CHAPTER XII.

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.

[Sidenote: 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.

[Sidenote: 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 {210} 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.

[Sidenote: 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 {211} 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.

[Sidenote: 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 all 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 might 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.

[Sidenote: 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 {212} 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'.

[Sidenote: 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.

[Sidenote: 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 {213} 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.

[Sidenote: 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.

[Sidenote: 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 {214} 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.

[Sidenote: 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.

[Sidenote: 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 [A] or any of the Brewster race.

[Footnote A: James Collins Brewster, the person mentioned by the

Prophet in the text, was a boy about sixteen years of age, having been

born as nearly as may be ascertained, in the year 1827. He claimed

several years previous to this time to have had revelations while in

Kirtland, by which he translated the so-called "Book of Esdras" which

in some way, not altogether clear, was interpreted to be a guide for

the Latter-day Saints. He succeeded in converting his parents and a

small number of people to the genuineness of his prophetic powers and

gift of translation; and was now contemplating a removal of those who

believed in him to California. After the death of the Prophet, in

connection with one Hazen Aldridch, he succeeded in holding together

a following for a few years, but in the end the Brewster-Aldridch

movement was a flat failure, and the organization ceased to exist.]

{215} 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.

[Sidenote: 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.

[Sidenote: 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, {216} 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.

[Sidenote: Mormon Service 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'.

[Sidenote: A Prophecy.]

_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 {217} and progress of the Church of Latter-day Saints to add

to it.

[Sidenote: 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.

[Sidenote: 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 off 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 {218} the negro, I would confine

them by strict law to their own species, and put them on a national

equalization.

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: The Prophet's Illustration.]

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

{219} 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.

[Sidenote: 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 {220} 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.

[Sidenote: 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, affidavits 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 {221} 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_; {222} 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.

[Sidenote: 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, {223} apparently saying little more than his relation to the

case demanded.

[Sidenote: 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 {224} 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.

{225} 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 _versus_ 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 {226} 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 {227} 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 {228} 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.

{229} 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 found _cause_

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.

{230} 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, 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, 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 {231} 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 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 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.

[Sidenote: 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 {232} 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.

[Sidenote: 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.

[Sidenote: Sundry Conversations.]

During the day I had considerable conversation in the {233} 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_.

I.

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 {234} 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.

JOSEPH SMITH.

II.

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.

III.

#_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 {235} 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.

IV.

#_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,

Secretary of State.

December 31, 1842.

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.

L. TRUMBULL,

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

{236} 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,

[Seal.] THOMAS FORD.

LYMAN TRUMBULL, Secretary of State.

VI.

#_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:

{237} 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.

VII.

#_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, nor 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 {238} 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:

VIII.

#_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.

IX.

#_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

{239} 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.

WILSON LAW.

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.

WM. PRENTISS,

U.S. Marshal, district of Illinois.

December 31, 1842.

IX.

#_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.

{240} 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.

WM. PRENTISS, Marshal.

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

{241} of the governor of Missouri, and in the said warrant, are not

supported by oath.

JOSEPH SMITH.

State of Illinois, ss.

Joseph Smith being duly sworn, saith that the matter and things set

forth in the foregoing statement are true.

JOSEPH SMITH.

Sworn and subscribed to before me, this second day of January, 1843.

JAMES F. OWINGS, Clerk.

XI.

#_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.

J. LAMBORN,

Attorney-General of Illinois.

{242} 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.

XII.

#_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 {243} 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.

WILSON LAW,

HENRY G. SHERWOOD,

THEODORE TURLEY,

SHADRACH ROUNDY,

WILLARD RICHARDS,

WILLIAM CLAYTON,

JOHN TAYLOR,

WILLIAM MARKS,

LORIN WALKER.

Sworn to and subscribed in open court, this 4th January, 1843.

OWINGS, Clerk.

XIII.

#_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 {244} 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.

XIV.

#_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.

[Sidenote: 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.

{245} 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.

{246}

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