The Prophet at Springfield, Illinois—His Conversations and Interviews—Proceedings on Writ of Habeas Corpus before Judge Pope—Release of the Prophet by Order of the Court and the Executive Order of Governor Ford—Official Papers in the Case.
Second Arrest of the Prophet on the Boggs Affair.
Monday, December 26, 1842.—In the morning, held court, and I was afterwards arrested by General Wilson Law, on the proclamation of Governor Carlin, and Elders Henry G. Sherwood; and William Clayton went to Carthage to obtain a writ of habeas corpus to take me before the court at Springfield. General Law gave me into the custody of Dr. Richards, with whom I visited Sister Morey, who was severely afflicted. We prescribed lobelia for her, among other things, which is excellent in its place. I have learned the value of it by my own experience. It is one of the works of God, but, like the power of God, or any other good, it becomes an evil when improperly used. Brother Morey gave me a walking stick, the body of which was from the tooth of the sperm whale, and the top of whale ivory, with an interstice of mahogany. On my return home, I found my wife Emma sick. She was delivered of a son, which did not survive its birth.
The Herefordshire conference (England) under the presidency of Elder William Kay, met at Colwall, numbering eight hundred and forty-four members, including twenty elders, fifty-three priests, twenty-two teachers, and ten deacons.
The Prophet’s Start for Springfield.
Tuesday, 27.—At nine in the morning, started in custody of Wilson Law for Springfield, in company with Hyrum Smith, Willard Richards, John Taylor, William Marks, Levi Moffit, Peter Haws, Lorin Walker and Orson Hyde. On our way to Carthage, we met William Clayton and Henry G. Sherwood, who had obtained an order for a writ of habeas corpus from the master in chancery, as no writ could issue, the clerk of court having been elected to the State Senate.
The Prophet’s Dream.
There was considerable snow, and the traveling heavy; but we arrived at my Brother Samuel’s, in Plymouth, a little after sunset, and we were soon joined by Edward Hunter, Theodore Turley, Dr. Tate, and Shadrach Roundy. I supped with Brother William Smith’s family, who lived under the same roof, slept with Dr. Willard Richards on a buffalo skin spread upon the floor, and dreamed that I was by a beautiful stream of water and saw a noble fish, which I threw out. Soon after, I saw a number more, and threw them out. I afterwards saw a multitude of fish, and threw out a great abundance, and sent for salt and salted them.
Wednesday, 28.—The morning was wet. We started about eight o’clock, and arrived at Mr. Stevenson’s tavern, in Rushville, at three in the afternoon, about twenty miles. Brother William’s wife, who was sick, went with us, accompanied by Sister Durphy, who went with us from Nauvoo to take care of her. I spent a part of the evening with Mr. Uriah Brown and family and a part of my company. In conversation respecting the repeal of charters, I told them that to touch the Nauvoo Charter was no better than highway robbery; and that I never would consent to lowering our charter, but they might bring other chapters up to it. On my return to the tavern, the brethren took my height, which was six feet, and my Brother Hyrum’s the same.
Thursday, 29.—Started early; crossed the Illinois river at eleven, and arrived at Captain Dutche’s before five in the evening, about thirty-two miles: the weather extremely cold. General Law asked why the sun was called by a masculine name and the moon by a feminine one. I replied that the root of masculine is stronger, and of feminine weaker. The sun is a governing planet to certain planets, while the moon borrows her light from the sun, and is less or weaker.
Let the government of Missouri redress the wrongs she has done to the Saints, or let the curse follow them from generation to generation until they do.
A Missouri Reminiscence.
When I was going up to Missouri, in company with Elder Rigdon and our families, on an extreme cold day, to go forward was fourteen miles to a house, and backward nearly as far. We applied to aIl the taverns for admission in vain: we were “Mormons,” and could not be received. Such was the extreme cold that in one hour we must have perished. We pleaded for our women and children in vain. We counseled together, and the brethren agreed to stand by me, and we concluded that we might as well die fighting as to freeze to death.
I went into a tavern and pleaded our cause to get admission. The landlord said he could not keep us for love or money. I told him we must and would stay, let the consequence be what it might; for we must stay or perish. The landlord replied, “We have heard the Mormons are very bad people; and the inhabitants of Paris have combined not to have anything to do with them, or you night stay.” I said to him, “We will stay; but no thanks to you. I have men enough to take the town; and if we must freeze, we will freeze by the burning of these houses.” The taverns were then opened, and we were accommodated, and received many apologies in the morning from the inhabitants for their abusive treatment.
The Prophet Meets Justin Butterfield et al.
Friday, 30.—Started at eight this morning, and arrived at Judge Adams’, in Springfield, at half past two o’clock in the afternoon, where I saw Justin Butterfield, Esq., United States district attorney, who told me that Judge Pope had continued the court two or three days on account of my case, and would close on the morrow, and that he should try my case on its merits, and not on any technicality.
Sheriff Pitman, of Adams county, was in the place, but would not say whether he had the original writ which had previously been demanded of the officers of Adams county, King and Pitman. I gave Mr. Butterfield a general history of my Missouri persecution, and it was agreed by him that I should be arrested on the writ. Had an interview with my Brother, William Smith, who was a member of the Legislature at the time, and spent the evening with Judge Adams and the brethren from Nauvoo. We all lodged at Judge Adams’.
The Reign of Christ on Earth Expounded.
While in conversation at Judge Adams’ during the evening, I said, Christ and the resurrected Saints will reign over the earth during the thousand years. They will not probably dwell upon the earth, but will visit it when they please or when it is necessary to govern it. There will be wicked men on the earth during the thousand years. The heathen nations who will not come up to worship will be visited with the judgments of God, and must eventually be destroyed from the earth.
The Prophet’s Trial Before Judge Pope.
Saturday, 31.—At nine in the morning, Mr. Butterfield called and informed me that King had the original writ, and I signed a petition to Governor Ford to issue a new writ, that my case may be tried thereon, as well as on the proclamation. My petition was granted, and at eleven o’clock I was arrested thereon by a deputy, Mr. Maxey, in presence of Mr. Butterfield, my attorney, who immediately wrote a petition to Judge Pope for a writ of habeas corpus, which I signed, and at half-past eleven in the morning went before Judge Pope.
Mr. Butterfield read my petition, and stated that the writ and warrant were different from the requisition of the governor of Missouri. He then read Governor Ford’s warrant, Watson’s affidavit; Governor Reynolds’ requisition on the governor of Illinois, and the proclamation of Governor Carlin, showing that Reynolds had made a false statement, as nothing appeared in the affidavits to show that Smith was in Missouri. He also stated that all the authority for transportation of persons from one state to another rests on the Constitution and the law of Congress. We ask for habeas corpus because the papers are false, and because that we can prove that Joseph Smith was in this state at the time of the commission of the crime.
The writ was granted, returned, and served in one minute, and I walked up to the bar. Mr. Butterfield read the habeas corpus, and moved the court to take bail till I could have a hearing,—which was granted; and although it was only a case of misdemeanor, Generals James Adams and Wilson Law were bailed for me in the sum of $2,000 each, and Monday was set for trial.
A Disturbance Threatened.
The court-room was crowded; and, on our returning, as General Law came to the top of the stairs, one of the crowd observed, “There goes Smith the Prophet, and a good looking man he is;” “And [said another] as damned a rascal as ever lived.” Hyrum replied, “And a good many ditto.” “Yes, [said the man,] ditto, ditto, G—d—you; and every one that takes his part is as damned a rascal as he is.”
When at the foot of the stairs, General Law said, “I am the man, and I’ll take his part.” Said the man, “You are a damned rascal too.” “You are a lying scoundrel,” replied Law; and the man began to strip off his clothes and ran out in the street, cursing and swearing, and raising a tumult, when Mr. Prentice, the marshal, interfered, and with great exertions quelled the mob. Much credit is due Mr. Prentice for his zeal to keep the peace.
The Prophet’s Interview with Governor Ford.
When the rowdies had dispersed, I went with Mr. Butterfield and Dr. Richards to see Governor Ford, who was sick. He told me he had a requisition from the governor for a renewal of persecution in the old case of treason against Missouri; but he happened to know that it was all dead. We dined with Mr. Butterfield at the American House, where the governor quartered, after which we returned to the general’s room. In course of conversation he remarked he was no religionist. I told him I had no creed to circumscribe my mind; therefore the people did not like me. “Well, [said the general,] from reports, we had reason to think the Mormons were a peculiar people, different from other people, having horns or something of the kind; but I find they look like other people: indeed, I think Mr. Smith a very good-looking man.”
At two in the afternoon, I returned to Judge Adams’, and appointed Elders Hyde and Taylor to preach in the Representatives’ Hall on the morrow.
A Discussion with Judge Douglas.
Judge Douglas stated that it was possible to revoke political charters, but not company charters. I argued that if a legislature has power to grant a charter for ten years It has no power to revoke it until the expiration thereof. The same principle will hold good for twenty or one hundred years, and also for a perpetual charter: it cannot be revoked in time.
The Brewster Movement.
John Darby came in and said he was going to California with Brewster. I told him I would say, as the Prophet said to Hezekiah, “Go, and prosper; but ye shall not return in peace.” Brewster may set out for California, but he will not get there unless somebody shall pick him up by the way, feed him and help him along. Brewster showed me the manuscript he had been writing. I inquired of the Lord, and the Lord told me the book was not true—it was not of Him. If God ever called me, or spake by my mouth, or gave me a revelation, he never gave revelations to that Brewster boy 1 or any of the Brewster race.
This afternoon, a team ran away, and went past the State House, when the hue-and-cry was raised, “Joe Smith is running away!” which produced great excitement and a sudden adjournment of the House of Representatives.
Chief Distinction between the Saints and Sectarians.
Sunday morning, January 1, 1843.—The speaker of the House of Representatives called on me to say we might have the hall for preaching this day. Had a pleasant interview with Mr. Butterfield, Judge Douglas, Senator Gillespie, and others. In reply to Mr. Butterfield, I stated that the most prominent difference in sentiment between the Latter-day Saints and sectarians was, that the latter were all circumscribed by some peculiar creed, which deprived its members the privilege of believing anything not contained therein, whereas the Latter-day Saints have no creed, but are ready to believe all true principles that exist, as they are made manifest from time to time.
At the suggestion of the company, I explained the nature of a prophet.
A Prophet Defined.
If any person should ask me if I were a prophet, I should not deny it, as that would give me the lie; for, according to John, the testimony of Jesus is the spirit of prophecy; therefore if I profess to be a witness or teacher, and have not the spirit of prophecy, which is the testimony of Jesus, I must be a false witness; but if I be a true teacher and witness, I must possess the spirit of prophecy, and that constitutes a prophet; and any man who says he is a teacher or preacher of righteousness, and denies the spirit of prophecy, is a liar, and the truth is not in him; and by this key false teachers and imposters may be detected.
At half-past eleven a.m., we repaired to the Representatives’ Hall, where Elder Orson Hyde read the hymn “Rejoice ye Saints of Latter Days.” Elder Taylor followed in prayer. The Saints then sang “The Spirit of God like a fire is burning.” Elder Hyde then preached from the 3rd chapter of Malachi. Most of the members of the Legislature and the various departments of the state were in attendance.
Mormon Services at Springfield.
I dined with Judge Adams at one p.m., and at half-past two returned to the hall, and heard Elder Taylor preach from Revelation 14th chapter, 6th and 7th verses on the first principles of the Gospel. There was a respectable congregation, who listened with good attention, notwithstanding the great anxiety to “see the Prophet.”
I supped at Brother Bowman’s, where I saw Sister Lucy Stringham (who was one of the first fruits of the Church at Colesville, New York,) and many more of the Saints. At seven I returned to Judge Adams’.
Monday, 2.—After breakfasting with Judge Adams, I prophesied, in the name of the Lord, that I should not go to Missouri dead or alive. At half-past nine a.m., repaired to the court-room; and at ten, Judge Pope took his seat on the bench, accompanied by several ladies.
My case was called up, when Mr. Lamborn, the attorney-general of Illinois, requested the case to be continued till the next day, and Wednesday morning was set for my trial. My attorney, Mr. Butterfield, filed some objections to points referred to in the habeas corpus, and, half-past ten, I repaired to the Senate lobby, and had conversation with several gentlemen. Dined at the American House. As we rose from table, Judge Brown invited me to his room, and informed me he was about publishing a history of Illinois, and wished me to furnish a history of the rise and progress of the Church of Latter-day Saints to add to it.
General Sentiment of the Prophet’s Innocence.
At half-past one p.m. returned to General Adams. A gentleman from St. Louis told General Law that the general impression was that Smith was innocent, and it would be a kind of murder to give him up—that “he ought to be whipped a little and let go.” It was evident that prejudice was giving way in the public mind.
At four, Mr. Lamborn, Mr. Prentice, the marshal, and some half dozen others called to see me. The marshal said it was the first time during his administration that the ladies had attended court on a trial. A peculiarly pleasant and conciliatory feeling prevailed in the company, and the marshal invited me to a family dinner, when I should be freed.
The Prophet’s View of the Negro Race.
At five went to Mr. Sollars’ with Elders Hyde and Richards. Elder Hyde inquired the situation of the negro. I replied, they came into the world slaves mentally and physically. Change their situation with the whites, and they would be like them. They have souls, and are subjects of salvation. Go into Cincinnati or any city, and find an educated negro, who rides in his carriage, and you will see a man who has risen by the powers of his own mind to his exalted state of respectability. The slaves in Washington are more refined than many in high places, and the black boys will take the shine of many of those they brush and wait on.
Elder Hyde remarked, “Put them on the level, and they will rise above me.” I replied, if I raised you to be my equal, and then attempted to oppress you, would you not be indignant and try to rise above me, as did Oliver Cowdery, Peter Whitmer, and many others, who said I was a fallen Prophet, and they were capable of leading the people, although I never attempted to oppress them, but had always been lifting them up? Had I anything to do with the negro, I would confine them by strict law to their own species, and put them on a national equalization.
The World’s Lack of Faith.
Because faith is wanting, the fruits are. No man since the world was had faith without having something along with it. The ancients quenched the violence of fire, escaped the edge of the sword, women received their dead, &c. By faith the worlds were made. A man who has none of the gifts has no faith; and he deceives himself, if he supposes he has. Faith has been wanting, not only among the heathen, but in professed Christendom also, so that tongues, healings, prophecy, and prophets and apostles, and all the gifts and blessings have been wanting.
The Meekness of a Prophet.
Some of the company thought I was not a very meek Prophet; so I told them: “I am meek and lowly in heart,” and will personify Jesus for a moment, to illustrate the principle, and cried out with a loud voice, “Woe unto you, ye doctors; woe unto you, ye lawyers; woe unto you, ye scribes, Pharisees, and hypocrites!” &c. But you cannot find the place where I ever went that I found fault with their food, their drink, their house, their lodgings; no, never; and this is what is meant by the meekness and lowliness of Jesus.
A Sample of Folly.
Mr. Sollars stated that James Mullone, of Springfield, told him as follows:—”I have been to Nauvoo, and seen Joe Smith, the Prophet: he had a gray horse, and I asked him where he got it; and Joe said, “You see that white cloud.” “Yes.” “Well, as it came along, I got the horse from that cloud.” This is a fair specimen of the ten thousand foolish lies circulated by this generation to bring the truth and its advocates into disrepute.
The Prophet’s Ilustration.
What is it that inspires professors of Christianity generally with a hope of salvation? It is that smooth, sophisticated influence of the devil, by which he deceives the whole world. But, said Mr. Sollars, “May I not repent and be baptized, and not pay any attention to dreams, visions, and other gifts of the Spirit?” I replied: Suppose I am traveling and am hungry and meet with a man and tell him I am hungry, and he tells me to go yonder, there is a house of entertainment, go and knock, and you must conform to all the rules of the house, or you cannot satisfy your hunger; knock, call for food, sit down and eat;—and I go and knock, and ask for food, and sit down to the table, but do not eat, shall I satisfy my hunger? No. I must eat. The gifts are the food; and the graces of the Spirit are the gifts of the Spirit. When I first commenced this work, and had got two or three individuals to believe, I went about thirty miles with Oliver Cowdery, to see them. We had only one horse between us. When we arrived, a mob of about one hundred men came upon us before we had time to eat, and chased us all night; and we arrived back again a little after daylight, having traveled about sixty miles in all, and without food. I have often traveled all night to see the brethren ; and, when traveling to preach the Gospel among strangers, have frequently been turned away without food.”
Thus the evening was spent in conversation and teaching, and closed by singing and prayer, when we parted, and Elders Hyde, Richards and myself lay down upon a bed on the floor, and enjoyed refreshing rest till morning.
Conversations with Prominent Men.
Tuesday, 3.—After breakfast, called on Sister Crane, and blessed her little baby, Joseph Smith Crane, and returned to Judge Adams’, where we conversed with Messrs. Trobridge, Jonas, Browning, and others, on my old Missouri case of treason. At half-past nine, went to the court-room, and had conversation with Messrs. Butterfield, Owen, Pope, Prentice, and others.
At twelve, returned and spent the afternoon at Judge Adams’. At dusk, the marshal called with subpoenas for my witnesses. Spent the evening with the brethren at Judge Adams’ in a very social manner, and prophesied in the name of the Lord that no very formidable opposition would be raised at my trial on the morrow. Slept on a sofa as usual while at Springfield.
Procedure of Trial.
Wednesday, 4.—At nine o’clock a.m., repaired to the court-room, Judge Pope on the bench, and ten ladies by his side, when Josiah Lamborn, attorney-general of the state of Illinois, appeared and moved to dismiss the proceedings, and filed the following objections to the jurisdiction of the court,—viz.;
Objection of Jurisdiction.
1. The arrest and the 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 officers 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 enquire into any facts behind the writ.
My counsel then offered to read, in evidence, affidavit; of several persons, showing conclusively that I was at Nauvoo, in the county of Hancock, and state of Illinois on the whole of the 6th and 7th days of May, in the year 1842, and on the evenings of those days more than three hundred miles distant from Jackson county, in the state of Missouri, where it is alleged that the said Boggs was shot; and that I had not been in the state of Missouri at any time between the 10th day of February and the 1st day of July, 1842, the said persons having been with me during the whole of that period. That on the 6th day of May aforesaid, I attended an officer’s drill at Nauvoo aforesaid, in the presence of a large number of people; and on the 7th day of May aforesaid I reviewed the Nauvoo Legion in presence of many thousand people.
The reading of these affidavits was objected to by the attorney-general of the state of Illinois, on the grounds that it was not competent for Smith to impeach or contradict the return of the habeas corpus. It was contended by my counsel, 1st, that I had a right to prove that the return was untrue. 2nd, that the said affidavits did not contradict the said return, as there was no averment under the oath in said return that I was in Missouri at the time of the commission of the alleged crime, or had fled from the justice of that state. The court decided that the said affidavits should be read in evidence, subject to all objections; and they were read accordingly, all of which will appear on my discharge. B. S. Edwards, Esq., opened the defense in an animated speech, and made some very pathetic allusions to our sufferings in Missouri, followed by Mr. Butterfield, who made the following points:—
Summary of Counsel Butterfield’s Argument.
1. This court has jurisdiction. The requisition purports on its face to be made, and the warrant to be issued, under the constitution and laws of the United States regulating the surrender of fugitives from justice, 2nd sec., 4th article Constitution of the United States, 1st sec. of the Act of Congress of 12th Feb., 1793. When a person’s rights are invaded under a law of the United States, he has no remedy except in the courts of the United States, 2nd sec., 3rd article Constitution United States, 12th Wendall, 325—16 Peters, 543.
The whole power in relation to the delivering up of fugitives from justice and labor has been delegated to the United States, and Congress has regulated the manner and form in which it shall be exercised. The power is exclusive. The State Legislatures have no right to interfere; and if they do, their acts are void, 2nd and 3rd clause of 2nd sec., 4th article Constitution United States, 2nd vol. Laws United States 331—16 Peters, 617, 618, 623; 4th Wheaton’s Reports, 122, 193-12; Wendall, 312.
All courts of the United States are authorized to issue writs of habeas corpus when the prisoner is confined under or by color of authority of the United States, Act of Congress of Sept. 24th, 1789, sec. 14; 2nd Condensed 33; 3rd Cranch, 447; 3rd Peters, 193.
2. The return to the habeas corpus is not certain and sufficient to warrant the arrest and transportation of Smith. In all cases on habeas corpus previous to indictment, the court will look into the depositions before the magistrate; and though the commitment be full and in form, yet, if the testimony prove no crime, the court will discharge ex-parte;Taylor 5th; Cowen 50. The affidavit of Boggs does not show that Smith was charged with any crime committed by him in Mo., nor that he was a fugitive from justice. If the commitment be for a matter for which by law the prisoner is not liable to be punished, the court must discharge him; 3rd Bacon, 434. The executive of this state has no jurisdiction over the person of Smith to transport him to Missouri, unless he has fled from that state.
3. The prisoner has a right to prove facts not repugnant to the return, and even to go behind the return and contradict it, unless committed under a judgment of a court of competent jurisdiction; 3rd Bacon, 435, 438; 3rd Peters, 202; Gale’s revised laws of Illinois, 323. The testimony introduced by Smith at the hearing, showing conclusively that he was not a fugitive from justice, is not repugnant to the return.
J. Lamborn, attorney-general of the state of Illinois, in support of the points made by him, cited 2nd Condensed Reports, 37; Gordon’s Digest, 73; Gale’s Statutes of Illinois, 318; Conkling, 85; 9th Wendall, 212.
The Plea of Mr. Butterfield.
In the course of his plea, Mr. Butterfield showed that Governor Reynolds had subscribed to a lie in his demand for me, as will appear in the papers, [published in this chapter]; and said that Governor Carlin would not have given up his dog on such a requisition. That an attempt should be made to deliver up a man who has never been out of the state, strikes at all the liberty of our institutions. His fate today may be yours tomorrow. I do not think the defendant ought, under any circumstances, to be given up to Missouri. It Is a matter of history that he and his people have been murdered or driven from the state. If he goes there, it is only to be murdered, and he had better be sent to the gallows. He is an innocent and unoffending man. If there is a difference between him and other men, it is that this people believe in prophecy, and others do not; the old prophets prophesied in poetry and the modern in prose.
Esquire Butterfield managed the case very judiciously. The court-room was crowded during the whole trial; the utmost decorum and good feeling prevailed, and much prejudice was allayed. Esquire Lamborn was not severe, apparently saying little more than his relation to the case demanded.
The Treatment of the Prophet at Springfield.
Court adjourned till tomorrow nine a.m., for the making up of opinion. After an introduction to several persons, I retired to Judge Adams’, and after dinner spent some time in conversation with Brother Hyrum and Theodore Turley. At half-past five o’clock I rode in Mr. Prentice’s carriage to his house, accompanied by General Law and Elder Orson Hyde, where I had a very interesting visit with Mr. Prentice and family, Judge Douglas, Esquires Butterfield, Lamborn and Edwards, Judge Pope’s son, and many others; partook of a splendid supper; there were many interesting anecdotes, and everything to render the repast and visit agreeable; and returned to Judge Adams’ about eleven o’clock.
Thursday, 5.—At nine a.m., repaired to the courtroom, which was crowded with spectators anxious to “behold the Prophet,” and hear the decision of Judge Pope, who soon took his seat, accompanied by half-a-dozen ladies, and gave the following:
Opinion of Judge Pope.
The importance of this case, and the consequences which may flow from an erroneous precedent, affecting the lives and liberties of our citizens, have impelled the court to bestow upon it the most anxious consideration. The able arguments of the counsel for the respective parties have been of great assistance in the examination of the important question arising in this cause.
When the patriots and wise men who framed our Constitution were in anxious deliberation to form a perfect union among the states of the confederacy, two great sources of discord presented themselves to their consideration—the commerce between the states and fugitives from justice and labor.
The border collisions in other countries have been seen to be a fruitful source of war and bloodshed, and most wisely did the constitution confer upon the national government the regulation of those matters, because of its exemption from the excited passions awakened by conflicts between neighboring states, and its ability alone to adopt a uniform rule, and establish uniform laws among all the states in those cases.
This case presents the important question arising under the Constitution and laws of the United States, whether a citizen of the state of Illinois can be transported from his own state to the state of Missouri, to be there tried for a crime, which, if he ever committed, was committed in the state of Illinois; whether he can be transported to Missouri, as a fugitive from justice, when he has never fled from that state.
Joseph Smith is before the court on habeas corpus, directed to the sheriff of Sangamon county, state of Illinois. The return shows that he is in custody under a warrant from the executive of Illinois, professedly issued in pursuance of the Constitution and laws of the United States and of the state of Illinois, ordering said Smith to be delivered to the agent of the executive of Missouri, who had demanded him as a fugitive from justice, under the 2nd section, 4th article of the Constitution of the United States, and the act of Congress passed to carry into effect that article.
The article is in these words, viz.:—”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 crime.”
The act of Congress made to carry into effect this article directs that the demand be made on the executive of the state where the offender is found, and prescribes the proof to support the demand,—viz., indictment or affidavit.
The court deemed it respectful to inform the governor and attorney-general of the state of Illinois of the action upon the habeas corpus. On the day appointed for the hearing, the attorney-general for the state of Illinois appeared and denied the jurisdiction of the court to grant the habeas corpus. 1st. Because the warrant was not issued under color or by authority of the United States, but by the state of Illinois. 2nd. Because no habeas corpus can issue in this case from either the Federal or State Courts to inquire into facts behind the writ.
In support of the first point, a law of Illinois was read, declaring that whenever the executive of any other state shall demand of the executive of this state any person as a fugitive from justice, and shall have complied with the requisition of the act of Congress in that case made and provided, it shall be the duty of the executive of this state to issue his warrant to apprehend the said fugitive, &c. It would seem that this act does not purport to confer any additional power upon the executive of this state independent of the power conferred by the Constitution and laws of the United States, but to make it the duty of the executive to obey and carry into effect the act of Congress.
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. To maintain the position that this warrant was not issued under color or by authority of the laws of the United States, it must be proved that the United States could not confer the power on the executive of Illinois; because if Congress could and did confer it, no act of Illinois could take it away, for the reason that the Constitution and laws of the United States, passed in pursuance of it, and treaties, are the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. This is enough to dispose of that point.
If the Legislature of Illinois, as is probable, intended to make it the duty of the governor to exercise the power granted by Congress, and no more, the executive would be acting by authority of the United States. It may be that the Legislature of Illinois, appreciating the importance of the proper execution of those laws, and doubting whether the governor could be punished for refusing to carry them into effect, deemed it prudent to impose it as a duty, the neglect of which would expose him to impeachment. If it intended more, the law is unconstitutional and void—16 Peters, 617 Prigg versusPennsylvania.
In supporting the second point, the attorney-general seemed to urge that there was greater sanctity in a warrant issued by the governor than by an inferior officer. The court cannot assent to this distinction.
This is a government of laws, which prescribes a rule of action as obligatory upon the governor as upon the most obscure officer. The character and purposes of the habeas corpus are greatly misunderstood by those who suppose that it does not review the acts of an executive functionary. All who are familiar with English history must know that it was extorted from an arbitrary monarch, and that it was hailed as a second Magna Charta; and that it was to protect the subject from arbitrary imprisonment by the king and his minions, which brought into existence that great palladium of liberty in the latter part of the reign of Charles the Second. It was indeed a magnificent achievement over arbitrary power. Magna Charta established the principles of liberty—the habeas corpus protected them. It matters not how great or obscure the prisoner, how great or obscure the prison-keeper, this munificent writ, wielded by an independent judge, reaches all. It penetrates alike the royal towers and the local prisons, from the garret to the secret recesses of the dungeon. All doors fly open at its command, and the shackles fall from the limbs of prisoners of state as readily as from those committed by subordinate officers. The warrant of the king and his secretary of state could claim no more exemption from that searching inquiry, “The cause of his caption and detention,” than a warrant granted by a justice of the peace. It is contended that the United States is a government of granted powers, and that no department of it can exercise powers not granted. This is true. But the grant is to be found in the second section of the third article of the Constitution of United States:—”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.”
The matter under consideration presents a case arising under the 2nd section, 4th article of the Constitution of the United States; 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 United States,) power to issue the writ of habeas corpus, when a person is confined, “under color of, or by the authority of the United States.” Smith is in custody under color of, and by authority of the 2nd section, 4th article of the Constitution of the United States. As to the instrument employed or authorized 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 United States. The power is not officially 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 United States; hence the United States 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 sheriff shows that he has arrested and now holds in custody Joseph Smith, in virtue of a warrant issued by the Governor of Illinois, under the 2nd section of the 4th article of the Constitution of the United States, 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 for the fugitive shall be made, nor does it prescribe the proof upon which he shall act. But Congress has done so. The proof is “an indictment or affidavit,” to be certified by the governor demanding. The return brings before the court the warrant, the demand and affidavit. The material part of the latter is in these words, viz.—
“Lilburn W. Boggs, who being duly sworn, doth depose and say that on the night of the 6th day of May, 1842, while sitting in his dwelling, in the town of Independence, in the county of Jackson, he was shot with intent to kill; and that his life was despaired of for several days; and that he believes, and has good reason to believe from evidence and information now in his possession, that Joseph Smith, commonly called the ‘Mormon Prophet,’ was accessory before the fact of the intended murder, and that the said Joseph Smith is a citizen or resident of the state of Illinois.”
This affidavit is certified by the governor of Missouri to be authentic. The affidavit being thus verified, furnished the only evidence upon which the governor of Illinois could act. Smith presented affidavits proving that he was not in Missouri at the date of the shooting of Boggs.
This testimony was objected to by the attorney-general of Illinois, on the ground that the court could not look behind the return. The court deems it unnecessary to decide that point, inasmuch as it thinks Smith entitled to his discharge for defect in the affidavit.
To authorize the arrest in this case, the affidavit should have stated distinctly—1st, that Smith had committed a crime; 2nd, that he committed it in Missouri.
It must appear that he fled from Missouri to authorize the governor of Missouri to demand him, as none other than the governor of the state from which he fled can make the demand. He could not have fled from justice unless he committed a crime, which does not appear. It must appear that the crime was committed in Missouri, to warrant the governor of Illinois in ordering him to be sent to Missouri for trial.
The 2nd section, 4th article, declares he “shall be removed to the state having jurisdiction of the crime.” As it is not charged that the crime was committed by Smith in Missouri, the governor of Illinois could not cause him to be removed to that state, unless it can be maintained that the state of Missouri can entertain jurisdiction of crimes committed in other states. The affirmative of this proposition was taken in the argument with a zeal indicating sincerity. But no adjudged case or dictum was adduced in support of it. The court conceives that none can he. Let it be tested by principle.
Man, in a state of nature, is a sovereign, with all the prerogatives of king, lords, and commons. He may declare war and make peace, and as nations often do who “feel power and forget right,” may oppress, rob, and subjugate his weaker and unoffending neighbors. He unites in his person, the legislative, judicial, and executive power; “can do no wrong,” because there is none to hold him to account. But when he unites himself with a community, he lays down all the prerogatives sovereign (except self defense,) and becomes a subject. He owes obedience to its laws and the judgments of its tribunals, which he is supposed to have participated in establishing, either directly or indirectly. He surrenders also the right of self-redress.
In consideration of all which, he is entitled to the aegis of that community to defend him from wrongs. He takes upon himself no allegiance to any other community, so owes it no obedience, and therefore cannot disobey it. None other than his own sovereign can prescribe a rule of action to him. Each sovereign regulates the conduct of its subjects, and they may be punished upon the assumption that they have known the rule, and have consented to be governed by it; it would be a gross violation of the social compact if the state were to deliver up one of its citizens to be tried and punished by a foreign state to which he owes no allegiance, and whose laws were never binding on him. No state can or will do it.
In the absence of the constitutional provision, the state of Missouri would stand on this subject in the same relation to the state of Illinois that Spain does to England. In this particular, the states are independent of each other; a criminal fugitive from one state to another could not be claimed as of right to be given up.
It is most true, as mentioned by writers on the laws of nations that every state is responsible to its neighbors for the conduct of its citizens so far as their conduct violates the principles of good neighborhood; so it is among private individuals. But for this, the inviolability of territory or private dwellings could not be maintained. This obligation creates the right and makes it the duty of the state to impose such restraints upon the citizen as the occasion demands.
It was in the performance of this duty that the United States passed laws to restrain citizens of the United States from setting on foot and fitting out military expeditions against their neighbors. While the violators of this law kept themselves within the United States the conduct was cognizable in the courts of the United States, and not of the offended state, even if the means provided had assisted in the invasion of the foreign state. A demand by the injured state upon the United States for the offenders whose operations were in their own country would be answered that the United States’ laws alone could act upon them, and that as a good neighbor it would punish them.
It is the duty of the state of Illinois to make it criminal in one of its citizens to aid, abet, counsel or advise any person to commit a crime in her sister state. Any one violating the law would be amenable to the laws of Illinois, executed by its own tribunals. Those of Missouri could have no agency in his conviction and punishment. But if he shall go into Missouri he owes obedience to her laws, and is liable before her courts to be tried and punished for any crime he may commit there; and a plea that he was a citizen of another state would not avail him. If he escape, he may be surrendered to Missouri for trial. But when the offense is perpetrated in Illinois, the only right of Missouri is to insist that Illinois compel her citizens to forbear to annoy her. This she has a right to expect. For the neglect of it, nations go to war and violate territory.
The court must hold that where a necessary fact is not stated in the affidavit, it does not exist. It is not averred that Smith was accessory before the fact, in the state of Missouri, nor that he committed a crime in Missouri; therefore he did not commit the crime in Missouri, did not flee from Missouri to avoid punishment.
Again the affidavit charges the shooting on the 6th of May, in the county of Jackson, and state of Missouri, “that he believes, and has good reason to believe from evidence and information now (then) in his possession, that Joseph Smith was accessory before the fact, and is a resident or citizen of Illinois.”
There are several objections to this. Mr. Boggs having the “evidence and information in his possession,” should have incorporated it in the affidavit, to enable the court to judge of their sufficiency to support his “belief.”
Again, he swears to a legal conclusion, when he says that Smith was accessory before the fact. What acts constitute a man an accessory in a question of law are not always of easy solution. Mr. Boggs’ opinion, then, is not authority. He should have given the facts. He should have shown that they were committed in Missouri, to enable the court to test them by the laws of Missouri, to see if they amounted to a crime.
Again the affidavit is fatally defective in this, that Boggs swears to his belief. The language in the Constitution is, “Charged with felony or other crime.” Is the Constitution satisfied with a charge upon suspicion?
It is to be regretted that no American adjudged case has been cited to guide the court in expounding this article. Language is ever interpreted by the subject matter. If the object were to arrest a man near home, and there were fears of escape if the movement to detain him for examination were known, the word charged might warrant the issuing of a capias on suspicion. Rudyard (reported in Skinner 676), was committed to Newgate for refusing to give bail for his good behavior, and was brought before common pleas on habeas corpus. The return was that he had been complained of for exciting the subjects to disobedience of the laws against seditious conventicles; and upon examination they foundcause to suspect him. Vaughan, Chief Justice, “Tyrell and Archer against Wild,” held the return insufficient; 1st, because it did not appear but that he might abet frequenters of conventicles in the way the law allows; 2nd, to say that he was complained of or was examined is no proof of his guilt. And then to say that he had cause to suspect him is too cautious; for who can tell what they count a cause of suspicion, and how can that ever be tried? At this rate they would have arbitrary power upon their own allegation, to commit whom they pleased.”
From this case it appears that suspicion does not warrant a commitment, and that all legal intendments are to avail the prisoner: that the return is to be most strictly construed in favor of liberty. If suspicion in the foregoing case did not warrant a commitment in London by its officers, of a citizen of London, might not the objection be urged with greater force against the commitment of a citizen of our state to be transported to another on suspicion?
No case can arise demanding a more searching scrutiny into the evidence, than in cases arising under this part of the Constitution of the United States. It is proposed to deprive a freeman of his liberty; to deliver him into the custody of strangers; to be transported to a foreign state, to be arraigned for trial before a foreign tribunal, governed by laws unknown to him; separated from his friends, his family, and his witnesses, unknown and unknowing. Had he an immaculate character, it would not avail him with strangers. Such a spectacle is appalling enough to challenge the strictest analysis.
The framers of the Constitution were not insensible of the importance of courts possessing the confidence of the parties. They therefore provided that citizens of different states might resort to the Federal Courts in civil causes. How much more important that the criminal have confidence in his judge and jury. Therefore, before the capias is issued, the officers should see that the case is made out to warrant it. Again, Boggs was shot on the 6th of May, the affidavit was made on the 20th of July following. Here was time for enquiry which would confirm into certainty, of dissipate his suspicions. He had time to collect facts to be had before a grand jury, or be incorporated in his affidavit.
The court is bound to assume that this would have been the course of Mr. Boggs; but that his suspicions were light and unsatisfactory. The affidavit is insufficient, 1st, because it is not positive; 2nd because it charges no crime; 3rd, because it charges no crime committed in the state of Missouri. Therefore, he [Joseph Smith] did not flee from the justice of the state of Missouri, nor has he taken refuge in the state of Illinois.
The proceedings in this affair, from the affidavit to the arrest, afford a lesson to governors and judges whose action may hereafter be invoked in cases of this character. The affidavit simply says that the affiant was shot with intent to kill; and he believes that Smith was accessory before the fact to the intended murder, and is a citizen or resident of the state of Illinois. It is not said who shot him, or that the person was unknown. The governor of Missouri, in his demand, calls Smith a fugitive from justice, charged with being accessory before the fact to an assault with intent to kill, made by one O. P. Rockwell, on Lilburn W. Boggs, in this state (Missouri). This governor expressly refers to the affidavit as his authority for that statement.
Boggs, in his affidavit, does not call Smith a fugitive from justice, nor does he state a fact from which the governor had a right to infer it, neither does the name of O. P. Rockwell appear in the, affidavit, nor does Boggs say Smith fled. Yet the governor says he has fled to the State of Illinois. But Boggs only says he is a citizen or resident of the state of Illinois. The governor of Illinois responding to the demand of the executive of Missouri for the arrest of Smith, issues his warrant for the arrest of Smith, reciting that “whereas Joseph Smith stands charged by the affidavit of Lilburn W. Boggs with being accessory before the fact to an assault, with intent to kill, made by one O. P. Rockwell, on Lilburn W. Boggs, on the night or the 6th day of May, 1842, at the county of Jackson, in said state of Missouri; and that the said Joseph Smith has fled from the justice of said state, and taken refuge in the slate of Illinois.”
Those facts do not appear by the affidavit of Boggs. On the contrary, it does not assert that Smith was accessory to O. P. Rockwell, nor that he had fled from the justice of the state of Missouri, and taken refuge in the state of Illinois.
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.
At the request of J. Butterfield, counsel for Smith, it is proper to state, in justice to the present executive of the state of Illinois, Governor Ford, that it was admitted on the argument that the warrant which originally issued upon the said requisition was issued by his predecessor; that when Smith came to Springfield to surrender himself up upon that warrant, it was in the hands of the person to whom it had been issued at Quincy, in this state; and that the present warrant which is a copy of the former one, was issued at the request of Smith, to enable him to test its legality by writ of habeas corpus.
Let an order be entered that Smith be discharged from his arrest.
The Prophet’s Hour with Judge Pope.
At the close I arose, and bowed to the court, which adjourned to ten o’clock tomorrow. I accepted an invitation to see Judge Pope in his room, and spent an hour in conversation with his honor, in which I explained to him that I did not profess to be a prophet any more than every man ought to who professes to be a preacher of righteousness; and that the testimony of Jesus is the spirit of prophecy; and gave the judge a brief but general view of my principles. Esquire Butterfield asked me “to prophesy how many inhabitants would come to Nauvoo.” I said, I will not tell how many inhabitants will come to Nauvoo; but when I went to Commerce, I told the people I would build up a city, and the old inhabitants replied “We will be damned if you can.” So I prophesied that I would build up a city, and the inhabitants prophesied that I could not; and we have now about 12,000 inhabitants. I will prophesy that we will build up a great city; for we have the stakes and have only to fill up the interstices.
The judge was very attentive and agreeable, and requested of me that my secretary, Dr. Richards, would furnish him a copy of his decision for the press. Dined at General Adams’, and in the afternoon visited Mr. Butterfield with Brother Clayton. In the evening visited Mr. Groves, and lodged at General Adams’ with Dr. Richards.
The Advice of Governor Ford.
Friday, 6.—In the morning went to see Judge Pope with Dr. Richards, who presented the judge with a report of his decision, called on Mr. Butterfield, and gave him two notes of two hundred and thirty dollars each, having paid him forty dollars as fee for his service in my suit. I took certified copies of the doings of the court, and waited on Governor Ford for his certificate thereto, after which he offered me a little advice, which was, that I “should refrain from all political electioneering.” I told him that I had always acted upon that principle, and proved it by General Law and Dr. Richards: and that the “Mormons” were driven to union in their elections by persecution, and not by my influence: and that the “Mormons” acted on the most perfect principle of liberty in all their movements.
During the day I had considerable conversation in the court room with the lawyers and others, on various topics and particularly on religion. Judge Pope’s son wished me well, and hoped I would not be persecuted any more, and I blessed him. Mr. Butterfield said I must deposit my discharge and all my papers in the archives of the Temple when it is completed. My discharge, here referred to, commenced with my petition for habeas corpus and closed with the certificate of Thomas Ford, governor of Illinois, including all the documents relating to my trial on separate sheets of paper, attached by a blue ribbon, and secured by the seal of the court, and reads as follows:
Official Papers Relating to the Prophet’s Trial at Springfield, Ill., Before Judge Pope.
Pleas before the Circuit Court of the United States for the district of Illinois, at the December term, A.D., 1842, December 31st.
In the matter of Joseph Smith: Petition for habeas corpus.
Justin Butterfield, attorney for said petitioner, comes and moves the court for the allowance of a writ of habeas corpus, and files the annexed petition and the papers referred to therein.
To the Honorable the Circuit Court of the United States for the district of Illinois:
The petition of Joseph Smith respectfully showeth that he has been arrested, and is detained in custody by William F. Elkin, sheriff of Sangamon county, upon a warrant issued by the governor of the state Illinois, upon the requisition of the governor of Missouri, as a fugitive from justice, a copy of the said warrant and the requisition and affidavit upon which the same was issued, is hereto annexed. And your petitioner is also arrested by Wilson Law, and by him also held and detained in custody, (jointly with the said sheriff of Sangamon county) upon a proclamation issued by the governor of the state of Illinois, a copy of which proclamation is hereunto annexed. Your petitioner prays that a writ of habeas corpus may be issued by this court directed to the said William F. Elkin and Wilson Law, commanding them forthwith and without delay to bring your petitioner before this honorable court, to abide such order and direction as the said court may make in these premises. Your petitioner states that he is arrested and detained as aforesaid under color of a law of the United States, and that his arrest and detention is illegal and in violation of law; and without the authority of law, in this, that your petitioner is not a fugitive from justice, nor has he fled from the state of Missouri. And your petitioner, as in duty bound, will ever pray.
The Governor of the State of Missouri to the Governor of the State of Illinois—greeting:
Whereas it appears by the annexed document, which is hereby certified as authentic, that one Joseph Smith is a fugitive from justice, charged with being accessory before the fact, to an assault with intent to kill, made by one O. P. Rockwell on Lilburn W. Boggs, in this state; and it is represented to the executive department of this state, has fled to the state of Illinois:
Now, therefore, I, Thomas Reynolds, governor of the state of Missouri, by virtue of the authority in me vested by the Constitution and laws of the United States, do, by these presents demand the surrender and delivery of the said Joseph Smith to Edward R. Ford, who is hereby appointed as the agent to receive the said Joseph Smith on the part of this state.
In testimony whereof, I, governor of the state of Missouri, have hereunto set my hand and caused to be affixed the great seal of the state of Missouri.
Done at the city of Jefferson, this 22nd day of July, in the year of our Lord one thousand eight hundred and forty-two; of the Independence of the United States, the sixty-seventh, and of this state the twenty-third.
By the Governor,[Seal] Thomas Reynolds.
Jas. L. Minor, Secretary of State.
3. Affidavit of Lilburn W. Boggs.
State of Missouri,
County of Jackson. ss.
This day personally appeared before me, Samuel Weston, a justice of the peace within and for the county of Jackson; the subscriber, Lilburn W. Boggs, who being duly sworn, doth depose and say, that on the night of the sixth day of May, 1842, while sitting in his dwelling, in the town of Independence, in the county of Jackson, he was shot, with intent to kill; and that his life was despaired of for several days, and that he believes, and has good reason to believe, from evidence and information now in his possession, that Joseph Smith, commonly called the Mormon Prophet, was accessory before the fact of the intended murder; and that the said Joseph Smith is a citizen or resident of the state of Illinois, and the said deponent hereby applies to the governor of the state of Missouri to make a demand on the governor of the state of Illinois to deliver the said Joseph Smith, commonly called the Mormon Prophet, to some person authorized to receive and convey him to the state and county aforesaid, there to be dealt with according to law.
Lilburn W. Boggs.
Sworn to and subscribed before me, this 20th day of July. 1842.
Samuel Weston, J. P.
4. Certificate of Secretary of State of Illinois.
State Of Illinois,
Office of Secretary of State.
I, Lyman Trumbull, secretary of state, of the state of Illinois, do hereby certify the foregoing to be a true and perfect copy of the demand of the governor of the state of Missouri upon the governor of this state, for the apprehension and surrender of Joseph Smith, who is charged with being a fugitive from justice, and the affidavit of Lilburn W. Boggs attached to the same, which are on file in this office.
In testimony whereof I have hereunto set my hand, and affixed the great seal of state at Springfield, this thirty-first day of December, A.D., one thousand eight hundred and forty-two.[Seal.] Lyman Trumbull,
December 31, 1842. Secretary of State.
I do hereby certify the foregoing to be true copies of the demand and affidavit upon which the writ for the apprehension of Joseph Smith was this day issued.
Secretary of State.
December 31, 1842.
V. Governor Ford’s Order for the Prophet’s Arrest.
The people of the State of Illinois to the Sheriff of Sangamon County, greeting:
Whereas it has been made known to me by the executive authority of the state of Missouri, that one Joseph Smith stands charged by the affidavit of one Lilburn W. Boggs, made on the 20th day of July, 1842, at the county of Jackson, in the state of Missouri, before Samuel Weston, a justice of the peace within and for the county of Jackson aforesaid, with being accessory before the fact to an assault with intent to kill, made by one O. P. Rockwell on Lilburn W. Boggs, on the night of the sixth of May, A.D. 1842, at the county of Jackson, in said state of Missouri; and that the said Joseph Smith has fled from the justice of said state, and taken refuge in the state of Illinois:
Now, therefore, I, Thomas Ford, governor of the state of Illinois, pursuant to the Constitution and laws of the United States, and of this state, do hereby command you to arrest and apprehend the said Joseph Smith, if he be found within the limits of the state aforesaid, and cause him to be safely kept and delivered to the custody of Edward R. Ford, who has been duly constituted the agent of said state of Missouri to receive said fugitive from the justice of said state, he paying all fees and charges for the arrest and apprehension of said Joseph Smith, and make due return to the executive department of this state, the manner in which the writ may be executed.
In testimony whereof, I have hereunto set my hand and caused the great seal of the state to be affixed.
Done at the city of Springfield, this 31st day of December, in the year of our Lord one thousand eight hundred and forty-two; and of the Independence of the United States, the sixty-seventh.
By the Governor,
Lyman Trumbull, Secretary of State.
6. Governor Carlin’s Proclamation.
Executive Department, Illinois,
September 20, 1842.
Whereas a requisition has been made upon me, as the executive of this state, by the governor of the state of Missouri, for the apprehension and surrender of O. P. Rockwell, who is charged with the crime of shooting Lilburn W. Boggs, with intent to kill, in the county of Jackson and state of Missouri, on the night of the sixth day of May, A.D., 1842:
And whereas a demand has also been made by the governor of Missouri upon me for the apprehension and surrender of Joseph Smith, commonly called the Mormon Prophet, who is charged with the crime of being accessory to the shooting of said Boggs at the time and place aforesaid, with intent to kill:
And whereas, in obedience to the Constitution and laws of the United States, and of this state, executive warrants have been issued, and the said Rockwell and Smith arrested as fugitives from justice from the state of Missouri; and whereas the said Rockwell and Smith resisted the laws by refusing to go with the officers who had them in custody as fugitives from justice, and escaped from the custody of said officers:
Now, therefore, I, Thomas Carlin, governor of the state of Illinois, in conformity to an act entitled “An Act concerning fugitives from justice,” approved January 6, 1827, do offer a reward of two hundred dollars to any person or persons for the apprehension and delivery of each or either of the above-named fugitives from justice, viz., O. P. Rockwell and Joseph Smith, to the custody of James M. Pitman and Thomas C. King, or to the sheriff of Adams county, at the city of Quincy.
In testimony whereof, I have hereunto set my hand, and caused the great seal of state to be affixed, the day and the date above mentioned.
By the Governor,[Seal.] Thomas Carlin.
Lyman Trumbull, Secretary of State.
The Fulton Advocate, Quincy Herald, Galena Sentinel, and Rockford Pilot, will copy the above for two weeks.
7. Petition of the Prophet for Writ of Habeas Corpus.
In the United States’ Circuit Court, District of Illinois, of December Term, 1842, December 31st day.
In the matter of Joseph Smith, on petition of Habeas Corpus.
And now at this day comes the said Joseph Smith by Justin Butterfield, his attorney, and presents to the court his petition, setting forth that he has been arrested and is detained in custody by William F. Elkin, Sheriff of Sangamon county, upon a warrant issued by the governor of the state of Illinois, upon the requisition of the governor of Missouri, as a fugitive from justice; and that he is also arrested by Wilson Law, and by him also held and detained in custody (jointly with the sheriff of Sangamon county), upon a proclamation issued by the governor of the state of Illinois; that he is arrested and detained as aforesaid, under color of a law of the United States; and that his arrest and detention is illegal and in violation of law, and without the authority of law in this, that the said petitioner is not a fugitive from justice, for has he fled from the state of Missouri; and praying that a writ of habeas corpus may be issued by this court, directed to the said William F. Elkin and Wilson Law, commanding them forthwith and without delay to bring the petitioner before this court to abide such order and direction as this court may make in the premises: upon reading and filing of which said petition, it is considered and ordered by the court that a writ of habeas corpus be issued as prayed for in said petition, returnable forthwith.
And thereupon a writ of habeas corpus was issued in the words and figures following,—to wit:
8. Writ of Habeas Corpus.
The United States of America to William F. Elkin, Sheriff of Sangamon County, State of Illinois, and Wilson Law, greeting:
We command you that you do forthwith, without excuse or delay, bring or cause to be brought, before the Circuit Court of the United States for the district of Illinois, at the District Court-room, in the city of Springfield, the body of Joseph Smith, by whatever name or addition he is known or called, and who is unlawfully detained in your custody, as it is said, with the day and cause of his caption and detention, then and there to perform and abide such order and direction as the said court shall make in that behalf. And hereof make due return under the penalty of what the law directs.
Witness, Roger B. Taney, Chief Justice of the Supreme Court of the United States at Springfield, in the district of Illinois, this 31st day of December, A.D., 1842, and of our Independence the sixty-seventh year.[Seal.] James F. Owings, Clerk.
9. Returns on the Above Writ of Habeas Corpus.
And afterwards, on the said 31st day of December aforesaid, the said writ of habeas corpus was returned, with returns endorsed thereon in the words and figures following:—
I, William F. Elkin, sheriff of Sangamon county, do hereby return the within writ, that the within named Joseph Smith is in my custody, by virtue of a warrant issued by the governor of the state of Illinois upon the requisition of the governor of the state of Missouri, made on the affidavit of L. W. Boggs, and a copy of the said warrant, requisition, and affidavit is hereunto annexed, dated December 31, 1842.
Wm. F. Elkin,
Sheriff S. C., Illinois.
I, Wilson Law, do return to the within writ that the said Joseph Smith is in my custody by virtue of an arrest made by me of his body under and by virtue of a proclamation of the governor of the state of Illinois; a copy whereof is hereunto annexed, dated December 31, 1842.
The return to the within writ of habeas corpus appears by the foregoing returns and the schedule hereunto annexed, and the body of the said Joseph Smith is in court.
U.S. Marshal, district of Illinois.
December 31, 1842.
9. Orders of the Court.
And afterwards, to wit, on the same day aforesaid, upon the return of the said writ of habeas corpus, the following orders were made in this cause:—
In the matter of Joseph Smith, on Habeas Corpus.
William F. Elkin and Wilson Law having made return to the writ of habeas corpus issued in this cause, and brought the body of the said Joseph Smith into court, on motion of Justin Butterfield, his attorney, it is ordered that the said Joseph Smith be admitted to bail; and thereupon came the said Joseph Smith in proper person, principal, and James Adams and Wilson Law, sureties, and severally acknowledge themselves to owe and be indebted to the United States of America, in the sum of two thousand dollars each, to be levied of their respective goods and chattels, lands and tenements; but to be void on condition that the said Joseph Smith shall be and appear before the Circuit Court of the United States for the district of Illinois, now sitting from day to day, and shall not depart without leave of the court. And thereupon it is ordered that this cause be set for hearing on Monday next; and it is further ordered that the governor of Illinois and the attorney-general be informed by the marshal that Joseph Smith, arrested on a warrant issued for his apprehension by the governor of Illinois, 31st December, 1842, is before this court on habeas corpus, and that the case will be heard on Monday, January 2nd, 1843, and that a copy of this order be handed to each of those officers.
It is ordered that the governor of Illinois and the attorney-general be informed by the marshal that Joseph Smith, arrested on a warrant issued for his apprehension by the governor of Illinois, 31st December, 1842, is before this court on a writ of habeas corpus, and that the case will be heard on Monday, 2nd January, 1843, and that a copy of this order be handed to each of those officers.
United States of America,
District of Illinois.
I, James F. Owings, clerk of the Circuit Court of the United States for the district aforesaid, do certify that the foregoing is a true copy of an order passed by said court, the 31st day of December, 1842.
In testimony whereof I have hereunto subscribed my name and affixed the seal of said court at Springfield, this 31st day of December, A.D., 1842.[Seal.] James F. Owings, Clerk.
Delivered a copy of the within order to Thomas Ford, governor, and Josiah Lamborn, attorney-general of the state of Illinois, December 31st, 1842.
In the matter of Joseph Smith on habeas corpus; copy of order, marshal’s fees for serving on two, $4.00; returning twelve, $4.12.
X. Denials of the Prophet.
And afterwards, to-wit, on the 2nd day of January, A.D. 1843, Justin Butterfield, attorney of said petitioner, filed the written denials of the said petitioner of the matters and things set forth, in the return to the said writ of habeas corpus, which denial is in the words and figures following,—viz.:
Circuit Court of the United States,
District of Illinois.
In the matter of Joseph Smith upon habeas corpus.
Joseph Smith, being brought up on habeas corpus before this court, comes and denies the matter set forth in the return to the same in this, that he is not a fugitive from the justice of the state of Missouri; but alleges and is ready to prove, that he was not in the state of Missouri at the time of the commission of the alleged crime set forth in the affidavit of L. W. Boggs, nor had he been in said state for more than three years previous to that time, nor has he been in said state since that time; but, on the contrary, at the time the said alleged assault was made upon the said Boggs, as set forth in the affidavit the said Smith was at Nauvoo, in the county of Hancock, in the state of Illinois, and that he has not fled from the justice of the state of Missouri, and taken refuge in the state of Illinois, as is most untruly stated in the warrant upon which he is arrested, and that the matter set forth in the requisition of the governor of Missouri, and in the said warrant, are not supported by oath.
State of Illinois, ss.
Joseph Smith being duly sworn, saith that the matter and things set forth in the foregoing statement are true.
Sworn and subscribed to before me, this second day of January, 1843.
James F. Owings, Clerk.
11. Procedure of the Court.
And afterwards, to-wit, on the same day and year last aforesaid, the following order was made in this cause,—viz.:
In the matter of Joseph Smith on habeas corpus.
At this day comes the said Joseph Smith, and, by Justin Butterfield, his attorney, files his written denial, verified by affidavit, of the matters and things set forth in the return to the writ of habeas corpus issued in this cause; and at the same time also comes Josiah Lamborn, attorney-general of the state of Illinois, and on his motion it is ordered that this cause be continued for hearing until Wednesday morning next.
And afterwards, to-wit, on the fourth day of January, 1843, Josiah Lamborn, attorney-general of the state of Illinois, filed his objections to the jurisdiction of this court in this cause, and moved to dismiss the proceedings herein, which said motion and objections are in the words and figures following—viz.:
United States of America,
In the Circuit Court of the State of Illinois.
In the matter of Joseph Smith.
J. Lamborn, attorney-general of Illinois, moves the court to dismiss the proceedings herein, for the reason that this court has no jurisdiction.
1st. The arrest and detention of said Smith was not under or by color of authority of the United States, or any of the officers of the United States, but under and by color of authority of the state of Illinois, and by the officers of Illinois.
2nd. When a fugitive from justice is arrested by authority of the government of any state, upon the requisition of any other governor of another state, the courts of justice, neither state nor federal have any authority or jurisdiction to inquire into any facts behind the writ.
Attorney-General of Illinois.
And afterwards, to-wit, on the same day and year last aforesaid, the following order was made in this cause,—viz.:
In the matter of Joseph Smith, on habeas corpus.
And now, again, at this day, comes the said Joseph Smith, by Justin Butterfield, his attorney; and at the same time also comes Josiah Lamborn, attorney-general of the state of Illinois, and enters his motion to dismiss the proceedings herein, for want of jurisdiction; and the court having heard the allegations and proofs herein, and the argument of counsel upon the same, and also upon the aforesaid motion, and not being sufficiently advised took time, &c.
12. Affidavits of Sundry Witnesses.
And afterwards, to-wit, on the same day and year aforesaid, Justin Butterfield, attorney for said petitioner, filed the affidavits, of which the following are copies:
Circuit Court of the United States,
District of Illinois.
In the matter of Joseph Smith, upon habeas corpus.
District of Illinois, ss.
Stephen A. Douglas, James H. Ralston, Almeron Wheat, J. B. Backenstos, being duly sworn, each for himself, says that they were at Nauvoo in the county of Hancock, in this state on the seventh day of May last; that they saw Joseph Smith on that day reviewing the Nauvoo Legion at that place in the presence of several thousand persons.
J. B. Backenstos,
Stephen A. Douglas.
Sworn to and subscribed in open court, this 4th day of January, 1843.
James F. Owings, Clerk.
Circuit Court of the United States,
District of Illinois.
In the matter of Joseph Smith upon habeas corpus.
District of Illinois:—Wilson Law, Henry G. Sherwood, Theodore Turley, Shadrach Roundy, Willard Richards, William Clayton, and Hyrum Smith, being duly sworn, say that they know that Joseph Smith was in Nauvoo, in the county or Hancock, in the state of Illinois, during the whole of the sixth and seventh days of May last; that on the sixth day of May, aforesaid, the said Smith attended an officer-drill at Nauvoo, from ten o’clock in the forenoon to about four o’clock in the afternoon, at which drill the said Joseph Smith was present. And these deponents, Hyrum Smith, Willard Richards, Henry G. Sherwood, John Taylor, and William Clayton, were with the said Smith at Nauvoo aforesaid, during the evening of the sixth day of May last, and sat with the said Joseph Smith in Nauvoo Lodge from six until nine o’clock of said evening. And these deponents, Hyrum Smith, Willard Richards, and William Marks, were with the said Smith at his dwelling house, in Nauvoo, on and during the evening of the fifth day of May last, and conversed with him; and all of the deponents aforesaid do say that, on the seventh day of May aforesaid, the said Smith reviewed the Nauvoo Legion, and was present with the said Legion all that day, in the presence of many thousand people, and it would have been impossible for the said Joseph Smith to have been at any place in the state of Missouri at any time on or between the sixth or seventh days of May aforesaid. And these deponents, Willard Richards, William Clayton, Hyrum Smith, and Lorin Walker, say that they have seen and conversed with the said Smith at Nauvoo, aforesaid, daily, from the tenth of February last, until the first day of July last, and know that he has not been absent from said city of Nauvoo, at any time during that time, long enough to have been in the state of Missouri; that Jackson county in the state of Missouri is about three hundred miles from Nauvoo.
Henry G. Sherwood,
Sworn to and subscribed in open court, this 4th January, 1843.
13. Denial of the Court to Dismiss the Case.
And afterwards, to wit on the 5th day of January, 1843, the following order was made in this cause,—viz.:
In the matter of Joseph Smith on habeas corpus.
And now, at this day, comes again the said Joseph Smith, by Justin Butterfield, his attorney, and at the same time also comes Josiah Lamborn, attorney-general of the state of Illinois; and the court being now sufficiently advised of and concerning the motion heretofore entered to dismiss the proceedings in this cause, it is considered that said motion be denied; and the court having fully considered the petition of the said Joseph Smith, and the matters and things set forth in the return made to the writ of habeas corpus issued herein, and being now sufficiently advised of and concerning the same, it is considered and adjudged that the matters and things set forth in the return to the said writ of habeas corpus are wholly insufficient in law to authorize the arrest and detention of the said Joseph Smith; and it is further considered, ordered, and adjudged by the court that the said Joseph Smith be fully released and discharged from the custody of William F. Elkin, sheriff of Sangamon county, under the warrant of the governor of the state of Illinois, mentioned in the said return, and also from the custody of Wilson Law, on the proclamation of the said governor mentioned in the said return, and that he go hence without delay.
United States of America
District of Illinois. ss.
I, James F. Owing, clerk of the United States Circuit Court for the district of Illinois, do certify that the foregoing is a true and correct copy of the record and proceedings before said court, in the matter of Joseph Smith, on petition, to be discharged on habeas corpus, as the same remain on the record and files of said court.
In testimony whereof, I have hereunto subscribed my name, and affixed the seal of said court at Springfield, this sixth day of January, A.D. 1843, and of our independence the 67th year.[Seal] James F. Owing, Clerk.
14. Executive’s Order of Release.
I do hereby certify that I have inspected the foregoing record, and there is now no further cause for arresting or detaining Joseph Smith, therein named, by virtue of any proclamation or executive warrant heretofore issued by the governor of this state; and that since the judgment of the Circuit Court of the United States for the district of Illinois, all such proclamations are inoperative and void.
Witness my hand and seal, at Springfield, this 6th day of January, 1843.[Seal] Thomas Ford,
Governor of Illinois.
The Prophet’s Comment on Judge Pope’s Opinion.
The opinion of Judge Pope as recorded in this history, was copied from the Sangamon Journal, and believed to be Judge Pope’s opinion, as corrected and altered by him from the report furnished him by my secretary.
In the judge’s opinion on the bench, he remarked like this:—”Were it my prerogative to impeach Congress for any one thing, it would be for granting power for the transportation of fugitives on affidavit, and not on indictment alone.” He also passed several severe strictures on the actions of different governors and others concerned in my case, but which I suppose he thought proper to omit in his printed copy.
I received many invitations to visit distinguished gentlemen in Springfield, which time would not permit me to comply with; also a ticket from the manager to attend the theatre this evening; but the play was prevented by the rain.