Trial Report, 12–15 May 1844, as published in Times and Seasons [F. M. Higbee v. JS–A on Habeas Corpus]
Trial Report, , Hancock Co., IL, [12–15] May 1844, F. M. Higbee v. JS–A on Habeas Corpus (Nauvoo, IL, Municipal Court 1844). Published [ca. 18 May 1844] in “Municipal Court,” Times and Seasons, 15 May 1844, 5:536–541.
nicipal court at , this 6th day of May, in the year of our Lord, one thousand eight hundred and forty-four.
Clerk, M. C., C.
I hold the within named Joseph Smith, Senior, under arrest, by virtue of a .
To May Term, A. D. 1844.
The day of his caption, May 6th, 1844.
To damage, five thousand dollars.
By , D. S.
State of Illinois,)
The People of the State of : To the of said : . . . GREETING.
We command you that you take Joseph Smith, if to be found within your , and him safely keep, so that you have his body before the circuit court of said county of , on the first day of the next term thereof, to be holden at the court house in on the third Monday in the month of May, instant, to answer , of a plea of the case; damage, the sum of five thousand dollars as he says; and you have then there this writ, and make due return thereon, in what manner you execute the same.
Witness, , Clerk of said circuit court, at this first day of May, in the year of our Lord one thousand eight hundred and forty-four.
By , Deputy.
The is directed to hold the within named defendant to bail in the sum of five thousand dollars.
By , Deputy.
This is a true copy of the original, now in the possession of , sheriff of .
By , Deputy.
STATE OF ILLINOIS,)
City of .)
To Mr. :—
Sir, You will please to take notice that Joseph Smith, Senior, has petitioned for a writ of habeas corpus, from the Municipal Court of said , praying that he may be liberated from the custody of , Deputy sheriff of , by whom he is held in custody on a , issued by the circuit court of , on the first day of May, instant, to answer , on a plea of the case, &c.; which writ is granted, and you will have the opportunity to appear before the Municipal court, at 10 o’clock, A. M., on the 7th of May, instant, at the Mayor’s Council Chamber, in said , and show cause why said Joseph Smith, Senior, should not be liberated on said habeas corpus.
Witness my hand and seal of Court, this 6th day of May, 1844.
, Clerk, M. C., C.
The above trial is deferred until Wednesday, the 8th instant, 10 o’clock, A M.
I have served the within, by reading to the within named .
did not appear either by himself or counsel.
Mr. then said that the petition and papers have been read in your hearing; it is a petition for an habeas corpus on the grounds— 1st; 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 any thing: 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 determine whether we are [p. 537]