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.
held to any charge to ; we have given him notice to attend here; if he has any cause to keep him here. I propose to bring in the testimony of the prisoner, he has averred certain facts; he is ready to make oath of it if your honor require it; there is no ordinance against the prisoner taking his oath; it is within the province of the court to do so, it is the privilege of the court in any case to hear the plaintiff in any cause; law is founded on justice; there can no iniquity arise from any thing in this matter.
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 honor; 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 is no merits, no existence of any thing, it is an ignus fatuus, a will-o’wisp; to arrest somebody for doing nothing; to have the privilege of trying a law suit about nothing; the court never says ever prefered any thing, if there can any merits be hatched up, we will try it.
J. Smith was 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 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 are working the basest corruption, they have lifted up their hands against innocence; you have power to hear the petitioner on his oath. I will show you a precedent. Look at the federal court of this district; the case was made out by affidavit, which I swore to before the court.
The habeas corpus is granted on the testimony of the petitioner, it is the law in Blackstone, that where no other matter is in existence, and the prisoner swears he is innocent, and his character for truth is supported by good testimony he must be discharged, and then goes away as free as the proud eagle. If I have the privilege of testimony under oath, to the facts that they make slander of, then they cannot do any thing with it. Suppose that I am an eye witness to the crime of adultery, or any other crime, and know verily for myself, that the man is guilty of adultery, or other crime, and I speak of it, the man may sue me for damages although I know the man to be guilty, but if I swear to it in a court, he cannot hurt me. If I have the privilege of giving testimony under oath, they can never do any thing with me, but if you discharge me on the insufficiency of the writ; they can prosecute me again and again, but if you give me a fair hearing they cannot prosecute me again; I want the oath to go to the world; I must make statements of facts in order to defend myself. I must tell the story in its true light, under oath; then I can be forever set free; may I not have the privilege of being protected by law? The peace of myself, my family, my happiness, and the happiness of this city depend upon it.
The court allowed him to proceed with the case.
said, This is a malicious prosecution, and we have averred that it is malicious, and have a right to prove it. There is an insufficiency in the writ, the writ did not show any crime had been committed, and we can show that we are not guilty of any plea in the case; there is no charge or case against us; the whole matter is corrupt, and malicious and wicked.
Joseph Smith sworn— Said, I must commence when was foaming against me, and the Municipal Court, in my house.— said he was grieved at me, and I was grieved at him. I was willing on my part to settle all difficulties, and he promised if I would go before the City Council and tell them he would drop every thing against me forever. I have never mentioned the name of disrespectfully from that time to this; but have been entirely silent about him; if any one has said that I have spoken disrespectfully since then, they have lied: and he cannot have any cause whatever. I want to testify to this court of what occurred a long time before left this city. I was called on to visit ; I went and found him on a bed on the floor.
-[Here follows testimony which is too indeli [p. 538]