctrines peculiar to a late sect called Mormons or Latter-day Saints, that miracles can be wrought through the instrumentality of faith; that special revelations from God are now given to men; and that godly men are now endowed with the gift of prophecy, such as to foretell future events. William Benson, Church Clerk. Deacon John Beck was moderator of the meeting.
Thursday, 29.—This day, Emma began to be sick with fever; consequently I kept in the house with her all day.
Friday, 30.—Emma is no better. I was with her all day.
Temple Committee Affairs.
Saturday, October 1.—This morning I had a very severe pain in my left side, and was not able to be about. Emma sick as usual. I had previously sent for the Temple committee to balance their accounts and ascertain how the Temple business was going on. Some reports had been circulated that the committee was not making a righteous disposition of property consecrated for the building of the Temple, and there appeared to be some dissatisfaction amongst the laborers. After carefully examining the accounts and enquiring into the manner of the proceedings of the committee, I expressed myself perfectly satisfied with them and their works. The books were balanced between the trustee and committee, and the wages of all agreed upon.
I said to the brethren that I was amenable to the state for the faithful discharge of my duties as trustee-in-trust, and that the Temple committee were accountable to me, and to no other authority; and they must not take notice of any complaints from any source, but let the complaints be made to me, if any were needed, and I would make things right. The parties separated perfectly satisfied, and I remarked that I would have a notice published, stating that I had examined their accounts and was satisfied, &c. It was also agreed that the recorder's office should be moved to the Temple, for the convenience of all.
In this day's Wasp I noticed the following letter from Elder Pratt:
Letter of Elder Orson Pratt—Denying any Relations with John C. Bennett.
City Of Nauvoo, Illinois, September 26, 1842.
Dear Sir:—I noticed in the last week's Wasp a letter from Dr. R. D. Foster, written from New York city, which states that Dr. John C. Bennett had declared in said city that he had received a letter from me and from my wife, and that we were preparing to leave and expose Mormonism.
I wish through the medium of your paper to say to the public that said statements are entirely false. We have never at any time written any letter or letters to Dr. J. C. Bennett, on any subject whatever. Neither are we "preparing to leave and expose Mormonism," but intend to make Nauvoo our residence, and Mormonism our motto.
Reward offered for the Arrest of the Prophet.
Sunday, 2.—About ten o'clock in the forenoon, a messenger arrived from Quincy, stating that the governor had offered a reward of $200 for Joseph Smith, Jun., and also $200 for Orrin P. Rockwell. This report was fully established on receipt of the mail papers. The Quincy Whig also stated that Governor Reynolds has offered a reward, and published the governor's proclamation offering a reward of $300 for Joseph Smith, Jun., and $300 for Orrin P. Rockwell. It is not expected that much will be effected by the rewards.
Emma continued very sick. I was with her all day.
Monday, 3.—Emma was a little better. I was with her all day.
Tuesday, 4.—Emma is very sick again. I attended with her all the day, being somewhat poorly myself.
Wednesday, 5.—My dear Emma was worse. Many fears were entertained that she would not recover. She was baptized twice in the river, which evidently did her much good. She grew worse again at night, and continued very sick indeed. I was unwell, and much troubled on account of Emma's sickness.
Rigdon's Reports of Plots.
Elder Rigdon called Elder William Clayton into his office, and said he had some matters to make known. He had been at Carthage and had conversation with Judge Douglas concerning Governor Carlin's proceedings, &c., and had ascertained that Carlin had intentionally issued an illegal writ, expecting thereby to draw President Joseph to Carthage to get acquitted by habeas corpus before Douglas, and having men there waiting with a legal writ to serve on Joseph as soon as he was released under the other one, and bear him away to Missouri, without further ceremony. Elder Rigdon asked what power the governor's proclamation gave to any man or set of men who might be disposed to take President Joseph. He was answered, "Just the same power and authority which a legal warrant gave to an officer."
It is more and more evident that Carlin is determined to have me taken to Missouri, if he can. But may the Almighty Jehovah shield and defend me from all their power, and prolong my days in peace, that I may guide His people in righteousness, until my head is white with old age. Amen.
Thursday, 6.—Emma is better; and although it is the day on which she generally grows worse, yet she appears considerably easier. May the Lord speedily raise her to the bosom of her family, that the heart of His servant may be comforted again. Amen. My health is comfortable.
More Missouri Plots.
Friday, 7.—This morning Elder Elias Higbee states about the same things as were stated by Elder Rigdon two days ago, and also that he had been informed that many of the Missourians are coming to unite with the militia of this state voluntarily, and at their own expense; so that after the court rises at Carthage, if they don't take me there, they will come and search the city, &c. It is likely that this is only report.
Emma is somewhat better. I am cheerful and well.
The Prophet's Removal to Father Taylor's.
From the situation and appearance of things abroad, I concluded to leave home for a short season, until there should be some change in the proceedings of my enemies. Accordingly, at twenty minutes after eight o'clock in the evening, I started away in company with Brothers John Taylor Wilson Law, and John D. Parker, and traveled through the night and part of next day; and, after a tedious journey, arrived at Father James Taylor's well and in good spirits.
This day the teachers met in Nauvoo, and organized into a quorum, by appointing Elisha Averett, president; James Huntsman and Elijah Averett, counselors ; Samuel Eggleston, scribe; and eleven members.
Monday, 10.—Elder Taylor returned to Nauvoo and found Emma gaining slowly. My health and spirits are good.
Tuesday, 11.—From the Times and Seasons.—
Announcement Concerning Temple Committee Affairs.
To the Saints at Nauvoo and Scattered Abroad:
This may certify that President Joseph Smith, the trustee-in-trust for the Temple, called upon the Temple committee on the 1st instant to present their books and accounts for examination, and to give account of their work at the temple. After carefully and attentively examining and comparing their books and accounts, the trustee expressed himself well satisfied with the proceedings and labors of the committee, and ordered that this be published in the Times and Seasons, that the Saints may know the facts, and be thereby encouraged to double their exertions and forward means to roll on the building of the Temple in Nauvoo. It was also ordered that the recorder's office be henceforth removed to the committee house near the Temple. All property and means must therefore be brought to that place, where it will in due form.
Clerk and Recorder of the Temple.
Nauvoo, October 11, 1842.
Thursday, 13.—The brethren arrived from Wisconsin with a raft of about 90,000 feet of boards and 24,000 cubic feet of timber for the Temple and Nauvoo House.
Saturday 15.—Brother John D. Parker returned to Nauvoo and informed my friends that I was well.
Sunday, 16.—I copy the following from the New York Herald:
Arlington House, October 16, 1841.
General J. G. Bennett:
Sir:—Some time since I addressed a letter to Joseph Smith, the Mormon Prophet, in answer to a letter of his introducing to "my kind attention," a friend of his from the holy city of Nauvoo.
In this letter I expressed my regret that the quarrel between him and John C. Bennett should have at all found its way to the public eye, this being the sole cause of placing him in his present awkward situation. I likewise commiserated with him in his affliction, and signed myself at the conclusion of my letter, as his friend, which I really am, and the friend of all good Mormons, as well as other good men.
Why should I not be Joseph Smith's friend? He has done nothing to injure me, nor do I believe he has done anything to injure ex-Governor Boggs, of Missouri. The governor, no doubt, under strong feelings, may have thought and believed that Smith had preconcerted the plan for his assassination; but there is no legal evidence whatever of that fact—none by which an unprejudiced jury would convict any man; yet to send this man into Missouri, under the present requisition, would be an act of great injustice, as his ruin would be certain.
How could any man, against whom there is a bitter religious prejudice escape ruin, being in the circumstances of Smith? Look at the history of past ages—see the force of fanaticism and bigotry in bringing to the stake some of the best of men; and in all these cases the persecutors had their pretexts, as well as in the case of the Mormon chief. Nothing follows its victim with such deadly aim as religious zeal, and therefore nothing should be so much guarded against by the civil power.
Smith, I conceive, has just as good a right to establish a church, if he can do it, as Luther, Calvin, Wesley, Fox, or even King Henry the Eighth. All these chiefs in religion had their opponents, and their people their persecutors. Henry the Eighth was excommunicated, body and bones, soul and all, by his holiness, the Pope; still the church of England has lived as well as all the other sects.
Just so it will be with the Mormons. They may kill one prophet and confine in chains half his followers, but another will take his place, and the Mormons will still go ahead. One of their Elders said to me, when conversing on this subject, that they were like a mustard plant,—"If you don't disturb it, the seed will fall and multiply; and if you kick it about, you only give the seed more soil, and it will multiply the more."
Undertake to convince them that they are wrong, and that Smith is an impostor, and the answer is, laying the hand on the heart, "I know in my own soul that it is true, and want no better evidence: I feel happy in my faith; and why should I be disturbed?"
Now, I cannot see but what this is the sentiment that governs all religiously disposed persons, their object being heaven and happiness, no matter what their church and creed. They, therefore, cannot be put down while the Constitution of the United States offers them protection in common with all other sects, and while they believe that their eternal salvation is at stake. From what I know of the people, I fully believe that all the real, sincere Mormons would die sooner than abandon their faith and their religion.
General John C. Bennett has stated that to conquer the Mormon Legion it would require five to one against them, all things taken into consideration, and that they will die to a man sooner than give up their Prophet.
Now, is the arrest of this man worth such a sacrifice of life as must necessarily follow an open war with his people? The loss of from one to three thousand lives will, no doubt, follow in an attempt to accomplish an object not in the end worth a button. Persecute them, and you are sure to multiply them. This is fully proved since the Missouri persecution, as since that affair they have increased one hundred fold.
It is the best policy, both of Missouri and Illinois, to let them alone; for if they are drove farther west, they may set up an independent government, under which they can worship the Almighty as may suit their taste. Indeed, I would recommend to the Prophet to pull up stakes and take possession of the Oregon territory in his own right, and establish an independent empire. In one hundred years from this time, no nation on earth could conquer such a people. Let not the history of David be forgotten. If the Prophet Joseph would do this, millions would flock to his standard and join his cause. He could then make his own laws by the voice of revelation, and have them executed like the act of one man.
With respect to myself, I would just repeat that I am the Prophet's friend, and the friend of his people, merely from sympathy, as my arm has ever been lifted on the side of the persecuted and oppressed. I have never in my life followed the fat ox, nor bowed for a favor on my own account to mortal man. While I despise the purse-proud man, I am proud to the proud man, and humble to the humble; and where men were contending, have ever thrown myself on the weakest side.
By inserting this communication, it is presumed that no one will hold the Herald responsible for the sentiments it contains; yet I have no doubt that there are thousands of independent, liberal-minded men in this country who think as I do. Neither the Mormon Prophet nor his people can add anything to my fortune or reputation. I expect nothing from them; they are a poor and industrious people, and have nothing to give. I am influenced in my conduct towards them by a spirit of benevolence and mercy, and hope the governor and state of Illinois will act in the like manner. It is true I was commissioned in their Legion, through the instrumentality of their enemy, General John C. Bennett, an act entirely of their own, without my agency; but I was as much their friend before as since.
The Missouri persecution fixed my attention and commiseration on the people. It must be recollected, too, that the Mormon Prophet and his people are the most ardent friends and promoters of literature and science. These are elementary principles in their social system, and this certainly is contrary to everything like despotism.
I hope, therefore, and with great deference express that hope, that ex-Governor Boggs will withdraw his demand for the Prophet, and let those poor people rest in peace. Both he and Governor Carlin will feel much more at peace with themselves by quashing the whole proceedings.
Your humble servant,
James Arlington Bennett.
Counselor at Law, &c.
By this I discover a spark of liberty burning in the bosom of the writer. May it continue to burn and burn, till it once more fires the whole land with its heavenly influence.
Thursday, 20.—Early this morning I arrived at home on a visit to my family. During the day I was visited by several of the brethren, who rejoiced to see me once more. Emma is still getting better, and is able to attend to a little business, having this day closed contract and received pay for a quarter section of land of Brother Job V. Barnum.
Justin Butterfield's Legal Opinion on the Efforts to Drag Joseph Smith into Missouri.
Chicago, October 20, 1842.
Sidney Rigdon, Esq.
Dear Sir:—In answer to your favors of the 17th instant, Mr. Warren was correct in the information he gave you of my opinion of the illegality of the requisition made by the governor of Missouri upon the governor of this state for the surrender of Joseph Smith, and that the governor of this state should cause him to be arrested for the purpose of being surrendered. I had no doubt but the supreme court of this state would discharge him upon habeas corpus. Subsequent examination has confirmed me in that opinion.
I understand from your letter, and from the statement of facts made to me by Mr. Warren, that the requisition of the governor of Missouri is accompanied by an affidavit of ex-Governor Boggs, stating in substance that on the 6th day of May last he was shot while sitting in his house, with intent to kill; and, as he verily believes, the act was committed by O. P. Rockwell; and that Joseph Smith was accessory to the crime before its commission; and that he has fled from justice. That it can be proved that Joseph Smith was not in the state of Missouri at the time the crime was committed, but was in this state; that it is untrue that he was in the state of Missouri at the time of the commission of the said crime, or has been there at any time since. He could not, therefore, have fled from that state since the commission of said crime.
The right on the part of the governor of Missouri to demand Smith, and the duty on the part of the governor of this state to deliver him up, if they exist, are given and imposed by that clause of the Constitution of the United States which declares "that 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 up, to be removed to the state having jurisdiction of the crimes."
It is unnecessary to refer to the act of Congress in relation to the delivery up of fugitives from justice, as Congress has just so much power, and no more, than is expressly given by the said clause in the Constitution. The Constitution is the best exponent of itself. What persons, then, can be surrendered up by the governor of one state to the governor of another?
First. He must be a person charged with treason, felony, or other crime. "It is sufficient if he be charged with the commission of crime, either by indictment found or by affidavit. Second. He must be a person who shall flee from justice and be found in another state."
It is not sufficient to satisfy this branch of the Constitution, that he should be "charged" with having fled from justice. Unless he has actually fled from the state where the offense was committed, to another state, the governor of this state has no jurisdiction over his person, and cannot deliver him up.
When Mr. Smith is brought up on a habeas corpus, he will have a right, under the 3rd section of our habeas corpus act, to introduce testimony, and show that the process upon which he is arrested was obtained by false pretense; that it is untrue that he fled from the state of Missouri, to evade being brought to justice there, for the crime of which he is charged. He will have the right to place himself upon the platform of the Constitution of the United States, and say, I am a citizen of the state of Illinois; I have not fled from the state of Missouri, or from the "justice" of that state, on account of the commission of the crime with which I am charged. I am ready to prove that the charge of having fled from that state is false, and I am not, therefore, subject under the Constitution of the United States, to be delivered up to that state for trial.
You say, in your letter to me, that you doubt whether on a habeas corpus the court would have a right to try the question, whether Smith was in Missouri at the time of the commission of the crime of which he is charged. To this I answer, that upon a habeas corpus, the court would be bound to try the question, whether Smith fled from justice from Missouri to this state. The affidavit of Mr. Boggs is not conclusive on this point. It may be rebutted. Unless Smith is a person who has fled from justice, he is not subject to be delivered up, under the express provisions of our own habeas corpus act. He has a right to show that the affidavit is false, and that the order for his arrest was obtained by false pretenses. Again, the affidavit on its face was not sufficient to authorize the arrest of Smith. It is evasive and deceptive. It does not show that he fled from the state of Missouri to evade justice for the commission of the crime of which he is charged by Governor Boggs.
Robert G. Williams, in the year 1835, was indicted in the state of Alabama for attempting to incite rebellion and insurrection in that state. He was demanded by the governor of that state of the governor of New York, and the requisition stated that he had fled from justice. The governor of the state of New York (Marcy) took notice that the said Williams was a citizen of the state of New York, and had not fled from justice from Alabama, and on that ground alonerefused to surrender him up. This was a stronger case than that of Smith, as an indictment had been found. Governor Marcy puts his refusal upon the express ground that, by the Constitution of the United States, the governor of one state had no right to demand, nor the governor of another state a right to surrender up, one of his citizens, unless he had fled from justice; and it was the right and duty of the governor upon whom the demand was made to inquire into the fact whether he had fled from justice before he made the surrender.
I have the book containing all the proceedings in this case of Williams. There are several other cases equal in point, and they proceed upon the ground that a governor of a state has no jurisdiction over the body of a citizen to arrest and surrender him up to a foreign state, unless he is a fugitive from that state, unless he has fled from the state to evade "justice," or, in other words, to evade being tried for the offense with which he is charged.
In a despotic form of government, the sovereign power is the will of the monarch, who can act in every instance as may suit his pleasure. But can the governor of one of our states, of his own mere will, without any authority from the Constitution, or the legislative power of the state, arrest and deliver up to a foreign government any person whatever? If he can do this, then is the liberty of the citizen wholly at his disposal.
The writ of habeas corpus is a suit which every person imprisoned or unlawfully detained has a right to prosecute for the recovery of his liberty; and, if he is in custody by process from a competent power, he is entitled to his discharge when the jurisdiction has been executed.
The government of this state has no power or jurisdiction over the person of a citizen of this state to arrest and cause him to be delivered up and transported to another state, except the power is expressly given to him by the Constitution of the United States. And what is that power? It only authorizes the governor of one state to surrender up a fugitive from justice, to return him back to the state from whence he has fled.
First. The person to be surrendered up must be a fugitive from the state to which it is attempted to surrender him.
Second. He must be a fugitive from justice; in other words, he must have been in the state when and where the crime was committed, and have fled from the state to evade being apprehended and tried for that crime.
Third. Unless he is, in fact, such a fugitive from justice, the governor has no power, by the laws and Constitution, to deliver him up.
Fourth. If he is charged with being a fugitive from justice, and the governor cause him to be apprehended on that charge, he has a right to sue out a habeas corpus; and when brought up on that writ, he has the undoubted right of showing that the governor has no constitutional power to deliver him up to another state; that he has not "fled from justice into this state," and is not such a person as the Constitution authorizes the governor to deliver up; and that it would be an excess of jurisdiction on the part of the governor to deliver him up.
The question to be examined into, upon the return of the habeas corpus, would be a mere question of locality. The question would be was Smith in this state, or not, at the time the crime was committed in Missouri? If he was in this state at that time, then he could not be a fugitive from justice from Missouri, in the sense of the Constitution; and the governor would have no power to deliver him up.
The argument that because Governor Boggs has made affidavit that Smith has fled from justice, his affidavit is to be taken as conclusive on that point, and that upon the return of a habeas corpus, Smith would be precluded from controverting or showing the falsity of that affidavit, is too absurd to require a serious answer.
The liberties of the citizens of this state are not held on quite so feeble a tenure, nor does the Constitution authorize the governor to transport the citizens of this state upon a mere "charge" made by a citizen of another state. Such is not the reading of the Constitution. That instrument only authorizes the delivery up of such persons, "who shall flee," upon the demand of the executive authority of the state from which they "fled." There must have been a "flight" in fact and in deedfrom the state where the offense was committed, or the governor has no jurisdiction to "deliver up."
If the charge of having "fled" is made and the governor acting in pais 1 is attempting to deliver up upon that charge, the person attempted to be made the victim has a clear, undoubted, constitutional right by means of a writ of habeas corpus, to test its truth before a judicial tribunal of the country; and, if the charge is proven to be false, the governor is ousted of his jurisdiction over the person of the prisoner and he is restored to his liberty before he has undergone the penalty of the transportation to a foreign country upon the mere charge of an interested or partial witness.
The power of the executive of a state to surrender up a citizen to be transported to a foreign state for trial, is a most tremendous power, which might be greatly abused, were it not limited by constitutional checks, and the citizens secured against its despotic exercise by the writ of habeas corpus.
In the case of Williams, the governor of New York, in his reply to the governor of Alabama, says, "What occurs daily in the ordinary course of criminal proceedings, may take place in regard to persons transported to a distant jurisdiction for trial. It may happen that an innocent man will be accused; and, if demanded, he must be delivered up, should your exposition of the Constitution be sanctioned. Under these circumstances, his condition would be perilous indeed,—dragged from his home, far removed from friends, borne down by the weight of imputed guilt, and unable, probably, to obtain the evidence by which he might vindicate his innocence. If appearances were against him, he could scarcely hope to escape unmerited condemnation."
The American colonists regard the exercise of this power as an act of revolting tyranny, and assigned it in the Declaration of Independence as one of the prominent causes that impelled them to a separation from the British Empire. A power which may be thus oppressively used should be resorted to with the greatest caution. When its exercise is invoked, it is not sufficient that the case may apparently come within the letter of the Constitution. It is the duty of the Executive before yielding a blind obedience to the letter of the law, to see that the case comes within the spirit and meaning of the Constitution.
It may be pleasing as well as instructive to look into the proceedings of the executive of our sister state, and witness that, by faithfully administering the law in relation to the delivering up of fugitives from justice, according to its spirit and meaning, they have saved at least two of the citizens of Illinois from becoming victims to its abuse. In the year 1839, the governor of the state of New York was presented with the copy of an indictment by a grand jury in the city of New York against John and Nathan Aldrich, for fraud in obtaining goods by false pretenses, and was requested to make a requisition upon the governor of Illinois to surrender them up as fugitives from justice.
Now, here was a case which came exactly within the letter of the law of Congress in relation to fugitives from justice. An indictment had been found charging them with having committed a crime. But did the governor of New York make the "requisition?" No; he referred the application to the Hon. John C. Spencer, now Secretary of War, and one of the most enlightened lawyers of the age.
Extract of Mr. Spencer's Opinion upon the Case.
The constitutional provision under which requisitions may be made by the governor of one state upon the governor of another was a substitute for the principle recognized by the law of nations, by which one sovereign is bound to deliver to another fugitives who have committed certain offenses. These offenses are of the deepest grade of criminality, and robbers, murderers and incendiaries, and those enumerated as proper to be surrendered. Following the analogy thus suggested, the provisions in our Constitution, it would seem, should be construed to embrace similar cases only, except, perhaps, those offenses which arise from an abuse of the same constitutional provision. That provision must be guarded with the utmost care, or it will become intolerable. I do not think the circumstances of the case before me are of such grave import, or the offense itself of such high grade, as to justify the requisition desired. The power given by the Constitution ought not to be cheapened or applied to trifling offenses, or indeed to any that was not originally contemplated.
For the reasons stated in Mr. Spencer's opinion, the governor of New York refused to make the requisition upon the governor of Illinois. The case certainly came within the letter of the law, but not within the spirit and meaning. So with the affidavit of Governor Boggs, when he swears that Smith has fled from justice. It may come within the letter of the Constitution; but does it come within its spirit and meaning? Does it show that Smith was in Missouri at the time of the commission of the crime, and that he fled from that state to evade being brought to justice for that crime? Or does it refer to the flight of Smith and the Mormons from Missouri some years since?
I will refer to one more case of a similar nature. Lord Campbell, formerly attorney-general of England, in a recent debate in Parliament upon the subject of the Creole, made the following remarks:
"To show how cautious states should be in making such concessions one to the other reciprocally, he would mention a case that occurred when he was attorney-general. A treaty had been agreed upon between the state of New York and the province of Canada, by which the government of each agreed reciprocally to deliver up the citizens or subjects of the other against whom grand juries had found a bill, and who had sought refuge within the territories of the other. It happened that a slave had escaped from his master in New York, and had got to Canada. To facilitate his escape, he rode a horse of his master's for a part of the way, but turned him back on reaching the frontier. The authorities of New York well knew that England would not give up a runaway slave, and that as they could not claim him under the treaty, they therefore had a bill of indictment against him, before a New York grand jury for stealing the horse, though it was clear the animus furandi was wanting. The grand jury, however, found a true bill against him for the felony, and he was claimed under the treaty. The governor, under such circumstances refused to give him up until he had consulted the government in England. He (Lord Campbell) was consulted, and gave it as his opinion that the man ought not to be given up, as the true bill, where no felony had been committed, did not bring the case within the treaty. The man was not given up, and there the matter rested. This, he repeated, showed the necessity of the greatest caution where reciprocal rights of surrender were granted between states.
It is not to be presumed that the executive of this state would knowingly, lend his aid in dragging one of our citizens, who is not a fugitive from justice, into a foreign state for trial. The governor has undoubtedly been misled by the evasive affidavit which accompanied the requisition.
I would advise that Mr. Smith procure respectable and sufficient affidavits to prove beyond all question, that he was in the state and not in Missouri, at the time the crime with which he is charged was committed, and upon these affidavits, apply to the governor to countermand the warrant he has issued for his arrest.
If he should refuse so to do, I am clearly of the opinion that, upon the above state of facts, the supreme court will discharge him upon habeas corpus.
Respectfully your obedient servant,
The foregoing letter of Mr. Butterfield (United States' attorney for the district of Illinois,) shows, in a very lucid manner, what our rights and privileges are, pertaining to the habeas corpus, and accords with the opinion of every intelligent man,—the opinions of ex-Governor Boggs, Governor Reynolds, of Missouri, and Governor Carlin, to the contrary, notwithstanding.