Times and Seasons, 15 August 1842

  • Source Note
Page 888
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ies of Smith and to be brought before the said court but the officers in charge of these men refused to obey its call; though after some deliberation, they left them in charge of the , without the original writ by which they were arrested, and by which only they could be retained, and returned back to for further instruction; thus Messrs. Smith and were free from the arrest, as the had no authority to hold them in custody; some two or three days after the aforesaid officers returned, for the purpose of executing the ’s order, without paying attention to the writ of habeas corpus issued by the municipal court; but Messrs. Smith and were absent.
In a free government every person’s rights and priveleges are the same; no extraordinary process can issue legally, nor no extra-judicial act be required; justice, like her representative goddess, is blind to appearances, and favors no one. In this point of view, then, let us legally examine the case in question:— makes an affidavit in , and charges one with “shooting with intent to kill” on the night of the sixth of May, 1842, and that the said had fled from justice to the State of . Shooting with intent to kill, and alive two or three months after to swear to it, may be set down as insufficient grounds for a writ from the Gov. of one state, to demand a person as a fugative from justice in another state; for, aught that appears to the contrary, he might have shot in his own defence and be justifiable; as the charge is not grounded on the wilful, malicious, or felonious intent, without the fear of God before his eyes, to murder; the affidavit, is therefore, not sufficient for the apprehension, detention and transportation of the said to the courts of . Here we deny that the arrested is the one intended in the writ, this being not guilty.
If knew, of himself, the fact that shot at him with intent to kill, why did he delay the prosecution some two or three months? If he obtained his knowledge from a second or third person, why not avail himself of their affidavits in the body of the writ?
Again, charges one Mr. Joseph Smith with being “accessary before the fact to an assault with intent to kill,” on the night of the sixth of May, 1842. This must allude to some other Joseph Smith, as the Joseph Smith of this , was in , on the aforesaid sixth of May 1842, and on the next day he was at his post as Lt. Gen. of the Nauvoo Legion. Nor can it be proved that he has been in the state of for the last three years.
But for the sake of argument admit the language of the writ, and Joseph Smith as an accessary before the fact, with intent to kill, must have aided or abetted by words, or by means, while in the state of , and can not come under the purview of the fugitive act, having not fled from justice from another state;—and, according to the express language of the constitution; “he could not be liable to be transported out of the state for an offence committed within the same.” An accessary before the fact in manslaughter is an anomaly—and now if the Joseph Smith of , has committed a crime of the nature charged in the writ, which we deny in toto, he should be held amenable to the laws of and in the ordinary course of procedure by inditement, in accordance with the right of the constitution, which says that he should have “a speedy public trial by an impartial jury of the vicinage.”
Judging now from all the facts of the case, taking the two affidavits together, we must say that the whole forms but a poor excuse for executive interference, and when properly weighed by good judges of law in criminal jurisprudence, will be found wanting in all the important counts which constitute a fair case.
As to the writ of habeas corpus, issued by the municipal court of the city of , it was not acted upon, though we believe that so long as it was not incompatible with the spirit and meaning of the constitution of the , and of the constitution of the , its power was sovereign, as to the rights and privileges of citizens, granted to them by the city charter, having these express privileges, in words as follows: “to make ordain, establish and execute all such ordinances, not repugnant to the constitution of the and of this , as they may deem necessary for the peace, benefit, good order, regulation, convenience and cleanliness of the ”—and “the municipal court shall have power to grant writs of habeas corpus in all cases arising under the ordinances of the City Council.”
Now, it is well known that if this court exceeded the bounds of the chartered power, or transcended the limits of the constitution of the , or , it could be made to respond in a writ of quo warranto; and, as a writ of habeas corpus can only test the validity, not the virtue of a process, (as testimony to prove the guilt or innocence of a person—under an in [p. 888]
ies of Smith and to be brought before the said court but the officers in charge of these men refused to obey its call; though after some deliberation, they left them in charge of the , without the original writ by which they were arrested, and by which only they could be retained, and returned back to for further instruction; thus Messrs. Smith and were free from the arrest, as the had no authority to hold them in custody; some two or three days after the aforesaid officers returned, for the purpose of executing the ’s order, without paying attention to the writ of habeas corpus issued by the municipal court; but Messrs. Smith and were absent.
In a free government every person’s rights and priveleges are the same; no extraordinary process can issue legally, nor no extra-judicial act be required; justice, like her representative goddess, is blind to appearances, and favors no one. In this point of view, then, let us legally examine the case in question:— makes an affidavit in , and charges one with “shooting with intent to kill” on the night of the sixth of May, 1842, and that the said had fled from justice to the State of . Shooting with intent to kill, and alive two or three months after to swear to it, may be set down as insufficient grounds for a writ from the Gov. of one state, to demand a person as a fugative from justice in another state; for, aught that appears to the contrary, he might have shot in his own defence and be justifiable; as the charge is not grounded on the wilful, malicious, or felonious intent, without the fear of God before his eyes, to murder; the affidavit, is therefore, not sufficient for the apprehension, detention and transportation of the said to the courts of . Here we deny that the arrested is the one intended in the writ, this being not guilty.
If knew, of himself, the fact that shot at him with intent to kill, why did he delay the prosecution some two or three months? If he obtained his knowledge from a second or third person, why not avail himself of their affidavits in the body of the writ?
Again, charges one Mr. Joseph Smith with being “accessary before the fact to an assault with intent to kill,” on the night of the sixth of May, 1842. This must allude to some other Joseph Smith, as the Joseph Smith of this , was in , on the aforesaid sixth of May 1842, and on the next day he was at his post as Lt. Gen. of the Nauvoo Legion. Nor can it be proved that he has been in the state of for the last three years.
But for the sake of argument admit the language of the writ, and Joseph Smith as an accessary before the fact, with intent to kill, must have aided or abetted by words, or by means, while in the state of , and can not come under the purview of the fugitive act, having not fled from justice from another state;—and, according to the express language of the constitution; “he could not be liable to be transported out of the state for an offence committed within the same.” An accessary before the fact in manslaughter is an anomaly—and now if the Joseph Smith of , has committed a crime of the nature charged in the writ, which we deny in toto, he should be held amenable to the laws of and in the ordinary course of procedure by inditement, in accordance with the right of the constitution, which says that he should have “a speedy public trial by an impartial jury of the vicinage.”
Judging now from all the facts of the case, taking the two affidavits together, we must say that the whole forms but a poor excuse for executive interference, and when properly weighed by good judges of law in criminal jurisprudence, will be found wanting in all the important counts which constitute a fair case.
As to the writ of habeas corpus, issued by the municipal court of the city of , it was not acted upon, though we believe that so long as it was not incompatible with the spirit and meaning of the constitution of the , and of the constitution of the , its power was sovereign, as to the rights and privileges of citizens, granted to them by the city charter, having these express privileges, in words as follows: “to make ordain, establish and execute all such ordinances, not repugnant to the constitution of the and of this , as they may deem necessary for the peace, benefit, good order, regulation, convenience and cleanliness of the ”—and “the municipal court shall have power to grant writs of habeas corpus in all cases arising under the ordinances of the City Council.”
Now, it is well known that if this court exceeded the bounds of the chartered power, or transcended the limits of the constitution of the , or , it could be made to respond in a writ of quo warranto; and, as a writ of habeas corpus can only test the validity, not the virtue of a process, (as testimony to prove the guilt or innocence of a person—under an in [p. 888]
Page 888