Chapter XII (1)

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.