History, 1838–1856, volume D-1 [1 August 1842–1 July 1843]

  • Source Note
  • Historical Introduction
Page 1449
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<​January 6​> Delivered a copy of the within order to Governor and Attorney General of the State of — December 31. 1842. Marshall
In the matter of Joseph Smith— On Habeas Corpus— Copy of order— Marshalls fees Serving on 2— 4.00 Returning .12 = 4.12
And afterwards to wit on the 2nd. day of January A.D. 1843 Attorney for said Petitioner filed the written denial of the said Petitioner, of the matters and things set forth in the return to the said writ of Habeas Corpus which denial is in the words and figures following. viz.
Circuit Court of the — District of
In the matter of Joseph Smith upon Habeas Corpus.
Joseph Smith being brought up on Habeas Corpus before this Court comes and denies the matter set forth in the return to the same in this, that he is not a fugitive from the justice of the State of ; but alleges and is ready to prove that he was not in the State of at the time of the Commission of the alleged crime set forth in the affidavit of , nor had he been in said for more than three years previous to that time, nor has he been in that since that time— but on the contrary at the time the said alleged assault was made upon the said as set forth in said Affidavit the said Smith was at in the County of , in the State of , and that he has not fled from the justice of the State of and taken refuge in the State of , as is most untruly stated in the warrant upon which he is arrested, and that the matter set forth in the requisi[HC 5:240]tion of the of and in the said Warrant are not supported by oath—
Joseph Smith
State of ss. Joseph Smith being duly sworn saith that the matter and things set forth in the foregoing statement are true— Joseph Smith
Sworn and subscribed to before me this 2nd. day of Jany. 1843— Clk
And afterwards to wit, on the same day and year last aforesaid the following order was made in this cause. viz.
In the matter of Joseph Smith. On Habeas Corpus—
At this day comes the said Joseph Smith, and by his Attorney files his written denial verified by Affidavit, of the matters and things set forth in the return to the writ of Habeas Corpus issued in this cause— And at the same time also comes Attorney General of the State of , and on his motion it is ordered that this cause be continued for hearing until Wednesday morning next—
And afterwards to wit on the 4th. day of January 1843 Attorney General of the State of filed his objections to the Jurisdiction of this Court in this cause and moved to dismiss the proceedings herein, which said motion and objections are in the words and figures following viz:—
In the Circuit Court of the State of — In the matter of Joseph Smith
Attorney General of moves the Court to dismiss the proceedings herein for the reason that this Court has no jurisdiction. 1st. The arrest & detention of said Smith was not under or by Color of authority of the , or any of the Officers of the but under and by color of authority of the State of , and by the Officers of . 2nd. When a fugitive from Justice is arrested by authority of the Governor of any State upon the requisition of any other Governor of another State the Courts of Justice neither State or Federal have any authority or jurisdiction to enquire into any facts behind the . Writ. Atty. Genl. of — [HC 5:241] [p. 1449]
January 6 Delivered a copy of the within order to Governor and Attorney General of the State of — December 31. 1842. Marshall
In the matter of Joseph Smith— On Habeas Corpus— Copy of order— Marshalls fees Serving on 2— 4.00 Returning .12 = 4.12
And afterwards to wit on the 2nd. day of January A.D. 1843 Attorney for said Petitioner filed the written denial of the said Petitioner, of the matters and things set forth in the return to the said writ of Habeas Corpus which denial is in the words and figures following. viz.
Circuit Court of the — District of
In the matter of Joseph Smith upon Habeas Corpus.
Joseph Smith being brought up on Habeas Corpus before this Court comes and denies the matter set forth in the return to the same in this, that he is not a fugitive from the justice of the State of ; but alleges and is ready to prove that he was not in the State of at the time of the Commission of the alleged crime set forth in the affidavit of , nor had he been in said for more than three years previous to that time, nor has he been in that since that time— but on the contrary at the time the said alleged assault was made upon the said as set forth in said Affidavit the said Smith was at in the County of , in the State of , and that he has not fled from the justice of the State of and taken refuge in the State of , as is most untruly stated in the warrant upon which he is arrested, and that the matter set forth in the requisi[HC 5:240]tion of the of and in the said Warrant are not supported by oath—
Joseph Smith
State of ss. Joseph Smith being duly sworn saith that the matter and things set forth in the foregoing statement are true— Joseph Smith
Sworn and subscribed to before me this 2nd. day of Jany. 1843— Clk
And afterwards to wit, on the same day and year last aforesaid the following order was made in this cause. viz.
In the matter of Joseph Smith. On Habeas Corpus—
At this day comes the said Joseph Smith, and by his Attorney files his written denial verified by Affidavit, of the matters and things set forth in the return to the writ of Habeas Corpus issued in this cause— And at the same time also comes Attorney General of the State of , and on his motion it is ordered that this cause be continued for hearing until Wednesday morning next—
And afterwards to wit on the 4th. day of January 1843 Attorney General of the State of filed his objections to the Jurisdiction of this Court in this cause and moved to dismiss the proceedings herein, which said motion and objections are in the words and figures following viz:—
In the Circuit Court of the State of — In the matter of Joseph Smith
Attorney General of moves the Court to dismiss the proceedings herein for the reason that this Court has no jurisdiction. 1st. The arrest & detention of said Smith was not under or by Color of authority of the , or any of the Officers of the but under and by color of authority of the State of , and by the Officers of . 2nd. When a fugitive from Justice is arrested by authority of the Governor of any State upon the requisition of any other Governor of another State the Courts of Justice neither State or Federal have any authority or jurisdiction to enquire into any facts behind the . Writ. Atty. Genl. of — [HC 5:241] [p. 1449]
Page 1449