Springfield, Illinois, January 19, 1843.
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 The passage of the bill was resisted on the ground, that these charters could not be repealed without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policy required their amendment, and not that they should be repealed altogether.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.
CIRCUIT COURT OF THE UNITED STATES,
FOR THE DISTRICT OF ILLINOIS.
December Term, A. D. 1842.
Before the Hon. Nathaniel Pope,
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 --
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
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
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.