Account of Hearing, 4 January 1843 [Extradition of JS for Accessory to Assault]

Document Transcript

Dec <​Jan​>— 4. Wednesday 9 A. Repared to court Room— in ’s officce a few moments
court opened—— while Docket was reading the Ladies came in & took their seats by the side of the [illegible] 6 <​Ladies​> By court “Gentlemn of the Bar any motions. this morning?[”] sworn . <​ —​> [p. 50] matter of Joseph Smith — (2 Ladies come in)
Attory. Gen motion to no Justice Jurisdiction <​(motion of )​>
no jurisdicti[o]n to enquire into any facts behind the writ
<​By the court​>
court will take up the case entire.
— Josph Smith is in custody— under color of authority of the accesary to the shooting of — [p. 51] on the 6[th]. of May
Read the affidavit of 10 witnesses.—
& sworn to affdavit— affidavit. read.
— I am much at a loss how I got into this case as prosecuti[n]g attorney. I dont. know.— <​why th[e]​> district attorny— admitted.—— <​should bring this case in this court. which I contend has​> no Jurisdiction <​except of common Law.—​> of common Law Jurisdiction— 2d condensed report— p 37 page— Ballman— Courts of have no authoritey where there is no Law. evident on the face of the [p. 52] papers that he is not arrested under the authority of the but of our state.— Statute of our own state <​has Jurisdiction​>— not contradictory to laws— <​Read​> Gales Statu[t]e 315. Page— fugitives f[r]om Justice.
whole proceedings illegal untill they can shew is that this law is unconstitutio[n]al— complia[n]ce on the part of the — with law— <​Read​> Conklins Treaties 51.— Page— there is no general jurisdiction— in this case— the only autho[r]ity of this court— in the Digest read.— Conklins Treaties 85.— if sheriff refuses to give up a prisoner [p. 53] he has all the force<​of the state to​> to back him <​Read​> 2d cond[e]nsed 55.— washi[n]gton reports &c
The party attempts to prove an allibi— can such a defence be made here— can the court try this part of the case that smith was in this state.— no court <​is​> competent to try the case, if <​we​> go behind the papers then we can try the whole case;— we are trying the guilt or innocencce.— Court. <​said the​> qustion is not the guilt or innocenc[e]. or but is he a fugitive. . . . <​ said​> if the court could understa[n]d me. <​court​> the court does understa[n]d you perfe[c]tly. if [p. 54] . if the papers are sufficient— you abandon the papers & go into the case. the whole case.— guilt or innocence— did he flee f[r]om Mo? is <​he​> a fugitive f[r]om Justice? is bound to surrender him as a fugitive. has complied with the statute— <​By the​> Court: <​Do you say the​> Judge of the S. C. [supreme court] of could not issue— a ?. [I] dont deny .— party brought up has no right <​to​> go into trial on any of the facts behind Record— <​read​> Gordons Digest— [blank] Charles 2d— Grant Habeus corpus <​Act​>— Large Majority of English Judges submittd to the 12 by Parliamnt 9 Wendell [p. 55] 201 212 page if he prophe[s]ied that should be shot.— where should he be tried? in .— Some instances in , &c &c— on accou[n]t of Slaves &c— one indepedant [independent] state equals anothr indepedat state. decision made for political effect in those cases
Positivily, I take <​it​> this cou[r]t has no Jurisdiction— no disrespect to court.— party not held by united states Laws. but of . <​subject to the Jurisdiction of​> our own Governm[en]t.— if they had a right— it would be only to try the papers. our own Statutes cover the ground. & no other courts have authority. <​the​> Lawyers agree with me. [p. 56] with few Exception.— no Jurisdicti[o]n— no court has power to try the papers.—
. <​ is​> in the dark— <​does not know​> why <​he is made the​> prosecutor— he <​is​> not a prosecutor— but <​is permitted to come in here—​> a matter of corttesy.— fugitives— <​must be taken by​> virtue of the constituti[o]n of the Kents Comme[n]taries 2d vol 32 in th[e] notes. Jud[i]cial power extends in all cases— where the action arises under laws—— Tremendoeas power of the executive to deliver up an affidavit to enquire— into the fact. greater than any Emperor ever used to be transplantd from his home.— Transplanting of Individuals from these colenies [p. 57] to great Britain— 7 years war f[r]amers of Constitution would vest the Governers of the States with the same powers of oppression.— <​suppose he is gui[l]ty in view of the retributive Justice due for the murders &—​>
— affidavit. that Joe Smith has been accesary <​to the shooting of himself​>.— this p[e]ople whom he has compelled to flee f[r]om — <​which does the fleeing refer to​> f[r]om the shooting of — or the fleeing of this people from the Mob
. 1st question by — <​that this court has​> no Jurisdict[io]n to relieve— & says that this is the opinion of the bar— <​I have a​> great respct for the bar— <​but a​> contempt for out door <​& bar room​> opinion; <​without thought. or reading​> this court has exclusive Jurisdiction. Law <​Prisonr​> is [p. 58] arrested under Con of — & Law— arising under the Constitution.— ◊◊w <​power​> 2 sec 4[th] art[icle] Constitution delive[re]d up on dem[a]nd made <​by dema[n]d made under color of Law—​> any Executive of the Union— shall dem[a]nd. & produce copy inditcmnt [indictment] or affidavit. <​the fugitive shall be​> arrestd & securd— was arrested by law of this state— no “<​most​> untruly has it been statd here” Does call <​for him​> by authority of the Laws of or ? No!— by contitutin [constitution] & laws of the .
<​​> b[e]ing a good Gov & good Lawyer & says Requsitin [Requisition]. f[r]om Gov Ford was reqeted [requested] to issue [p. 59] this copy <​because the original writ was out of our reach​>—— <​Constituitn [Constitution] & laws of​> & of this states. law of this state is a furtherance of the is a null & void.— <​the Prisonr looks to​> this C. [court?] for redressed — <​he is​> a prisoner of <​& the​> Govrs— one in issuing Requsitin [Requisition] the other in Warrant.— acted as appointd appointees of the .— bound by oath to support the constituti[o]n of . have done so—— govr. in issuing this warrant acts as agent in carr[y]ing into effect th[e] laws of th[e] —— in custody Under — can he apply to to state courts? would not conflict<​s​> ensue which have [p. [60]] been anticipated by opposite Council 12th Wendell 301 311 a fugitive slave. <​in​> — Jack negro man <​vs​> Mary Martin.— fled f[r]om Lousana [Louisiana] to . pu[r]sued <​arrestd, & taken on​> writ of — action of congress is exclusive on actions— being under law of Congress— decision of the court was they <​(State)​> had no Jurisdicti[o]n:— has not my Client. Joseph Smith. the Rights of a negro?— he has been arrestd under a Law of congress— & must seek redress— before the federal court.—
A war <​betwe[e]n betwe[e]n the Slave &​> non-Slave holding states <​and the non-slave holded states—​> have passed laws— & Juries have had— virgin[i]a passed [p. 61] laws— to reqire bonds of masters of vassels— by retaliation.
Priggs— Comweath of fugitives from Justice & Savvery <​Slaves​> on the same footing.— Congress having passed Laws— the State laws are void.— 5 wheaten— where Congress has legislatd— it is not competent for State<​s​> to Legislate, all power <​is​> in congress— in relation to fugitive Slaves— (Story) last January term S. C. of aid of States is not wantd. they cannot intrude themselves.— Federal Governmnt is competent.
This Court has not only Jurisdicti[o]n [p. 62] but. it is the only court I could bring this case.— Judic[i]al power shall extend to all cases arising under the constitution <​& laws​> of the .— I hope the Gent of the bar— will not give th[e]ir opinons without readi[n]g their books thesee out door opinions— <​are a disgrace to the profession.—​>
Has this court power to issue —? it has— is the return suffi[cie]nt to hold the prisoner in custody without furthr testim[o]ny?
unless it appears on th[e] testimo[n]y that he is a fugitive. it is not suff[i]cient.— affidivit read.— <​it​> does not state he ever was in . that he even was in the [p. 63] state of <​​>— <​it​> states nothi[n]g that would bri[n]g him within the Law of the he must have fled.— shall flee.— knew what he was about. he knew. that Joe Smith had not been in . since the Mormons were murderd— he dare not perjure himself. he thought his Gov— would certify to a lie & save him from perju[r]y
Representd. <​to him​> who made the false & foul statem[en]t that Joe Smith had fled? no body! would swear to it. that the citizns of are not to. be [p. 64] imprisond on reprentatin [representation] to —— sent over the Great father of waters to .— by some necromancy of. <​ajdudictin [adjudication]​> beyo[n]d our controol.—
Copy <​the​> progress of Error. little <​ affidavit— says he was in Ill— that it is was repre[se]nted to him. who reported it​> beyond— Requisiti[o]n— s Writ appears from affidavit. sp◊◊d before — while— writing. no man ought to flee from the Justice of
1st position <​is for​>. the court <​to​> examine all the papers— <​there is not​> a particle of testimony that Joseph has fled from would not have givn up his dog on such a requsitin [requisition]— <​the​> Gent says <​it is​> not [p. 65] necessary it should appear <​that he had fled.​>—— th[e] thought it necessary. or why insert the falsehood?
<​He​> is not subjct to be transportd till <​it is p[r]oved that he is a fugitive​> [blank] <​they​> must prove he has fled— if he is guilty can this court deliver him up?— No!— he must have fled
the Questi[o]n is whither he shall be transpotd [transported] to anothr state or tried on his own soil? <​Traspotd [transported]​> <​to​> Botany Bay or and very indiff[ere]nt which.—
we have shown we were not in . <​he was is​> not a fugitivs. [p. 66] fr[o]m. Justice. he was at office[r]s drill— on 6— & <​in the​> Lodge <​from​> 6— to 9. <​oclck​>— 7t day 300 miles off— <​in uniform​> reviewi[n]g <​of​> the insted of runig [running] away from —— in uniform— Judg— — partook of the hospitality of Gen Smith. <​insted of flee[i]ng f[r]om J​> flee[i]ng from Justice. <​he​> Dini[n]g on cou[r]ts.— high[e]st cou[r]ts in ou[r] land.
have I a right to try him, have a right to try
power of .— is pretty well settled— <​there is​> no proof in <​the​> writ that he is a fugitiv f[r]om Justice— [p. 67] 3 Peters 193.— Tobias Watkins. convictd of embezzling money.— cannot go behind the Judgme[n]t. where Judmett [Judgment] is not issued, can go behind the writ, <​same​> nature of writ of Error— body of Prisoner & cause of commitment— 3 cranchen [Cranch] 447—
3d Bacons abridgmnt to qustn [question] proposed to 12 Jud[g]es—— where a person is so imprisond that the cou[r]t cannt discha[r]ge yet unjustly.— manife[s]tly to unwarrentable means,—— <​clear on ——​>
most clear & undoubted testim[on]y this man are not [p. 68] manife[s]tly agai[n]st law & Justice.
<​is the​> — <​a​> Civil— or criminal? not crimi[n]al— civil proceeding whithe[r] the law of this state on — Statute of this <​state​> that prison[er] may may make allegation <​&​> cou[r]t shall hear— in H. Corpus <​the​> Laws of the State shall be regarded by the cou[r]ts where they are held. statute of this state. prisoner shall be allowed to controvert on trial this as well as promissory note
not only controvert the return but that he is not to be surreded [surrendered] or discharged [p. 69]
<​ Read​> 9 Wendell 212. when a person is brought on Habeus C. court is not to enquire <​into th[e] guilt or innocen[c]e—​> authority is again[s]t it, 9 wendell previous to 12 Wendell. & <​is​> all set aside. has he fled? & not, is he guilty?— if Smith was in this state, says , constructively in that state, <​I​> dont wish to go into a spiritual disquisition.— <​the words​> shall flee occurr 3 times <​in the constitution​>— <​th[e]​> removal <​is​> not spiritually, but bodily.— look at it.— states have passed Laws to take effect out of the State <​where they were passd​> but they are void. <​suppose​> [p. 70] passed a Law to prevent any person from speaking disrespe[c]tfully of her inability to pay her debts <​we​> Might have ½ the <​before our cou[r]ts​> for Saying we could not pay our debts.— Alabama ag[ain]st — in case of Williams— Wms had been Spiritually there had not fl[e]d— f[r]om the Justice of that state. <​the​> Right to demand & power to give up coextensive. <​ was not an ab[o]litionist as the Gent wo[u]ld intimate​>— ⅔ ’s Message to abuse abolitionist
that an attempt should be made to deliver up a man who has never ben out of the state strikes at all the liberty— <​of our instituti[o]ns​> his fate to day may bee yours tomorrow [p. 71] I do not think the def[e]ndant <​ought​> under any circumstances to be deliverd up to — it is a matter of history that he & his people [blank] <​have been murderd & drivn from th[e] state— he—​> had better been sent to the gallows— he is an innocent & unoff[e]nding man the differnc [difference] is this people beleiv in prophecy & othrs do not old prop[h]ets prophicid in Poet[r]y & the modern in Prose—
<​went into the Judges room. introduced to one senator— & some Ladies— Mrs [Susanna] Ford​> ½ Ladies retir[e]d—
read f[ro]m 12 Wendell case of Williams on th[e] pa[r]t of th[e] to act. no court [p. 72] coult [could] compel him to act
differe[n]ce of opinion of the north & south.
Court adjorn till 9 tomor[ro]w morning for making up opini[o]n [p. 73]

Footnotes

  1. 1

    TEXT: Possibly “No” or “In”.  

  2. 2

    One of two affidavits prepared by Butterfield the previous night. (Wilson Law and Others, Affidavit, 4 Jan. 1843.)  

  3. 3

    Jacob B. Backenstos and Stephen A. Douglas, Affidavit, 4 Jan. 1843.  

  4. 4

    Ex Parte Bollman and Ex Parte Swartwout, 2 Peters Condensed 37 (1807).  

    Peters Condensed / Peters, Richard, ed. Condensed Reports of Cases in the Supreme Court of the United States, Containing the Whole Series of the Decisions of the Court from Its Organization to the Commencement of Peter’s Reports at January Term 1827. With Copious Notes of Parallel Cases in the Supreme and Circuit Courts of the United States. 6 vols. Philadelphia: John Grigg, 1830–1831; Desilver, Jr., and Thomas, 1833–1834.

  5. 5

    Actually, page 318. (An Act concerning Fugitives from Justice [6 Jan. 1827], Public and General Statute Laws of the State of Illinois [1834–1837], pp. 318–320.)  

    The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

  6. 6

    Conkling, Treatise on the Organization, Jurisdiction and Practice of the Courts, 51.  

    Conkling, Alfred. Treatise on the Organization, Jurisdiction and Practice of the Courts of the United States. Albany: William and A. Gould, 1831.

  7. 7

    Conkling, Treatise on the Organization, Jurisdiction and Practice of the Courts, 85.  

    Conkling, Alfred. Treatise on the Organization, Jurisdiction and Practice of the Courts of the United States. Albany: William and A. Gould, 1831.

  8. 8

    TEXT: Possibly “forces”.  

  9. 9

    Ex Parte Bollman and Ex Parte Swartwout, 2 Peters Condensed 37 (1807). text: “55” is possibly an insertion.  

    Peters Condensed / Peters, Richard, ed. Condensed Reports of Cases in the Supreme Court of the United States, Containing the Whole Series of the Decisions of the Court from Its Organization to the Commencement of Peter’s Reports at January Term 1827. With Copious Notes of Parallel Cases in the Supreme and Circuit Courts of the United States. 6 vols. Philadelphia: John Grigg, 1830–1831; Desilver, Jr., and Thomas, 1833–1834.

  10. 10

    Ex Parte Cabrera, 1 Washington’s C.C. Reports 232 (Washington, Circuit Justice, 1805).  

    Washington’s C.C. Reports / Washington, Bushrod. Reports of Cases Determined in the Circuit Court of the United States, for the Third Circuit, Comprising the Districts of Pennsylvania and New-Jersey. Commencing at April Term, 1803. 4 vols. Philadelphia: Philip H. Nicklin, 1826–1829.

  11. 11

    TEXT: Possibly “<​&c​>”.  

  12. 12

    TEXT: Possibly “attempt,”.  

  13. 13

    Thomas Gordon, A Digest of the Laws of the United States (Philadelphia: By the author, 1827).  

    Gordon, Thomas. A Digest of the Laws of the United States. Philadelphia: By the author, 1827.

  14. 14

    Commonly known as the Habeas Corpus Act, the “Act for the Better Securing the Liberty of the Subject, and for Prevention of Imprisonments beyond the Seas” was passed by the Parliament of England in 1679 during the reign of Charles II.  

  15. 15

    In re Clark, 9 Wendell 212 (N.Y. Sup. Ct. 1832).  

    Wendell / Wendell, John L. Reports of Cases Argued and Determined in the Supreme Court of Judicature and in the Court for the Correction of Errors of the State of New-York. 26 vols. Albany: William and A. Gould, 1829–1842.

  16. 16

    Kent, Commentaries on American Law, 2:32.  

    Kent, James. Commentaries on American Law. 4th ed. Vol. 2. New York: By the author, 1840.

  17. 17

    U.S. Constitution, art. 3, sec. 2.  

  18. 18

    TEXT: Possibly “power”.  

  19. 19

    Lilburn W. Boggs, Affidavit, 20 July 1842.  

  20. 20

    TEXT: Unidentified symbol, possibly a typographic index or manicule.  

  21. 21

    Thomas Reynolds, Requisition, 22 July 1842.  

  22. 22

    Arrest Warrant, 31 Dec. 1842.  

  23. 23

    TEXT: Possibly “an”.  

  24. 24

    Jack v. Martin, 12 Wendell 311 (N.Y. Sup. Ct. 1834).  

    Wendell / Wendell, John L. Reports of Cases Argued and Determined in the Supreme Court of Judicature and in the Court for the Correction of Errors of the State of New-York. 26 vols. Albany: William and A. Gould, 1829–1842.

  25. 25

    TEXT: Possibly “master,”.  

  26. 26

    Prigg v. Commonwealth of Pennsylvania, 16 Peters 611 (1842).  

    Peters / Peters, Richard. Reports of Cases Argued and Adjudged in the Supreme Court of the United States. 17 vols. Various publishers, 1828–1843.

  27. 27

    Houston v. Moore, 5 Wheaton 23 (1820).  

    Wheaton / Wheaton, Henry. Reports of Cases Argued and Adjudged in the Supreme Court of the United States. 12 vols. Various publishers, 1816–1827.

  28. 28

    Prigg v. Commonwealth of Pennsylvania, 16 Peters 617 (1842).  

    Peters / Peters, Richard. Reports of Cases Argued and Adjudged in the Supreme Court of the United States. 17 vols. Various publishers, 1828–1843.

  29. 29

    U.S. Constitution, art. 3, sec. 2.  

  30. 30

    TEXT: Possibly “there”.  

  31. 31

    Lilburn W. Boggs, Affidavit, 20 July 1842.  

  32. 32

    TEXT: Possibly “trust”.  

  33. 33

    Thomas Carlin, Writ, 2 Aug. 1842, Ex Parte JS for Accessory to Boggs Assault [C.C.D. Ill. 1843], copy, Nauvoo, IL, Records, CHL.  

  34. 34

    TEXT: Possibly “spread”.  

  35. 35

    Illinois attorney general Josiah Lamborn.  

  36. 36

    A British penal colony established in 1788 in Australia.  

  37. 37

    6 May 1842, the day Boggs was shot.  

  38. 38

    Nauvoo is approximately three hundred miles from Independence, Missouri. This journal entry records Butterfield’s assertion that JS attended a meeting of the Masonic lodge in Nauvoo from six to nine o’clock on 6 May 1842; however, JS’s name is not among those listed as present in the lodge minutes. According to his journal, JS was involved in activities with the Nauvoo Legion that day. (Nauvoo Masonic Lodge Minute Book, 6 May 1842; JS, Journal, 6 and 7 May 1842.)  

    Nauvoo Masonic Lodge Minute Book. / “Record of Na[u]voo Lodge Under Dispensation,” 1842–1846. CHL. MS 3436

  39. 39

    Ex Parte Watkins, 3 Peters 193 (1830).  

    Peters / Peters, Richard. Reports of Cases Argued and Adjudged in the Supreme Court of the United States. 17 vols. Various publishers, 1828–1843.

  40. 40

    TEXT: Possibly “<​some​>”.  

  41. 41

    The case actually begins on page 448. (Ex Parte Burfurd, 3 Cranch 448 [1806].)  

    Cranch / Cranch, William. Reports of Cases Argued and Adjudged in the Supreme Court of the United States, in the Years 1805 and 1806. 9 vols. Various publishers, 1804–1817.

  42. 42

    A New Abridgement of the Law by Matthew Bacon, of the Middle Temple, Esq., vol. 3, 1st American ed. (Philadelphia: Farrand and Nicholas, 1813).  

  43. 43

    TEXT: Possibly “the”.  

  44. 44

    An Act Regulating the Proceedings on Writs of Habeas Corpus [22 Jan. 1827], Revised Code of Laws, of Illinois [1826–1827], pp. 236–244.  

    The Revised Code of Laws, of Illinois, Enacted at the Fifth General Assembly, at Their Session Held at Vandalia, Commencing on the Fourth Day of December, 1826, and Ending the Nineteenth of February, 1827. Vandalia, IL: Robert Blackwell, 1827.

  45. 45

    Josiah Lamborn.  

  46. 46

    In re Clark, 9 Wendell 212 (N.Y. Sup. Ct. 1832).  

    Wendell / Wendell, John L. Reports of Cases Argued and Determined in the Supreme Court of Judicature and in the Court for the Correction of Errors of the State of New-York. 26 vols. Albany: William and A. Gould, 1829–1842.

  47. 47

    U.S. Constitution, art. 4, sec. 2. The word flee actually occurs only once in the Constitution. The word fled also occurs once.  

  48. 48

    TEXT: Possibly “their” or “her”.  

  49. 49

    In October 1842 Butterfield explained in detail the legal basis of this defense of JS in a letter written to Sidney Rigdon. The State of Alabama v. Williams case was the foundation of his argument. Robert G. Williams, an abolitionist residing in New York, was indicted by an Alabama court in 1835 on charges of “intending to produce conspiracy, insurrection and rebellion among the slave population” for distributing his antislavery paper The Emancipator in the latter state. In his request for Williams’s extradition, Alabama governor John Gayle stated that Williams was not in the state when the crime was committed and had not “fled” as the wording in the Constitution required, “according to the strict literal import of that term.” Gayle argued that the term “fled” should be interpreted as “evade” and that Williams should be extradited even though he had not physically fled from the justice of Alabama. New York governor William Marcy, though personally highly critical of abolitionism, rejected this interpretation and refused to extradite Williams, maintaining his stance that a fugitive must physically flee the jurisdiction of the state attempting extradition. The Alabama requisition papers, Gayle’s letter, and Marcy’s lengthy response were printed in the Albany Argus. (Justin Butterfield, Chicago, IL, to Sidney Rigdon, [Nauvoo, IL], 20 Oct. 1842, copy, Sidney Rigdon, Collection, CHL; “Requisition of the Governor of Alabama,” Albany Argus, 7 Jan. 1836, [2].)  

    Rigdon, Sidney. Collection, 1831–1858. CHL. MS 713.

    Albany Argus. Albany, NY. 1825–1856.

  50. 50

    The message cited is probably a reference to New York governor Marcy’s message to the New York state legislature of 5 January 1836. Marcy made it clear that he had protected New York abolitionist Williams from extradition to Alabama because his alleged seditious acts “arose from acts done within this State.” (Documents of the Assembly of the State of New-York, no. 2, pp. 29–39.)  

    Documents of the Assembly of the State of New-York, Fifty-Ninth Session, 1836. Vol. 1, From No. 1 to No. 42 Inclusive. Albany: E. Croswell, 1836.