History, 1838–1856, volume F-1 [1 May 1844–8 August 1844]

  • Source Note
  • Historical Introduction
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<​May 8​> the insufficiency of the writ, and other causes assigned. The insufficiency of the writ is sufficient to discharge the prisoner; it is the privilege and option of this court if the writ is invalid. It is the privilege of the prisoner to have all the matters investigated, in order to prove that the prosecutor is joined in with other persons in a conspiracy to take away Mr. Smith’s life. Although it is competent for the court to discharge on account of the insufficiency of the writ, yet we want an examination into the matters, in order that all may be understood. All warrants should disclose the crimes known to the court, so that the prisoner might know what answer to make; the prisoner might have had to lay in jail six months because he knows nothing what he is charged with in the writ; it might be that he is charged with debt; that he had to pay to the sum of five thousand dollars, or anything. There is no action specified; is it meant for trespass, for mal treating, beating, or slander, or what other crime? so that the damage of five thousand dollars might be known for what it is. The writ is void for want of substance and form; all who are familiar with law, common sense, or justice, must know that it is indefinite— no charge defined. If we are not released here we shall be released in the circuit court on account of the insufficiency, but we are now willing to investigate the merits of the case. We know nothing but from information from other sources, and we want this court to determinate whether we are held to any charge to ; we have given him notice to attend here, if he has any cause to keep us here. I propose to bring in the testimony of the prisoner; he has averred certain facts; he is ready to make oath of them if your honors require it. There is no ordinance against the prisoner taking his oath, it is within the province of the court to allow him to do so; it is the privilege of the court in any case to hear the plaintiff; law is founded on justice.’
said:
‘It has been truly stated that this court has nothing before it on which it can act; there is a prisoner brought into court who was in custody within the province of your honors; those papers have been read but they disclose no crime— no guilt; there are no merits to try; they present no meritorious cause of action; they do not present the prisoner’s guilt in any form whatever; what are the merits? Shall we try him for horse stealing, burglary, arson, or what? You shall hear the merits if you can find them out; then the court has power to try. Is it burglary, arson, or something else? What is the point to try? Those papers know no crime; this Court knows no crime; there are no merits— no existence of any thing; it is an ignis fatuus— a will-o’-the-wisp, to arrest somebody for doing nothing— to have the privilege of trying a lawsuit about nothing. The court never says ever preferred any thing; if there can be any merits hatched up, we will try them.’
“Joseph Smith said:
‘I am satisfied that this thing can be brought to trial; it appears I am a prisoner, and by the authority of the Circuit Court. I petitioned this court for a hearing; I am a prisoner, and aver that it is a malicious prosecution, and a wicked conspiracy, got up by men for the purpose of harassing me, and decoying me into their hands. I want to show that this man has joined a set of men who have entered into a conspiracy to take away my life. After hearing the case you have power to punish, imprison, or fine, or any thing you please; you have a right to punish the offender; if I am a criminal you have a right to punish me, and send me to the circuit court; but if I am as innocent as the angels of heaven, you have power to send the prosecutor to trial if crime is proved against him. They have no merit in their cause; I want to show up their conspiracy— that these men [p. 10]
May 8 the insufficiency of the writ, and other causes assigned. The insufficiency of the writ is sufficient to discharge the prisoner; it is the privilege and option of this court if the writ is invalid. It is the privilege of the prisoner to have all the matters investigated, in order to prove that the prosecutor is joined in with other persons in a conspiracy to take away Mr. Smith’s life. Although it is competent for the court to discharge on account of the insufficiency of the writ, yet we want an examination into the matters, in order that all may be understood. All warrants should disclose the crimes known to the court, so that the prisoner might know what answer to make; the prisoner might have had to lay in jail six months because he knows nothing what he is charged with in the writ; it might be that he is charged with debt; that he had to pay to the sum of five thousand dollars, or anything. There is no action specified; is it meant for trespass, for mal treating, beating, or slander, or what other crime? so that the damage of five thousand dollars might be known for what it is. The writ is void for want of substance and form; all who are familiar with law, common sense, or justice, must know that it is indefinite— no charge defined. If we are not released here we shall be released in the circuit court on account of the insufficiency, but we are now willing to investigate the merits of the case. We know nothing but from information from other sources, and we want this court to determinate whether we are held to any charge to ; we have given him notice to attend here, if he has any cause to keep us here. I propose to bring in the testimony of the prisoner; he has averred certain facts; he is ready to make oath of them if your honors require it. There is no ordinance against the prisoner taking his oath, it is within the province of the court to allow him to do so; it is the privilege of the court in any case to hear the plaintiff; law is founded on justice.’
said:
‘It has been truly stated that this court has nothing before it on which it can act; there is a prisoner brought into court who was in custody within the province of your honors; those papers have been read but they disclose no crime— no guilt; there are no merits to try; they present no meritorious cause of action; they do not present the prisoner’s guilt in any form whatever; what are the merits? Shall we try him for horse stealing, burglary, arson, or what? You shall hear the merits if you can find them out; then the court has power to try. Is it burglary, arson, or something else? What is the point to try? Those papers know no crime; this Court knows no crime; there are no merits— no existence of any thing; it is an ignis fatuus— a will-o’-the-wisp, to arrest somebody for doing nothing— to have the privilege of trying a lawsuit about nothing. The court never says ever preferred any thing; if there can be any merits hatched up, we will try them.’
“Joseph Smith said:
‘I am satisfied that this thing can be brought to trial; it appears I am a prisoner, and by the authority of the Circuit Court. I petitioned this court for a hearing; I am a prisoner, and aver that it is a malicious prosecution, and a wicked conspiracy, got up by men for the purpose of harassing me, and decoying me into their hands. I want to show that this man has joined a set of men who have entered into a conspiracy to take away my life. After hearing the case you have power to punish, imprison, or fine, or any thing you please; you have a right to punish the offender; if I am a criminal you have a right to punish me, and send me to the circuit court; but if I am as innocent as the angels of heaven, you have power to send the prosecutor to trial if crime is proved against him. They have no merit in their cause; I want to show up their conspiracy— that these men [p. 10]
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