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WE devote this chapter to an account of the arrest of Joseph Smith, his trial and acquittal.
The following statement of Joseph Smith regarding this case, in his own language, as published in his history as it appears in the Millennial Star, will be of interest:-
Monday, 8th. This afternoon I was arrested by the deputy sheriff of Adams County and two assistants, on a warrant issued by Governor Carlin, founded on a requisition from Governor Reynolds of Missouri, upon the affidavit of ex-Governor Boggs, complaining of the said Smith as 'being an accessory before the fact, to an assault with an intent to kill, made by one O. P. Rockwell on Lilburn W. Boggs,' on the night of the sixth of May, A. D. 1842. Brother Rockwell was arrested at the same time as principal. There was no evasion of the officers, though the Municipal Court issued a writ of habeas corpus according to the constitution of the State, article 8, and section 13. This writ demanded the bodies of Messrs. Smith and Rockwell to be brought before the aforesaid court; but these officers refused to do so, and finally without complying they left them in the care of the marshal, without the original writ by which they were arrested and by which only they could be retained, and returned back to Governor Carlin for further instructions; and Messrs. Smith and Rockwell went about their business.
"I have yet to learn by what rule of right I was arrested to be transported to Missouri for a trial of the kind stated.
(page 607)
'An accessory to an assault with an intent to kill,' does not come under the provision of the fugitive act, when the person charged has not been out of Illinois, etc. An accessory before the fact to manslaughter is something of an anomaly. The isolated affidavit of ex-Governor Boggs is no more than any other man's, and the Constitution says, 'That no person shall be liable to be transported out of the State for an offense committed within the same.' The whole is another Missouri farce. In fact, implied power and constructive guilt, as a dernier resort, may answer the purpose of despotic governments, but are beneath the dignity of the sons of liberty, and would be a blot on our judicial escutcheon.-Millennial Star, vol. 19, pp. 630, 631.
On August 17, 1842, Mrs. Emma Smith wrote Governor Carlin in behalf of her husband, appealing to his knowledge of Boggs' cruelty and his own sense of justice. 1
1 Nauvoo, August 17,1842.
To His Excellency Governor Carlin.
Sir:-It is with feelings of no ordinary cast that I have retired, after the business of the day and evening too, to address your honor. I am at a loss how to commence; my mind is crowded with subjects too numerous to be contained in one letter. I find myself almost destitute of that confidence necessary to address a person holding the authority of your dignified and responsible office; and I would now offer as an excuse for intruding upon your time and attention, the justice of my cause.
Was my cause the interest of an individual or of a number of individuals, then, perhaps, I might be justified in remaining silent. But it is not. Nor is it the pecuniary interest of a whole community alone that prompts me again to appeal to your Excellency. But, dear sir, it is for the peace and safety of hundreds, I may safely say, of this community, who are not guilty of any offense against the laws of the country; and also the life of my husband, who has not committed any crime whatever neither has he transgressed any of the laws or any part of the Constitution of the United States; neither has he at any time infringed upon the rights of any man, or of any class of men, or community of any description. Need I say that he is not guilty of the crime alleged against him by Governor Boggs? Indeed, it does seem entirely superfluous for me or any one of his friends in this place to testify his innocence of that crime when so many of the citizens of your place, and of many other places in this State, as well as in the Territory, do know positively that the statement of Governor Boggs is without the least shadow of truth; and we do know, and so do many others, that the prosecution against him has been conducted in an illegal manner; and every act demonstrates the fact that all the design of the prosecution is to throw him into the power of his enemies, without the least ray of hope that he would ever be allowed to obtain a fair trial; and that he would be inhumanly and ferociously murdered, no person having a knowledge of the existing circumstances has
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Joseph resumes his history as follows:-
Several rumors were afloat in the city, intimating that my retreat had been discovered, and that it was no longer safe for me to remain at Bro. Sayers'; consequently Emma came to see me at night, and informed me of the report. It was considered wisdom that I should remove immediately,
one remaining doubt, and your honor will recollect that you said to me that you would not advise Mr. Smith ever to trust himself in Missouri.
And, dear sir, you cannot for one moment indulge one unfriendly feeling towards him if he abides by your counsel. Then sir, why is it that he should be thus cruelly pursued? Why not give him the privilege of the laws of this State? When I reflect upon the many cruel and illegal operations of Lilburn W. Boggs, and the consequent suffering of myself and family, and the incalculable losses and sufferings of many hundreds who survived and the many precious lives that were lost,-all the effect of unjust prejudice and misguided ambition, produced by misrepresentation and calumny,-my bosom heaves with unutterable anguish. And who that is as well acquainted with the facts as the people of the city of Quincy, would censure me if I should say that my heart burned with just indignation towards our calmuniators [calumniators] as well as the perpetrators of those horrid crimes?
But happy would I now be to pour out my heart in gratitude to Governor Boggs, if he had rose up with the dignity and authority of the chief executive of the State, and put down every illegal transaction, and protected the peaceable citizens and enterprising emigrants from the violence of plundering outlaws, who have ever been a disgrace to the State and always will, so long as they go unpunished. Yes, I say, how happy would I be to render him not only the gratitude of my own heart, but the cheering effusions of the joyous souls of fathers and mothers, of brothers and sisters, widows and orphans, whom he might have saved by such a course, from now drooping under the withering hand of adversity brought upon them by the persecutions of wicked and corrupt men.
And now may I entreat your Excellency to lighten the hand of oppression and persecution which is laid upon me and my family, which materially affect the peace and welfare of this whole community; for let me assure you that there are many whole families that are entirely dependent upon the prosecution and success of Mr. Smith's temporal business for their support; and if he is prevented from attending to the common avocations of life, who will employ these innocent, industrious, poor people, and provide for their wants?
But, my dear sir, when I recollect the interesting interview I and my friends had with you when at your place, and the warm assurances you gave us of your friendship and legal protection, I cannot doubt for a moment your honorable sincerity; but do still expect you to consider our claims upon your protection from every encroachment upon our legal rights as loyal citizens, as we always have been, still are, and are determined always to be a law-abiding people; and I still assure myself that when you are fully acquainted with the illegal proceedings practiced against us in the suit of Governor Boggs, you will recall those writs which have been issued against Mr. Smith and Rockwell, as you must be aware that Mr. Smith was not in Missouri, and of course he could not have left there; with many other considerations, which, if duly considered, will justify Mr. Smith in the course he has taken.
And now I appeal to your Excellency, as I would unto a father who is
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and accordingly I departed in company with Emma and Brother Derby, and went to Carlos Granger's, who lived on the northeast part of the city. Here we were kindly received and well treated.
"Friday morning, 19th. William Clayton presented Emma's letter of the 17th to Governor Carlin at Quincy, in presence of Judge Ralston. The Governor read the letter with much attention, apparently; and when he got through he passed high encomiums on Emma Smith, and expressed astonishment at the judgment and talent manifest in the manner of her address. He presented the letter to Judge Ralston, requesting him to read it. Governor Carlin then proceeded to reiterate the same language as on a former occasion; viz., that he was satisfied there was 'no excitement anywhere but in Nauvoo, amongst the "Mormons" themselves;' all was quiet and no apprehension of trouble in other places, so far as he was able to ascertain.
"He afterwards stated, when conversing on another subject, that 'Persons were offering their services every day, either in person or by letter, and held themselves in readiness to go against the "Mormons" whenever he should call upon them; but he never had the least idea of calling out the militia, neither had he thought it necessary.'
"There was evidently a contradiction in his assertions in the above instances; and although he said 'there was no
not only able but willing to shield me and mine from every unjust prosecution. I appeal to your sympathies, and beg you to spare me and my helpless children. I beg you to spare my innocent children the heartrending sorrow of again seeing their father unjustly dragged to prison or to death. I appeal to your affections as a son, and beg you to spare our aged mother-the only surviving parent we have left-the unsupportable [insupportable] affliction of seeing her son, whom she knows to be innocent of the crimes laid to his charge, thrown again into the hands of his enemies who have so long sought for his life; in whose life and prosperity she only looks for the few remaining comforts she can enjoy. I entreat of your Excellency to spare us these afflictions, and many sufferings which cannot be uttered, and secure to yourself the pleasure of doing good and vastly increasing human happiness, secure to yourself the benediction of the aged, and the gratitude of the young, and the blessing and veneration of the rising generation.
Respectfully, your most obedient,
EMMA SMITH.
P. S.-Sir, I hope you will favor me with an answer. E. S.
-Millennial Star, vol. 19, pp. 725, 726.
(page 610)
excitement but amongst the Mormons,' it is evident he knew better. He also said that it was his opinion that if Joseph would give himself up to the sheriff, he would be honorably acquitted and the matter would be ended; but on Judge Ralston asking how he thought Mr. Smith could go through the midst of his enemies without violence being used towards him, and if acquited how he was to bet back, the Governor was evidently at a loss what to say, but made light of the matter, as though he thought it might be easily done. He took great care to state that it was not his advice that Mr. Smith should give himself up, but thought it would be soonest decided. It appeared evident by the conversation that Governor Carlin was no friend to the saints and they could expect no good things from him. He explicitly acknowledged his ignorance of the law touching the case in question.
"After spending the day in conversation and reading, in the evening I received a visit from my Aunt Temperance Mack, and at night went to the city, and concluded to tarry at home until something further transpired relative to the designs of my persecutors.
"Saturday, 20th. Spent the day in my general business office, otherwise called the Lodge, or Assembly Room, or Council Chamber, which is over my store, and the place where most of the business of the city and church is transacted: my health very indifferent. In the evening had an interview with my brother Hyrum, William Law, Wilson Law, Newel E. Whitney, and George Miller, on the illegality of the proceedings of our persecutors."-Millennial Star, vol. 19, pp. 726, 727.
"[22d.] Received an interesting visit from Mother, and Aunt Temperance Mack. My health and spirits good.
"This afternoon received a few lines from Emma, informing me that she would expect me home this evening, believing that she could take care of me better at home than elsewhere. Accordingly, soon after dark I started for home, and arrived safe, without being noticed by any person. All is quiet in the city.
"Wednesday, 24th. At home all day; received a visit from
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Brothers Newel K. Whitney and Isaac Morley."-Millennial Star, vol. 19, p. 758.
On the above date Governor Carlin replied to Mrs. Emma Smith's letter of the 17th instant. 2
2 QUINCY, August 24, 1842.
Dear Madam:-Your letter of this date has just been handed to me, which recalls to my mind your great solicitude in reference to the security and welfare of your husband; but I need not say it recalls to my mind the subject matter of your solicitude, because that subject, except at short intervals, has not been absent from my mind. I can scarcely furnish you a justifiable apology for delaying a reply so long, but be assured, Madam, it is not for want of regard for you and your peace of mind that I have postponed it, but a crowd of public business which has required my whole time, together with very ill health since the receipt of your former letter; and it would be most gratifying to my feelings now if due regard to public duty would enable me to furnish such a reply as would fully conform to your wishes. But my duty in reference to all demands made by executives of other States, for the surrender of fugitives from justice, appears to be plain and simple, consisting entirely of an executive, and not a judicial character, leaving me no discretion or adjudication as to the innocence or guilt of persons so demanded and charged with crime; and it is plain that the Constitution and laws of the United States in reference to fugitives from justice presumes and contemplates that the laws of the several States are ample to do justice to all who may be charged with crime, and the statute of this State simply requires, "That whenever the Executive of any other State, or of any Territory of the United States, shall demand of the Executive of this State any person as a fugitive from justice, and shall have complied with the requisitions 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 under the seal of the State, to apprehend the said fugitive," etc. With the Constitution and laws before me, my duty is so plainly marked out that it would be impossible to err, so long as I abstain from usurping the right of adjudication. I am aware that a strict enforcement of the laws by an executive, or a rigid administration of them by a judicial tribunal, often results in hardship to those involved, and to you it doubtless appears to be peculiarly so, in the present case of Mr. Smith. If, however, as you allege, he is innocent of any crime, and the proceedings are illegal, it would be the more easy for him to procure an acquittal. In reference to the remark you attribute to me that I "would not advise Mr. Smith ever to trust himself in Missouri," I can only say-as I have heretofore said on many occasions-that I never have entertained a doubt that if Mr. Smith should submit to the laws of Missouri that the utmost latitude would be allowed him in his defense, and the fullest justice done him, and I only intended to refer (in the remark made to you when at my house) to the rabble, and not to the laws of Missouri
Very much has been attributed to me in reference to General Smith that is without foundation in truth, a knowledge of which fact enables me to receive what I hear as coming from him with great allowance. In conclusion, Dear Madam, I feel conscious when I assure you that all my official acts in reference to Mr. Smith have been prompted by a strict sense of duty, and in discharge of that duty have studiously pursued that course least likely to produce excitement and alarm, both in your community and the surrounding public; and I will here add that I much
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Joseph continues:-
"August: Friday, 26th. At home all day. In the evening, in council with some of the Twelve and others. I gave some important instructions upon the situation of the church, showing that it was necessary that the officers that could should go abroad through the States, and, inasmuch as a great excitement had been raised through the community at large by the falsehoods put in circulation by John C. Bennett and others, it was wisdom in God that the elders should go forth and deluge the States with a flood of truth, setting forth the mean, contemptible, persecuting conduct of ex-Governor Boggs, of Missouri, and those connected with him in his mean and corrupt proceedings, in plain terms, so that the world might understand the abusive conduct of our enemies, and stamp it with indignation.
"I advised the Twelve to call a special conference on Monday next, to give instructions to the elders, and call upon them to go forth upon this important mission; meantime, that all the affidavits concerning Bennett's conduct be taken and printed, so that each elder could be properly furnished with correct and weighty testimony to lay before the public.
"Great distress prevails in England on account of the dull state of trade.
"Saturday, 27th In the assembly room with some of the Twelve and others, who were preparing affidavits for the press.-Millennial Star, vol. 19, p. 759.
On the above date Mrs. Emma Smith wrote to Governor Carlin in reply to the Governor's letter of the 24th instant. 3
regret being called upon to act at all, and that I hope he will submit to the laws, and that justice will ultimately be done.
Be pleased to present my best respects to Mrs.-Smith and Miss Snow, your companions when at Quincy, and accept of my highest regard for yourself, and best wishes for your prosperity and happiness.
Your obedient servant,
Mrs. Emma Smith. THOS. CARLIN
-Copied from original letter in our possession
3NAUVOO, August 27, 1842.
TO HIS EXCELLENCY GOVERNOR CARLIN.
Dear Sir:-I received your letter of the 24th in due time, and now tender to you the sincere gratitude of my heart for the interest which you have felt in my peace and prosperity; and I assure you that every act of kindness and every word of consolation have been thankfully received and duly appreciated by me and my friends also; and I much regret your
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Joseph further continues, as follows:-
"August: Tuesday, 30th. At home through the day.
"Wednesday, 31st. At home in the forenoon; afternoon rode to the grove with Emma. and attended the Female Relief Society's meeting.-Millennial Star, vol. 19, p. 789.
"Friday, [Sept.] 2d. Spent the day at home. A report
ill health, and still hope that you will avail yourself of sufficient time to investigate our cause and thoroughly acquaint yourself with the illegality of the prosecution instituted against Mr. Smith. And I now certify that Mr. Smith, myself, nor any other person to my knowledge has ever, nor do we at this time wish your honor to swerve from your duty as an Executive, in the least. But we do believe that it is your duty to allow us in this place the privileges and advantages guaranteed to us by the laws of this State and the United States. This is all we ask, and if we can enjoy these rights unmolested, it will be the ultimate end of all our ambition; and the result will be peace and prosperity to us and all the surrounding country, as far as we are concerned. Nor do we wish to take any undue advantage of any intricate technicalities of law, but honorably and honestly to fulfill all of the laws of this State and of the United States, and then, in turn, to have the benefits resulting from an honorable execution of those laws.
And now, your Excellency will not consider me assuming any unbecoming dictation, but recollect that the many prosecutions that have been got up unjustly, and pursued illegally against Mr. Smith, instigated by selfish and irreligious motives, has obliged me to know something for myself; therefore, let me refer you to the eleventh section of our City Charter:-
All power is granted to the City Council, to make, ordain, establish and execute all ordinances, not repugnant to the Constitution of the State or of the United States, or, as they may deem necessary for the peace and safety of said city. Accordingly there is an ordinance passed by the City Council to prevent our people from being carried off by an illegal process. And if anyone thinks he is illegally seized, under this ordinance, he claims the right of habeas corpus under section 17 of the charter, to try the question of identity, which is strictly constitutional.
These powers are positively granted in the charter over your own signature; and now, dear sir, where can be the justice in depriving us of these rights which are lawfully ours, as well as they are the lawful rights of the inhabitants of Quincy and Springfield and many other places where the citizens enjoy the advantages of such ordinances without controversy? With these considerations, and many more which might be adduced, give us the privilege, and we will show your honor, and the world beside, if required, that the Mr. Smith referred to in the demand from Missouri is not the Joseph Smith of Nauvoo, for he was not in Missouri; neither is he described in the writ, according as the law requires and that he is not a fugitive from justice. Why, then, be so strenuous to have my husband taken, when you know him to be innocent of any attempt on the life of Governor Boggs, and that he is not a fugitive from justice?
It is not the fear of a just decision against him that deters Mr. Smith from going into Missouri, but it is an actual knowledge that it was never intended that he should have a fair trial. And now, sir, if you were not aware of the fact, I will acquaint you with it now, that there were lying in wait between this place and Warsaw, twelve men from Jackson
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reached the city this afternoon that the sheriff was on his way to Nauvoo with an armed force.
"Saturday, 3d. In the morning at home, in company with John Boynton.-Millennial Star, vol. 19, p. 791.
On September 5, 1842, "The Nauvoo Relief Society wrote the Governor an appeal, praying him to exert his official privilege in behalf of the innocent.
On September 7, 1842, Governor Carlin replied to Mrs. Emma Smith's letter of the 27th ultimo. 4
County, Missouri, for the purpose of taking Mr. Smith out of the hands of the officers who might have him in custody. Also those two men from Missouri that were here with Messrs. King and Pitman, divulged the most illegal and infernal calculations concerning taking Mr. Smith into Missouri, the evidence of which we can furnish you at any time, if required. And, dear sir, our good feelings revolt at the suggestion that your Excellency is acquainted with the unlawful measures taken by those engaged in the prosecution-measures which, if justice was done to others, as it would be done to us, were we to commit as great errors in our proceedings, would subject all concerned in the prosecution to the penalty of the law, and that without mercy. I admit, sir, that it is next to an impossibility for anyone to know the extent of the tyranny, treachery, and knavery of a great portion of the leading characters of the State of Missouri: yet it only requires a knowledge of the Constitution of the United States, and statutes of the State of Missouri, and a knowledge of the outrages committed by some of the inhabitants of that State, upon the people called Mormons, and that passed unpunished by the administrators of the law, to know that there is not the least confidence to be placed in any of those men that were engaged in those disgraceful transactions.
If the law was made for the lawless and disobedient, and punishment instituted for the guilty, why not execute the law upon those that have transgressed it, and punish those who have committed crime, and grant encouragement to the innocent, and liberality to the industrious and peaceable?
And now I entreat your honor to bear with me patiently while I ask, What good can accrue to this State or the United States, or any part of this State or the United States, or to yourself, or any other individual, to continue this persecution upon this people, or upon Mr. Smith-a persecution that you are well aware is entirely without any just foundation or excuse?
With sentiments of due respect, I am, your most obedient servant,
EMMA SMITH.
To his Excellency, Thomas Carlin
Governor of the State of Illinois.
P. S.-Sir, you will please tender my best respects and considerations to your wife and family, and tell them I greatly desire to see them with yourself in our place as soon as can be convenient.
EMMA SMITH.
-From copy of original letter in our possession
4QUINCY September 7,1842.
Dear Madam:-Your letter of the 27th ultimo was delivered to me on
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There was much correspondence between Joseph and the Governor, but Joseph avoided arrest until Governor Carlin's term of office had expired and he was succeeded on January 1, 1843, by Governor Thomas Ford.
Monday the 5th instant, and I have not had time to answer it until this evening; and I now appropriate a few moments to the difficult task of replying satisfactorily to its contents, every word of which evinces your devotedness to the interest of your husband, and pouring forth the effusions of a heart wholly his. I am thus admonished that I can say nothing, that does not subserve his interest, that can possibly be satisfactory to you; and before I proceed, I will here repeat my great regret that I have been officially called upon to act in reference to Mr. Smith in any manner whatever. I doubt not your candor when you say you do not desire me "to swerve from my duty as Executive in the least," and all you ask is to be allowed the privileges and advantages guaranteed to you by the Constitution and laws: you then refer me to the eleventh section of the Charter of the City of Nauvoo, and claim for Mr. Smith the right to be heard by the Municipal Court of said city, under a writ of habeas corpus emanating from said court, when he was held in custody under an executive warrant. The Charter of the City of Nauvoo is not before me at this time, but I have examined both the charters and city ordinance upon the subject, and must express my surprise at the extraordinary assumption of power by the board of Aldermen as contained in said ordinances. From my recollection of the charter it authorizes the Municipal Court to issue writs of habeas corpus in all cases of imprisonment or custody arising from the authority of the ordinances of said city; but that the power was granted or intended to be granted to release persons held in custody under the authority of writs issued by the courts or the Executive of the State, is most absurd and ridiculous, and an attempt to exercise it is a gross usurpation of power that cannot be tolerated. I have always expected and desired that Mr. Smith should avail himself of the benefits of the laws of this State, and of course that he would be entitled to a writ of habeas corpus issued by the Circuit Court, and entitled to a hearing before said court; but to claim the right of a hearing before the Municipal Court of the City of Nauvoo, is a burlesque upon the charter itself. As to Mr. Smith's guilt or innocence of the crime charged upon him, it is not my province to investigate or determine; nor has any court on earth jurisdiction of his case but the courts of the State of Missouri; and, as stated in my former letter, both the Constitution and laws presume that each and every State in this Union are competent to do justice to all who may be charged with crime committed in said State.
Your information that twelve men from Jackson County, Missouri were lying in wait for Mr. Smith between Nauvoo and Warsaw, for the purpose of taking him out of the hands of the officers who might have him in custody, and murdering him, is like many other marvelous stories that you hear in reference to him-not one word of it true; but I doubt not that your mind has been continually harrowed up with fears produced by that and other equally groundless stories. That that statement is true is next to impossible, and your own judgment, if you will but give it scope, will soon set you right in reference to it. If any of the citizens of Jackson County had designed to murder Mr. Smith, they would not have been so simple as to perpetrate the crime in Illinois, when he would necessarily be required to pass through to the interior of the State of Missouri, where the opportunity would have been so much better and
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Joseph Smith and his friends were anxious to test the legality of the cause of arrest, and at the solicitation of President Smith Governor Ford issued a. duplicate warrant, upon which Joseph Smith went to Springfield and surrendered. He then obtained a writ of habeas corpus from Judge Pope of the Federal Court.
Governor Ford in his history of Illinois states:-
"We turn again to the history of the State as connected with the Mormons. This people had now become about sixteen thousand strong in Hancock County, and several thousands more were scattered about in other counties. As I have said before, Governor Carlin, in 1842, had issued his warrant for the arrest of Joe Smith their prophet, as a fugitive from justice in Missouri. This warrant had never been executed, and was still outstanding when I came into office.
the prospect of escape much more certain. That is like the statement made by Mr. Smith's first messenger after his arrest, to Messrs. Ralston and Warren, saying that I had stated that Mr. Smith should be surrendered to the authorities of Missouri, dead or alive,-not one word of which was true. I have not the most distant thought that any person in Illinois or Missouri contemplated personal injury to Mr. Smith by violence in any manner whatever.
I regret that I did not see General Law when last at Quincy. A previous engagement upon business that could not be dispensed with, prevented, and occupied my attention that evening until dark. At half past one o'clock p. m. I came home and learned that the General had called to see me, but the hurry of business only allowed me about ten minutes to eat my dinner, and presuming if he had business of any importance that he would remain in the city until I returned. It may be proper here in order to afford you all the satisfaction in my power, to reply to a question propounded to my wife by General Law in reference to Mr. Smith; viz., whether any other or additional demand had been made upon me by the Governor of Missouri for the surrender of Mr. Smith. I answer, None; no change whatever has been made in the proceedings. Mr. Smith is held accountable only for the charge as set forth in my warrant under which he was arrested. In conclusion you presume upon my own knowledge of Mr. Smith's innocence, and ask why the prosecution is continued against him. Here I must again appeal to your own good judgment, and you will be compelled to answer that it is impossible I could know him to be innocent; and as before-stated it is not my province to investigate as to his guilt or innocence, but could I know him innocent, and were he my own son, I would nevertheless (and the more readily) surrender him to the legally constituted authority to pronounce him innocent.
With sentiments of high regard and esteem,
Your obedient servant
THOMAS CARLIN.
Mrs. Emma Smith.
-Copied from original letter in our possession.
(page 617)
The Mormons were desirous of having the cause of arrest legally tested in the Federal Court. Upon their application a duplicate warrant was issued in the winter of 1842-43, and placed in the hands of the Sheriff of Sangamon County. Upon this Joe Smith came to Springfield and surrendered himself a prisoner. A writ of habeas corpus was obtained from Judge Pope of the Federal Court, and Smith was discharged."-Ford's History of Illinois, pp. 313, 314.
The editor of the Times and Seasons (John Taylor) in the issue of January 2, 1843, gives a statement of the case, as follows:-
"THE RELEASE OF GENERAL JOSEPH SMITH.
"We are happy to have it in our power to state that the distinguished individual above-named is once more free, and that the illegal prosecution and persecution which has been instituted against him by ex-Governor Boggs, Governor Reynolds, of Missouri, and ex-Governor Carlin, of this State, has terminated successfully in behalf of the innocent and unoffending; and we have had one striking instance of the dignity and purity of our laws being held inviolate, despite of executive influence and intrigue, and the influence of misrepresentation and bigotry.
"Mr. Smith had long been convinced of the illegality of the proceedings which were instituted against him; but he at the same time thought that when public excitement was so great and popular prejudice so strong that it would be hazardous for him to place himself in the hands of any of the minions of ex-Governor Carlin; judging (very correctly) that if that gentleman had issued a writ illegally and unconstitutionally for his apprehension, he might use an unwarrantable executive influence in having him delivered up to the justice (i. e. injustice) of the State of Missouri.
"But while on the one hand he feared and had reason to fear usurped executive power, he as firmly believed that if he could obtain a fair and impartial hearing before the judiciary, that there was sufficient strength and virtue in the laws to deliver him from the unjust influence and maladministration of his enemies.
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"Feeling fully convinced of the justice of his cause, he repaired to Springfield, about two weeks ago, for the purpose of obtaining a hearing, (and as he believed,) receiving an acquittal from the District Court of the United States for the District of Illinois.
"The Secretary of State had been instructed to send for the writ issued by Governor Carlin, that Mr. Smith might have the privilege of the habeas corpus and of having the legality and constitutionality of the writ tested.
"But as ex-Governor Carlin, or the sheriff of Adams County, or both, were either afraid of having their deeds investigated or wished to set at defiance the law, the writ was not forthcoming; and after the great hue and cry that has been made about Joseph Smith's fleeing from justice, he was absolutely under the necessity of petitioning Governor Ford to issue another writ before he could obtain a hearing before the court. For the purpose of answering the ends of justice and that Mr. Smith might be legally and fairly dealt with, Governor Ford issued another writ, which was a copy of the one issued by Governor Carlin. Mr. Smith then petitioned the United States District Court for a writ of habeas corpus, which was granted, and he appeared before that court on Saturday, the 30th of December, 1842, and gave bail for his appearance at court on Monday. Mr. Lambourn, the Attorney General of the State of Illinois, appeared in behalf of the State, and Mr. Butterfield was counsel for General Smith.
"On Monday Mr. Lambourn requested of the court a little time, stating that the subject was new to him, that it was one of great importance, that he had not had an opportunity of investigating it, and he hoped that the court would indulge him with one or two days. The court granted him that privilege and the trial was postponed until Wednesday, the 4th of January. Mr. Lambourn objected to the proceedings on the ground that the United States Court had no jurisdiction in this case, and that it belonged to the courts of this State to adjudicate in this matter. He moreover contended that they could not go behind the writ, to try the
(page 619)
guilt or innocence of the accused party. His objections, however, were overruled by the court.
"Mr. Edwards and Butterfield showed in a very lucid manner that Mr. Lambourn was in the dark concerning this matter, and Mr. Butterfield contended that in this case, and under the circumstances of the issuing of this writ, the United States District Court not only had jurisdiction, but that it had exclusive jurisdiction. He also showed very clearly that although they had no right to go behind the writ when judgment was rendered, that they had a perfect right where that was not the case. He quoted several authorities in defense of the position that he took, and very clearly showed that the course which he had taken in this affair was strongly supported by law, that he was sustained by the Constitution of the United States, and by a law of Congress based upon the Constitution, and by all former precedents. He then exposed in a very able manner the corruption of Governor Reynolds of Missouri, and of Governor Carlin of Illinois, in relation to this matter, proving from their own documents that the steps which they had taken were illegal, that Governor Reynolds had no foundation to issue a writ, or to demand Joseph Smith from Governor Carlin on anything that there was in the affidavit of ex-Governor Boggs of Missouri, and that he was obliged to add certain clauses in his demand which were not found in the body of the affidavit, before his claims upon this State could have the semblance of law; and that Governor Carlin with these lame documents before him wished to make it a little more plain, and added another addition, by way of codicil to the charge. He clearly showed the progress of crime among those governors. Ex-Governor Boggs' affidavit stated that 'he believed and had good reason to believe that Joseph Smith was accessory before the fact, and that he was a resident of Illinois.' Governor Reynolds stated that it had been represented to him that Joseph Smith was accessory before the fact, and had fled from the justice of Missouri; and to make up the thing complete, Governor Carlin stated that he was a fugitive from justice, consequently neither Governor Reynolds nor Governor Carlin had any foundation
(page 620)
whereon to base the issuing of a demand, proclamation, or writ.
"After showing very clearly the ignorance and injustice of those executives, proving to a demonstration that Joseph Smith had not been in Missouri for three years, that he could not be a fugitive from justice, and that if he were guilty of being an accessory the thing was not done in Missouri, and he could not be taken there to be tried,-he concluded by saying that all the difference there was between the Mormons and other professions was that the different sects believed in the ancient prophets only, and the Mormons believed in both ancient and modern prophecy. Another distinction was that the ancient prophets prophesied in poetry, and the modern ones in prose.
"Judge Pope then stated that the court would give its decision the next morning.
"On Wednesday morning the Judge in his decision investigated the whole matter, and in a very able manner sustained the views of Mr. Butterfield, and adduced additional testimony and evidence in favor of the acquittal of Mr. Smith; and after a very learned and able address, he concluded by saying that, 'The decision of the court is that the prisoner be discharged; and I wish it entered upon the records in such a way that Mr. Smith be no more troubled about this matter.'"-Times and Seasons, vol. 4, pp. 59, 60.
A copy of the proceedings, with the opinion of the Court, was published January 16, 1843, by the Times and Seasons. We reproduce it here as a fitting close to this chapter:-
"CIRCUIT COURT OF THE UNITED STATES, FOR THE
DISTRICT OF ILLINOIS.
"December term, A. D. 1842.
"Before the Honorable Nathaniel Pope, Presiding Judge:
{J. Butterfield and B.
{S. Edwards, Counsel
"Ex parte Joseph Smith {for Smith
on Habeas Corpus. {J. Lambourn, Attorney
{General for the State
{of Illinois.
(page 621)
"This case came before the court upon a return to a writ of habeas corpus, which was issued by this court on the 31st of December, 1842, upon a petition for a habeas corpus on the relation of Joseph Smith, setting forth that he was arrested and in custody of 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 the State of Missouri, demanding him to be delivered up to the Governor of Missouri, as a fugitive from justice; that his arrest as aforesaid was under color of a law of the United States, and was without the authority of law in this, that he was not a fugitive from justice, nor had he fled from the State of Missouri.
"Afterwards on the same day the Sheriff of Sangamon County returned upon the said habeas corpus, that he detained the said Joseph Smith in 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. Copies of the said affidavit, requisition, and warrant were annexed to the said return in the words and figures following:-
"'STATE OF MISSOURI, }ss.
County of Jackson. }
"'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 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; 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
(page 622)
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.'
"'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 to be 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 said 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 the State.
"'In testimony,' etc.
"'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 an intent to kill, made by one O. P. Rockwell on Lilburn W. Boggs, on the night of the 6th day of May, 1842, at the county of Jackson, in said State of Missouri, and that the said Joseph Smith had 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
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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 the 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 this writ may be executed.
"'In testimony whereof,' etc.
"The case was set for hearing on the 4th day of January, 1843, on which day Josiah Lambourn, Attorney General of the State of Illinois, appeared, and moved to dismiss the proceedings, and filed the following objection to the jurisdiction of the court, viz.:-
"'1st. The arrest and detention of Smith was not under or by color of authority of the United States, or of any officers of the United States, but under and by color of authority of the State of Illinois, by the officers of Illinois.
"'2d. 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 or Federal, have any authority or jurisdiction to inquire into any facts behind the writ.'
"The counsel of the said Joseph Smith then offered to read in evidence affidavits of several persons, showing conclusively that the said Joseph Smith 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 he 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 him during the whole of that period. That on the 6th day of May aforesaid he 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 he reviewed
(page 624)
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 ground that it was not competent for Smith to impeach or contradict the return to the habeas corpus. It was contended by the counsel of the said Smith, 1st, That he had a right to prove that the return was untrue. 2d, That the said affidavits did not contradict the said return, as there was no averment under oath in said return that the said Smith 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.
"The cause was argued by J. Butterfield and B. S. Edwards, for Smith, and by Josiah Lambourn, Attorney General of the State of Illinois, contra.
"J. Butterfield, counsel for Smith, made the following points:-
"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.-2d section, 4th article, Constitution United States. -1st section of the act of Congress of 12th February, 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.-2d section, 3d article, Constitution United States.-12th Wend. 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.-2d and 3d clause of 2d section, 4th article, Constitution United States.-2d volume laws United States 331.-16 Peters 617, 618, 623.-4th Wheaton's Rep. 122, 193.-12, Wend. 312.
"All courts of the United States are authorized to issue writs of habeas corpus when the prisoner is confined under or
(page 625)
by color of authority of the United States.-Act of Congress of September 24, 1789, section 4. 2d condensed 33.-3d Cranch 447. 3d 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 Missouri, 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.-3. Bac. 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.-3d Bacon 435, 438.-3d 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. Lambourn, Attorney General of the State of Illinois, in support of the points made by him, cited 2d Condensed Rep. 37; Gordon's Digest, 73; Gale's Statutes of Illinois 318; Conkling 85; 9th Wendall 212.
"And afterwards, on the 5th day of January, 1843, Judge Pope delivered the following
"OPINION:
"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
(page 626)
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 had 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 2d 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
(page 627)
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.
"2d. 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, etc. 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.
(page 628)
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 vs. Pennsylvania.
"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
(page 629)
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 2d section of the 3d article of the Constitution of the 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 2d section, 4th article of the Constitution of the United States, and the act of Congress of February 12, 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 2d 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 official in the Governor, but personal. It might have been granted to anyone 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.
"The 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 2d 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
(page 630)
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 the 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 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.' 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. 2d, 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 2d 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
(page 631)
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 be. 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 of a 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 ægis 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 know 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 the one State to the other, 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
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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 dwelling, 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, their 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,-anyone 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.
(page 633)
"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 Skin. 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 found cause to suspect him. Vauhan, Chief Justice 'Tyrrell 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. 2d, 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
(page 634)
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 avair 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 a 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 inquiry, which would confirm into certainty or 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: 1, Because it is not positive. 2, Because it charges no crime. 3, It charges no crime committed in the State of Missouri. Therefore he did not
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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 affords 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 of 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 State 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 misrecitals and over-statements in the requisition and warrant are
(page 636)
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."-Times and Seasons, vol. 4, pp, 65-71.
(page 637)
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