==> Joseph Smith, the mormon prophet, was brought before Judge Pope, of the U. S. District Court, on Tuesday, on a writ of habeas corpus, in the Bogg's case. The examination was postponed till Wednesday. Mr. Lamborn appears on the part of the State, and Mr. Butterfield on the part of the prisoner.

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The examination of the case of Jos. Smith, arrested under the proclamation of Gov. Carlin, with a view of delivering him over to the authorities of Missouri, on the charge that he was concerned in the attempted murder of Ex-Governor Boggs, of Missouri. was progressing before the District Court yesterday forenoon. The point to be decided seems to be whether "he has fled from justice from the State of Missouri." His guilt or innocence of the charge of attempted murder is not under consideration.

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Major General John C. Bennett, of the Nauvoo Legion, is now lecturing on Mormonism in Chicago. The Express says he proposes to lift the curtain a little higher than usual in his lectures

Notes: (forthcoming)

JOE  SMITH.

This individual, as stated in our last paper, was arrested in this city under the requisition of the Governor of Missouri, charged, upon the affidavit of Ex-Governor Boggs, of having been accessory to an attempt to take his life. Smith came up before the U. S. Circuit Court of this State, Judge Pope presiding under a writ of habeas corpus -- and his own counsel, Justice Butterfield, and B. S. Edwards, Esqr's., claimed that there was no authority under the constitution or laws for delivering the prisoner over to Missouri, -- it not having been alleged that Smith had been to Missouri, and had fled from justice in that State -- the only contingency upon which he could be ganded over to the authorities of Missouri. The arguments presented by the counsel for Smith were conclusive. Mr. Lamborn appeared on behalf of the State, and sustained the requisition of the Governor of Missouri, with his usual ability. Judge Pope, on Thursday morning, delivered his opinion in the case, and the prisoner was discharged.

In our next paper we shall publish that Opinion of Judge Pope -- which will be found to be a most able one, -- presenting all the facts and the law, so clearly that all who examine it will unite in those commendations which were bestowed upon it when delivered from the bench.

If then, Smith is guilty, how is he to be punished? -- By our own laws, if there be any applicable to the case. We have been long of the opinion that the requisition of Smith has been held over his head for sinister purpose: -- that there was no design on the part of the Governor or his friends to give him up to the authorities of Missouri, and for that reason do not regret that it has been disposed of.

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We understand that another requisition will be made upon the Governor of this State for Joseph Smith, under the former indictments, which charge him with robbery, arson, treason, and murder. For this purpose the indictments referred to are to be reinstated. The requisitions will probably include many individuals. The affidavit under the last requisition was manifestly defective, but in this case, those concerned do not believe that any legal objection against the requisition can be made.


Notes: (forthcoming)

THE  NAUVOO  CHARTERS.

The House of Representatives were engaged on Thursday last in the discussion of a bill to repeal all the Mormon charters. The passage of the bill was resisted on the ground, that these charters could not be repealed without great injury to individuals, and that if they are defective -- and no one denies that they are not -- a just policy required their amendment, and not that they should be repealed altogether. Our legislature is almost daily engaged in granting incorporations and for the general purposes sought to be assured by the Nauvoo charters. We say let all of our citizens enjoy equal rights and privileges. In the discussion on Thursday, Mr. Logan, of this county, opposed the repeal of the charters, but was in favor of their amendment. Mr. Smith, the "prophet's" brother, fought ably and manfully against the bill; which was finally laid on the table, on motion of Mr. Logan, by a vote of 60 to 43 -- tantamount to its defeat. We were pleased to see that a large majority of the whigs voted to lay the bill on the table. This is the second effort made to repeal the Nauvoo charters the present session, and is probably the last. We think there is a decided majority in both houses in favor of ammending these charters, and as decidedly opposed to an entire repeal.

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CIRCUIT  COURT  OF  THE  UNITED  STATES,  FOR  THE  DISTRICT  OF  ILLINOIS.

December Term, A. D. 1842.   

Before the Hon. Nathaniel Pope,
Presiding Judge

EX-PARTE JOSEPH SMITH, ) THE MORMON PROPHET   ) IN HABEAS CORPUS          )

J. BUTTERFIELD AND B. S. EDWARDS, COUNSEL FOR SMITH J. LAMBORN, ATTORNEY GENERAL FOR THE STATE OF ILLINOIS.

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 Sanagmon 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, on the affidavit of Lilburn 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, |
.................................. | s.s.
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 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 accessary 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 and subscribed before me, this 20th day of May [sic], 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 fugutive from justice, charged with being accessary 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, [was] 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 this State.

In testimony whereof," &c.


"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 accessary 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:

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 the said State of Missouri, to receive said fugitive from the justice of the 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. &c.


The case was set for hearing on the [5th] day of January, 1843, on which day Josiah Lamborn. Attorney General of the State of Illinois appeared, and moved to dismiss the proceedings and filed the following objections to the justification 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 first 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 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 council 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 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 Lamborn, Attorney General of the State of Illinois, contra.

J. Butterfield, counsel for Smith, made the following points; --

1. The 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 U. States, regulating the surrender of fugitives from justice. -- 2nd sec. 4th article Const. U. S. -- 1st sec. of the act of Congress of 12th Feb. 1793.

When a persons rights are invaded under a law of the United States he has no remedy except in the courts of the United States -- 51 sec. 3d article Const. U. S. -- 12th Wend. 323, -- 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 have regulated the manner and form in which it shall be exercised. The power is exclusive. The State Legislature have no right to interfer, and if they do, their acts are void. -- 2d and 3d clause of 2d sec. 4th article Const. U. S. -- 2d vol. laws U. S. 331. - 16 Peters 617-18, 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 by color of authority of the United States -- Act of Congress of Sept. 24th. 1780, sec. 14, 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 committment be full act in form, yet if the testimony prove no crime, the court will discharge ex parte. -- Taylor 5th, Cowan 50.

The affidavit of Boggs does not show that Smith was charged with any crime comitted by him in Missouri, nor that he was a fugitive from justice.

If the committment be for a matter for which by law the prisoner is not liable to be punished, the court must discharge him. -- 3. Bac. 431.

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 competant jurisdiction. -- 3d. Bacon 435, 438. -- 3d. Peters 202 -- Gale's Rev. Laws of Ills. 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 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

O P I N I O N:

The importance of this case, and the consequences which may flow from an erroneous precedent, effecting 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 case.

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 these 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 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 purusance 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 fugutive 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 effect this article, directs that the demand be made on the Executive of the State where the offender is found, and proscribes the proof to support the demand, viz:

Indictment or affidavit.

The Court is respectful to inform the Governor and Attorney General of the State of Illinois, of the action upon the on the day appointed for the hearing, the Attorney General of the State of Ilinois appeared and denied the jurisdiction of the court to grant the

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 can issue in this case from either the Federal or State Courts, to inquire into the 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 fugutive from justice, and shall have complied with the requisition of the act of Congress in that case made and provided, it shall be the duty of the Executive of this State to issue his warrant to apprehend the said fugitive, &c. It would seem that this act does not purport to confer any additional power upon the Executive of this State, independent of the power conferred by the Constitution and laws of the United States, but to make it the duty of the Executive to obey and carry into effect the act of Congress. The warrant on its face, purports to be issued in pursuance of the constitution and laws of the United States, as well as of the State of Illinois. To maintain the position that this warrant was not issued under color, or by authority of the laws of the United States, it must be proved that the United States could not confer the power on the Executive of Illinois. Because, if Congress could and did confer it, an 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, any thing in the Constitution or Laws of any State to the contrary not withstanding. 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 execute 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 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 describes a rule of action, as obligatory upon the Governor as upon the most obscure officer. The character and purposes of the habeas corpus aregreatly 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 arbitary monarch and that it was hailed as a second Magna Charta, and that it was to protect the subject from arbitary imprisonment by the King and his minions which brought into existance 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 prison keeper, this magnificent 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 enquiry, "The cause of his caption and detention," than a warrant granted by a justice of the peace. It is contended that the United States, is a government of granted powers, and that no Department of it can exercise powers not granted. This is true. But the grant is to be found in the 24 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 the 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 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 too 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 21 sec. 4th art. of the Constitution of the U. 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 U. States. The power is not official 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 U. States; hence the U. States are as much bound to afford them protection in their sphere, as the States in their's.

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 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 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 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 ūgis 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 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, -- any one violating the law would be amenable to the laws of Illinois, executed by its own tribunals. Those of Missouri could have no agency in his conviction and punishment. -- But if he shall go into Missouri, he owes obedience to her laws, and is liable before her courts, to be tried and punished for any crime he may commit there, and a plea that he was a citizen of another State, would not avail him. If he escape, he may be surrendered to Missouri for trial. But when the offense is perpetrated in Illinois, the only right of Missouri is, to insist that Illinois compel her citizens to forbear to annoy her. This she has a right to expect; for the neglect of it nations go to war and violate territory.

The court must hold that where a necessary fact is not stated in the affidavit, it does not exist. It is not averred that Smith was accessory before the fact, in the State of Missouri, nor that he committed a crime in Missouri; therefore he did not commit the crime in Missouri,-did not flee from Missouri to avoid punishment.

Again, the affidavit charges the shooting on the 6th of May in the County of Jackson and State of Missouri, "that he believes and has good reason to believe, from evidence and information now (then) in his possession, that Joseph Smith was accessory before the fact, and is a resident or citizen of Illinois." There are several objections to this. Mr. Boggs having the "evidence and information in his possession," should have incorporated it in the affidavit to enable the court to judge of their sufficiency to support his "belief." Again, he swears to a legal conclusion when he says that Smith was accessory before the fact. What acts constitute a man an accessory in a question of law are not always of easy solution. Mr. Boggs' opinion, then, is not authority. He should have given the facts. He should have shown that they were committed in Missouri, to enable the court to test them by the laws of Missouri, to see if they amounted to a crime. Again, the affidavit is fatally defective in this, that Boggs swears to his belief.

The language in the Constitution is "charged with felony, or other crime." Is the Constitution satisfied with a charge upon suspicion? It is to be regretted that no American adjudged case has been cited to guide the court in expounding this article. Language is ever interpreted by the subject matter. If the object were to arrest a man near home, and there were fears of escape if the movement to detain him for examination were known, the word charged might warrant the issuing of a capias on suspicion. Rudyard (reported in Skin. 676) was committed to Newgate for refusing to give bail for his good behavior, and was brought before the 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 examinations they found cause to suspect him. Vaughn, 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 of suspicion, and how can that ever be tried? At this rate they would have arbitrary power upon their own allegation, to commit whom they pleased.

From this case it appears that suspicion does not warrant a commitment, and that all legal intendments are to avail the prisoner. That the return is to be most strictly construed in favor of liberty. If suspicion in the foregoing case did not warrant a commitment in London by its officers, of a citizen of London, might not the objection be urged with greater force against 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 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 [was] 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 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 upon that warrant, it was in the hands of the person to whom it had been issued at Quincy in this State; and that the present warrant, which is a copy of the former one, was issued at the request of Smith, to enable him to test its legality by writ of Habeas Corpus.

Let an order be entered that Smith be discharged from his arrest.

---

The Opinion of Judge Pope, on the case of Joe Smith, brought up on a writ of habeas corpus before the Circuit Court, is given on the soundness of this opinion.


Notes: (forthcoming)

CASE  OF  JOE  SMITH.

We have some few remarks to offer upon the following abusive letter from the Quincy Herald, which was probably written by one of those men, who informed JOE SMITH that "his safety depended alone upon the clemency of Gov. Carlin, and are now sorely grieved and disappointed that "his safety" no longer "depends upon the clemency" of an individual who acted under their directions.

Mr. Butterfield requires no defence. -- While some of JOE SMITH'S former counse;, (loco focos, of course) were advising him to "secrete himself on swamps," and advoid an arrest under the requisition of the Governor. Mr. Butterfield, on consoltation, avised him to the manly course of trying the legality of the writs for his arrest before the competent tribunal -- the U. S. Circuit Court of Illinois. There he presented the case on the part of his client in such a manner, that no one, whether versed in the legal subtleties of the law or not, who heard him. doubted for a moment that Smith was illegally under arrest, and should be duscharged.

The Opinion of the Judge in the case, -- and which the Herald does not attempt to controvert, otherwise than a wholesome tirade of abuse, -- sets the matter in so clear a light, that all who read it will be satisfied of its soundness and its justice. Here, there is not a dissenting voice against the validity of its doctrines.

The attack of the letter writer upon those ladies who attended court for the purpose of hearing the argument of Mr. Butterfield, and the Opinion of the Judge, is worthy of a low-bred fellow. If he will make himself known to the husbands, brothers or fathers of those ladies he has thus grossly insulted, he may receive the notice he so richly deserves at their hands.

We care not for his attacks upon Joe Smith. The letter writer probably knows him well; and when he charges him, with using hirlings to assassinate a citizen of another State," we are apprehensive that his former associations with Smith enables him to speak "from the book." If these is no law by which such outrages can be punished there has been great oversight on the part of Legislators. But a remedy can be made for future acts of this character, in a prompt enactment of suitable laws by the Legislature now in session. While we wish to see Joe Smith and all others, punished for their misdeeds, we are still disposed to see them punished under equal laws, and a just administration of them.

Rarely has an article appeared in any of our State papers which has produced a deeper and more general feelings of indignation, than that under notice. It is manifestly the production of an individual, rendered rabid by the fact, that he has no longer control over the person of Joe Smith, or, what is probably quite as important to him, his money, -- and who seeks to visit his wrath upon Mr. Butterfield, Judge Pope, and some of the more intelligent and amiable ladies of which our State can boast.

From the Quincy Herald.

Joseph Smith the Mormon Prophet -- his arrest -- his discharge -- villainy and corruption in high places.

                                     SPRINGFIELD, Jan. 1843.
FRIEND PETTIT: -- I write for the purpose of detailing to you a mst ridiculous judicial farce that has just come off in this city. All will recollect that Jo Smith was some time during the last summer demanded of the Governor of Illinois, by the Governor of Missouri, as an accessory before the fact of an attempted assassination to murder Gov. Boggs of the latter State. Gov. Carlin issued his warrant for Smith's arrest, and dispatched the proper officers in pursuit of the Godly Prophet. -- But Smith, unlike the prophets of olden time, feared to meet his accusers face to face. He seemed to believe that there was not as much reliance to be placed in the mighty arm of Omnipotence for his safety, as in the bushes and swamps about Nauvoo. He evaded the officers of justice, by secreting himself, sometimes, in the manner before hinted at, and sometimes, it is said, when hard pushed he took refuge beneath the "mustn't mentionables" of his Cleopatras of beauty. From that time until recently, Smith has been, God and Mormon only knows where; unless it be Butterfield, the U. S. District Attorney, and Pope the U. S. District Judge. Recently, however, the former gentleman, as it is said, writes to Smith that he can be discharged by coming to Springfield. Smith very soon appeared at the seat of government, and files a demand in the office of the Secretary of State to be arrested. The Governor issued his warrant for his apprehension -- the Sheriff took him into custody, and thereupon, Judge Pope, U. S. District Judge allowed a writ of habeas corpus -- the U. S. Marshall immediately took Smith before "His Honor," and after a sort of mock investigation, Smith was discharged. I have only time to give you the points in reference to this part of the face, and "Every tyro in law knows that the District Circuit Court of the State of Illinois has no jurisdiction in such cases, and no intelligent lawyer in Christendom will hold a contrary doctrine unless hired to do it.

2nd. If the U. S. District Court has jurisdiction, in such cases, then it became Butterfield's (the U. S. District Attorney) duty, and his imperative duty, to prosecute, instead of defending criminals in that court. Butterfield, however, acted as Smith's attorney, which fact when combined with the other facts in the case, can hardly lead to any other conclusion, than that Smith's discharge was effected by an arrangement with the U. S. District Attorney, in violation of his duty. I do not say that this was the case, but I do say that the facts ewarrant such a presumption.

3d. The grounds of the discharge were that the affidavit was informal and insufficient, and that Smith could not have been accessory while in thia State, and that he was not in any way amenable to the laws of Missouri.

Gen. Law of the Nauvoo Legion brought Smith here and intended to clain the reward of Smith's attorney fee, (a glorious state of things) but was shamed out of it.

During Smith's trial Judge Pope sat upon the bench with three ladies upon each side of him. -- The smiles of these associate judges added very much to the solemnity of the proceedings. It is said that they were there, that the prophet might cast upon the "blessings of Jacob." Their attendance, however, was a compliment, I suppose, paid to the virtue of the Holy Prophet. And as they gazed upon his manly form, probably the power of imagination brought around them the fancie scenery of Nauvoo -- there was the Temple -- there was the Prophet's palace -- there was Jo and his Mormon virgins, of which rumor, with her thousand tongues; has said so much -- and there was his gilded apartments -- in which the midnight orgies of barbarous incantations were never heard -- and there the prophet perhaps humbly kneeling and praying as prayed the prophets of old, "mine enemies reproach me all the day long, and they are mad against me, swore against me," -- Anon, from the opposite side of the river comes a voice from the Missourians, "hungering and thirsting after wickedness" -- Hodie! Hidie! Carthage delendu!! Today, today, let Nauvoo be destroyed." Terror is depicted in the countenance of the prophet -- his virgins in alarm rush to him, and alternately cast their white arms around his neck, and exclaim, "thou are all that this poor heart can cling to." The prophet stands in silence -- at length he exclaims, "whither, oh@ whither shall I fly? If I cast myself -- my pure and holy person upon the humanity of the Missourians, all is lost. If I should go there and weep over them, as the Saviour of the world wept over the proud vity of Herod, my tears would fall upon their hearts like rain drops upon the burning ploughshare," At length a voice is heard from the mighty men of Springfield, saying --

"Here, here is your only hope.
"Come for pardon to the Pope!" The Prophet arises and sandals his feet for journeying. He arrives in Springfield and is there in person arraigned before Judge Pope and the ladies. With such a field for the imagination, how could the ladies resist sympathizing with the prophet, and attending his trial. They are surely excusable.

To be serious, however, I truly believe that there never was a greater outrage committed on the law by judicial or ministerial officers, than that committed by the arrest and acquital of Jo Smith. It is unparalleled in history of judicial proceedings, and will ever stand as a monument of disgrace to those concerned in the farce. If the people of one State can, by the aid of hirelings, assassinate, and attempt to murder those of another State, and there is no law to punish, where is the safety of the citizens?     ALPHA.


Notes: (forthcoming)

The Quincy Whig supposes we alluded to Mr. C. A. Warren as the author of the letter purporting to have been sent from Springfield, and published in the Quincy Herald, libeling the U. S. Circuit Court of this State, and "turning ladies into ridicule." We did not then suppose that Mr. Warren had any thing to do with fitting out that letter. But we have now some information which leads us to believe that I. N. Morris, Esq., President of the Canal Board, furnished statements on which that letter was predicated; and we now day, if Mr. Warren had nothing to do in "fitting up the letter for publication," and will so inform us, we will take pleasure in stating the fact to the public.


Note: The "turning ladies into ridicule" charge arose from an observation of U. S. Circuit Court Pope flanking himself with young ladies, on the bench, when he heard the case against Joseph Smith (see previous week's article and reprint of "Alpha's" letter in the Journal). In its issue for Feb. 23rd, the Journal published a (fabricated?) communication, attributing the letter in the Quincy Herald to Mr. Morris of the Democratic party.

LETTER  FROM  JOHN  SMITH  TO
HIS  CORRESPONDENT.

                                      SPRINGFIELD, Ill., Feb. 19, 1843.
Dear Friend: -- We are now rapidly closing up business of the session... The question of repealing the Mormon charters is likely to sleep. We thought we had Smith safe -- and while we kept him in fear of being delivered up to Missouri, he was safe. -- But he has found out our game. Did you see the letter of Morris to the Quincy Herald, abusing the Circuit Court for dismissing Smith under the habeas corpus? What an imprudent act! I thought that Morris was too shrewd thus to expose himself and his party....


Note: A satirical political letter -- not a reliable piece of correspondence.

MILLER AND SMITH AT LOGGERHEADS. -- In the "Times and Seasons" for March 1st, Joe Smith puts forth the following revelation:

"Therefore, hear, Oh Earth! the Lord will not come to reign over the Righteous in this world in 1843, nor until every thing for the bridegroom is ready."

So, we suppose Millerism is wound up -- more especially as Smith's paper speaking of the Millerites as "humbuggers."

We wish Joe would make it convenient to have a revelation, that we may know at what particular time our farmers will be able to plant their corn and turn their cattle out to grass. We have now (March 28) good sleighing, the snow as deep as it has been any time the past winter, and the weather quite cold. Last year at this season, our farmers had their spring grains sown and were planting their corn.


Notes: (forthcoming)

From the Quincy Whig of the 26th. [sic]

SINGULAR DISCOVERY -- MATERIAL FOR ANOTHER MORMON BOOK. -- A Mr. J. Roberts, from Pike county, called upon us last Monday, with a written description of a discovery which was recently made near Kinderhook, in that county. We have not room for his communication at length, and will give so much of a summary of it, as will enable the reader to form a pretty correct opinion of the discovery made.

It appears that a young man by the name of Wiley, a resident in Kinderhook, dreamed three nights in succession, that in a certain mound in the vicinity, there was treasures concealed. Impressed with the strange occurrence of dreaming the same dream three nights in succession, he came to the conclusion, to satisfy his mind by digging into the mound. For fear of being laughed at, if he made others acquainted with his design, he went by himself, and labored diligently one day in pursuit of the supposed treasure, by sinking a hole in the centre of the mound. Finding it quite laborous, he invited others to assist him. Finally, a company of ten or twelve repaired to the mound, and assisted in digging out the shaft commenced by Wiley. After penetrating the mound about 11 feet, they came to a bed of limestone, that had apparently been subjected to the action of fire, they removed the stone, which were small and easy to handle, to the depth of two feet more, when they found SIX BRASS PLATES, secured and fastened together by two iron wires, but which were so decayed, that they readily crumbled to dust upon being handled. The plates were so completely covered with rust as almost to obliterate the characters inscribed upon them; but after undergoing a chemical process, the inscriptions were brought out plain and distinct. -- There were six plates -- four inches in length, one inch and three quarters wide at the top, and two inches and three quarters wide at the bottom, flaring out to points. -- There are four lines of characters or hieroglyphics on each; on one side of the plates are parallel lines running lengthwise. A few of the characters resemble, in their form, the Roman capitals of our alphabet -- for instance, the capital B and X appear very distinct. In addition, there are rude representations of three human heads on one of the plates, the largest in the middle; from this head proceeds marks or rays, resembling those which usually surround the head of Christ, in the pictorial representations of his person. There is also figures of two trees with branches, one under each of the two small heads, both leaning a little to the right. One of the plates, has on it the figure of a large head by itself, with two ==> pointing directly to it.

By whom these plates were deposited there, must ever remain a secret, unless some one skilled in deciphering hieroglyphics, may be found to unravel the mystery. Some pretend to say, that Smith the Mormon leader, has the ability to read them. If he has, he will confer a great favor on the public by removing the mystery which hangs over them. We learn there was a Mormon present when the plates were found, who it is said, leaped for joy at the discovery, and remarked that it would go to prove the authenticity of the Book of Mormon -- which it undoubtedly will.

In the place where these plates were deposited, were also found human bones in the last stage of decomposition; also some braid, which was at first supposed to be human hair, but on a closer examination proved to be grass; probably used as a covering for the bodies deposited there; this was also in the last stage of decay. There were but few bones found in the mound; and it is believed, that it was but the burial place of a small number, perhaps of a person, or a family of distinction, in ages long gone by, and that these plates contain the history of the times, or of a people, that existed far -- far -- beyond the memory of the present race. But we will not conjecture any thing about this wonderful discovery, as it is one which the plates alone can reveal.

On each side of this mound in which this discovery was made, was a mound, on one of which is a tree growing that measures two feet and a half in diameter, near the ground. Showing the great antiquity of the mounds, and of course, all that is buried within them. These mounds like others, that are found scattered all over the Mississippi valley, are in the form of a sugar loaf.

The plates above alluded to, were exhibited in this city last week, and are now, we understand, in Nauvoo, subject to the inspection of the Mormon Prophet. The public curiosity is greatly excited, and if Smith can decipher the hieroglyphics on the plates, he will do more towards throwing light on the early history of this continent, than any man now living.


Notes: (forthcoming)

The person who found the plates in a mound in Pike county, has requested the Quincy Whig to correct that part of the statement which says he "dreamed a treasure was buried in the mound." He had no dream, but was impelled by curiosity to explore the mound.

---

Some citizens of Nauvoo, with the laudable design of advancing their private interests and promoting the real independence of their adopted country, are about putting up an establishment for the purpose of manufacturing the raw silk gown in this country. There are a few individuals among us, as will be seen in examining the columns of the State Register, entirely hostile to such a proceeding, but we are happy to say that their opposition to the measure will meet with no countenance among a large and intelligent portion of our population.

---

THE NAUVOO NEIGHBOR. -- The Nauvoo Wasp, has given place to the "Nauvoo Neighbor," by the same editor, a handsome imperial sheet.

The Neighbor, in reply to our enquiry for a market for cocoons, has given us this neighborly answer:

"In answer to the above enquiry we would state that a good market can be found in Nauvoo for cocoons, as we have a great many silk spinners, weavers, dyers, &c. in our city, who have emigrated from the silk manufacturing districts in England, who are acquainted with the manufacture of silk in all its branches, and it is contemplated to make a commencement of the manufacture of silks as soon as suitable arrangements can be made.

"We are not prepared to say what price could or would be given, as we are not informed on this subject, we can however inform ourselves and may then make it known; in the mean time we would say that as good a price could be obtained for it in Nauvoo, as elsewhere; and that would be in the "solid," and this we think even our whig friends would not object to take."

---

MILLER AND SMITH. -- The last "Nauvoo Neighbor" contains a review of one of "father Miller's" sermons, which is designed to prove that the world is to come to an end sometime between March 23d, 1843 and March 23d, 1844. The Review has perfectly satisfied us that Miller is out in his calculations.


Notes: (forthcoming)

GOV.  FORD  AND  THE  MORMONS.

Gov. Ford's presses are very anxious to do away with the belief, that the Mormon vote was thrown upon Hoge, to secure the protection of Smith -- and that Smith, in consequence of that measure, will be troubled with no further requisitions for the present. In such a transaction, no one supposes that the details of the arrangements will be made public. Enough is known, however, to show, that, contrary to all the previous cpurse of the Mormons, they discarded a man who had always been their friend -- and to whom they were under many obligations, -- and gave their votes to an individual to whom they were a stranger and under no obligations.

The following shilly-shally letters to Gov. Reynolds, of Missouri, appeared in the State Register, a week or two since. Of course, these letters will be perfectly satisfactory to the Governor of Missouri -- the object of the requisition having been entirely successful.

EXECUTIVE DEPARTMENT,     
Springfield, Illinois, July 26, 1843.     
To his Excellency, Thomas Reynolds,                                   
Governor of Missouri.     

Sir: The demand of Joseph H. Reynolds, Esq. the agent appointed by you to receive Joseph Smith, jr., for a detachment of militia to assist in retaking said Smith, has been duly considered by me, and I now, at the earliest moment, after coming to a conclusion on the subject, proceed to lay before you the result of my deliberations.

The request for a military force is declined. -- The reasons which have influenced me in coming to this determination will be furnished to you at large, as soon as I can obtain leisure to do so.
                  I have the honor to be
                  Very respectfully,
                        Your obedient servant,
                                    THOMAS FORD.

EXECUTIVE DEPARTMENT,     
Springfield, Illinois, Aug. 14, 1843.     
To his Excellency, Thomas Reynolds,                                   
Governor of Missouri.     

Sir: On the 26th day of July last, I had the honor to inform you by letter, that after full consideration, I had come to the conclusion to decline ordering out a detachment of militia to assist in retaking Joseph Smith, jr., who was said to have escaped from the custody of the Missouri agent; and in that letter I engaged to furnish you with my reasons at large for coming to that determination.

It appears that an indictment was found at a special term of the Daviess Circuit Court, Missouri, held on the 5th day of June last, against Smith for treason. Upon this indictment the Governor of Missouri issued a requisition to the Governor of this State, demanding the arrest and delivery of Smith. A writ was thereupon duly issued by me for the apprehension and delivery of Smith as demanded. This writ was put into the hands of an officer of this State to be executed. The officer to whom it was directed immediately arrested Smith, and delivered him to Joseph H. Reynolds, the agent of Missouri, appointed to receive him. The writ has been returned to me as having been fully executed.

After Smith was delivered into the hands of Mr. Joseph H. Reynolds, it is alleged that he was rescued from his custody by the municipal court of the city of Nauvoo.

Affidavits on both sides of the question have been filed before me, and I also have additional information on the subject contained in a report of M. Brayman, Esq., a special agent appointed by myself to investigate and collect facts in relation to the whole matter.

The undisputed facts of the case are that Smith was arrested near Dixon, in Lee county; he was immediately delivered over to Mr. Reynolds: Smith immediately brought an action against Mr. Reynolds for false imprisonment, and held him to bail in the sum of four hundred dollars. -- Mr. Reynolds being in a strange country, and unable to give bail, was taken into custody by the sheriff of Lee county, and held as a prisoner; whilst Reynolds held Smith as his prisoner. The parties finally concluded to get out writs of habeas corpus, and try the legality of the imprisonment in each case. The writs were accordingly issued, returnable before the nearest judicial tribunal; in the circuit in which Quincy is situated, and thereupon all parties proceeded in the direction of Quincy: Smith being in the custody of Reynolds, and Reynolds himself in the custody of the sheriff of Lee county. On the road during their progress, they were met by parties of the citizens of Nauvoo; some or most of whom are said to have been members of the Nauvoo legion; though there is no evidence that they appeared in a military capacity. There was no exhibition of arms of any description, nor was there any military or warlike array; nor was there any actual force used; though Mr. Reynolds testifies that he felt under constraint, and that Smith, soon after meeting the first parties of Mormons enlarged himself from his custody. Mr. Reynolds also testifies, (and there can be no doubt of the fact,) that he was taken to Nauvoo against his will. But whether he was taken there by the command of Smith and his friends, or by the voluntary act of the sheriff of Lee county, who had him in custody, does not appear by any testimony furnished by Mr. Reynolds. The affidavit of the sheriff has not been obtained; though there is evidence on the other side to show that the sheriff of Lee county voluntarily carried Mr. Reynolds to the city of Nauvoo, without any coercion on the part of any one.

After arriving at Nauvoo, a writ of habeas corpus was issued by the municipal court of that city, and Mr. Reynolds was compelled by the authority of the court to produce Mr. Smith before that tribunal. After hearing the case, the court discharged Smith from arrest.

There is much other evidence submitted; but the foregoing is the material part of it to be considered on the present occasion.

Now Sir, I might safely rest my refusal to order a detachment of militia to assist in retaking Smith upon the ground that the laws of this state have been fully exercised in the matter. A writ has been issued for his apprehension. Smith was apprehended; and was duly delivered by the officer of this State, to the agent of the State of Missouri, appointed to receive him. No process, officer, or authority of this state has been resisted or interfered with. I have fully executed the duty which the laws impose on me, and have not been resisted either in the writ issued for the arrest of Smith, or in the person of the officer appointed to apprehend him. If there has been any resistance to any one, it has been to the officer of Missouri, after Smith came to his custody; and every thing had been done on my part which the law warranted me in doing.

Another objection to ordering a detachment of militia, arises out of the militia laws of this State; the forty-third section of which is as follows: --

"Whenever it may be necessary to call into actual service any part of the militia of this State on a requisition of the executive of the United States, on an actual or threatened invasion of this State, or any of the neighboring States or Territories of the United States, the commander-in-chief shall forthwith demand from each division a detachment in proportion to the strength thereof, except as hereinafter excepted; which order shall be delivered by a special messenger to the several commandants of divisions, specifying the number demanded from each division; the time and place of rendezvous, if ordered to march; and if the same be detached under any particular act of the United States to endorse the same on such order: Provided, that whenever the safety of any of the frontier settlements in this State, shall, in the opinion of the Governor, require it, he may exempt the militia in such settlements from being called into service, and make such further provision for the defence [defense] as the necessity of the case may require; which exemption shall be expressed in his orders to commandants of the division; who, together with the commandants of brigades, regiments, battalions and companies, shall govern themselves accordingly; And provided also, that such militia-men may be required to serve as spies on their own frontiers; and that on actual invasion or any extreme emergency, the commander-in-chief, commandants of divisions, brigades, battalions and companies may call on the whole or any part of the militia under their respective commands, as the nature of the case may require, who shall continue in service, if necessary, until the militia can be regularly called out."

The Governor has no other authority in calling out the militia, than that which is contained in this section; by which it appears that there must be either a requisition from the President, an actual or threatened invasion, or some extreme emergency to warrant the Governor in exercising this power. No one of these contingencies has arisen. There has been no requisition from the President; there has been no actual or threatened invasion of the State; nor is this such an extreme emergency as is contemplated by the law. If we allow that force was exhibited and threatened, to compel your agent to carry his prisoner before the municipal court of Nauvoo; that the court there took cognizance of the cause without jurisdiction, and against the consent of your agent, it would amount at most to a riot; and to a resistance of authority in a single case, and that too under color of law and legal process. To constitute an extreme emergency, so as to justify a call for the militia, there ought, in my opinion, to be something more than a mere illegal act; something more than a design to resist the law in a single instance. The design ought to be general as in treason, rebellion, or insurrection; in which cases an universality of design is essential to constitute the offence. If a person resist a constable or sheriff, or other officer charged with the execution of process, with an intention to resist the law in that particular instance; such an act is a misdemeanor at most-is indictable as such, and may be met by the posse comitatus. But something more than a mere misdemeanor must have been contemplated by the law. It would seem to me that it could never have been intended that the Governor should call out the militia in every case where a constable or sheriff may be resisted; and even in a case of a riotous resistance, it would not be an extreme emergency without some military array, some warlike show, or some threatened resistance to the government itself.

In this case, there had been no warlike array in the proceedings of Smith and his friends: no exhibition of arms, and no actual force of an illegal character. Mr. Reynolds was not subjected to illegal imprisonment. He was arrested on lawful process, and although that process may have been wrongfully obtained, yet his arrest was not riotous or unlawful, but according to the forms of law. Mr. Reynolds continued in the custody of the sheriff by virtue of that process until he was taken to Nauvoo; and although he was taken to that city against his will, and was by that means compelled to take his prisoner there, yet was he taken by lawful process; by an authorized officer who acted, so far as I have any evidence, freely and voluntarily in so doing. In no one aspect of the case can I consider the present an extreme emergency, warranting a call for the militia according to the provisions of law in this State.

Thus, sir, I have stated to you the principal reasons which have influenced me in refusing to order a call of the militia. To my mind they are entirely satisfactory; and I hope they will meet with the approval of your excellence, and the citizens of Missouri.

I have the honor to be your excellency's most obedient servant.             THOMAS FORD.


Notes: (forthcoming)