History, 1838–1856, volume E-1 [1 July 1843–30 April 1844]

  • Source Note
  • Historical Introduction
Page 1693
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<​August 14​> the nearest judicial tribunal in the circuit in which is situated, and thereupon all parties proceeded in the direction of : Smith being in the custody of , and himself in the custody of the Sheriff of . On the road during their progress, they were met by parites of the citizens of ; some or most of whom are said to have been members of the Nauvoo legion, though there is no evidence that they appeared in a military capacity. There was no exhibition of arms of any description, nor was there any military or warlike array, nor was there any actual force used, though testifies that he felt under constraint, and that Smith, soon after meeting the first parties of Mormons enlarged himself from his custody.— also testifies, (and there can be no doubt of the fact,) that he was taken to against his will. But whether he was taken there by the command of Smith and his friends, or by the voluntary act of the Sheriff of , who had him in custody does not appear by any testimony furnished by . The affidavit of the Sheriff has not been obtained; though there is evidence on the other side to show that the Sheriff of voluntarily carried to the city of , without any coercion on the part of any one.
After arriving at , a writ of was issued by the Municipal court of that , and was compelled by the authority of the court to produce Mr Smith before that tribunal. After hearing the case, the court discharged Smith from arrest.
There is much other evidence submitted; but the foregoing is the material part of it, to be considered on the present occasion.
Now, Sir, I might safely rest my refusal to order a detachment of militia to assist in retaking Smith upon the ground that the laws of this have been fully exercised in the matter. A writ has been issued for his apprehension: Smith was apprehended; and was duly delivered by the officer of this , to the of the state of , appointed to receive him. No process, officer, or authority of this has been resisted or interfered with. I have fully executed the duty which the [HC 5:534] laws impose on me, and have not been resisted either in the writ issued for the arrest of Smith, or in the person of the officer appointed to apprehend him. If there has been any resistance to any one, it has been to the officer of , after Smith came to his custody; and every thing had been done on my part which the law warranted me in doing.
Another objection to ordering a detachment of militia, arises out of the militia laws of this ; the forty third Section of which is as follows:
“Whenever it may be necessary to call into actual service any part of the militia of this on a requisition of the executive of the , on an actual or threatened invasion of this , or any of the neighboring States or Territories of the , the commander-in-chief shall forthwith demand from each division a detachment in proportion to the strength thereof, except as hereinafter excepted, which order shall be delivered by a special messenger to the several commandants of divisions, specifying the number demanded from each division; the time and place of rendezvous, if ordered to march; and if the same be detached under any particular act of the to endorse the same on such order; provided [p. 1693]
August 14 the nearest judicial tribunal in the circuit in which is situated, and thereupon all parties proceeded in the direction of : Smith being in the custody of , and himself in the custody of the Sheriff of . On the road during their progress, they were met by parites of the citizens of ; some or most of whom are said to have been members of the Nauvoo legion, though there is no evidence that they appeared in a military capacity. There was no exhibition of arms of any description, nor was there any military or warlike array, nor was there any actual force used, though testifies that he felt under constraint, and that Smith, soon after meeting the first parties of Mormons enlarged himself from his custody.— also testifies, (and there can be no doubt of the fact,) that he was taken to against his will. But whether he was taken there by the command of Smith and his friends, or by the voluntary act of the Sheriff of , who had him in custody does not appear by any testimony furnished by . The affidavit of the Sheriff has not been obtained; though there is evidence on the other side to show that the Sheriff of voluntarily carried to the city of , without any coercion on the part of any one.
After arriving at , a writ of was issued by the Municipal court of that , and was compelled by the authority of the court to produce Mr Smith before that tribunal. After hearing the case, the court discharged Smith from arrest.
There is much other evidence submitted; but the foregoing is the material part of it, to be considered on the present occasion.
Now, Sir, I might safely rest my refusal to order a detachment of militia to assist in retaking Smith upon the ground that the laws of this have been fully exercised in the matter. A writ has been issued for his apprehension: Smith was apprehended; and was duly delivered by the officer of this , to the of the state of , appointed to receive him. No process, officer, or authority of this has been resisted or interfered with. I have fully executed the duty which the [HC 5:534] laws impose on me, and have not been resisted either in the writ issued for the arrest of Smith, or in the person of the officer appointed to apprehend him. If there has been any resistance to any one, it has been to the officer of , after Smith came to his custody; and every thing had been done on my part which the law warranted me in doing.
Another objection to ordering a detachment of militia, arises out of the militia laws of this ; the forty third Section of which is as follows:
“Whenever it may be necessary to call into actual service any part of the militia of this on a requisition of the executive of the , on an actual or threatened invasion of this , or any of the neighboring States or Territories of the , the commander-in-chief shall forthwith demand from each division a detachment in proportion to the strength thereof, except as hereinafter excepted, which order shall be delivered by a special messenger to the several commandants of divisions, specifying the number demanded from each division; the time and place of rendezvous, if ordered to march; and if the same be detached under any particular act of the to endorse the same on such order; provided [p. 1693]
Page 1693