Account of Hearing, 8 May 1844, Copy [F. M. Higbee v. JS–A on Habeas Corpus]

  • Source Note
  • Historical Introduction

Document Transcript

Municipal Court
Wednesday May 8th. 1844
was elected President of the Court—
, Clerk, said that this was an ad[j]ourned Session of May Term, and then read the Writ of for the body of Joseph Smith, who was then in the Custody of at the instance of , and also the other papers in the matter—
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 are assigned— the insufficiency <​of the​> Writ is sufficient to discharge the , it is the privilege and option of this Court if the writ is invalid— it is the privilege of the 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. altho’ it is competent for the Court to discharge on account of 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 might know what answer to make— the might have had to lie 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 a sum of $500. 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 $5,000 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 of the writ— but we do not want it on account of the insuffiency, but we want 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 held to any charge to — we have given him notice to attend here, if he have any cause to keep him here, I propose to bring in the testimony of the . he has averred certain facts— he is ready to make Oath of it if your honors require it— there is no ordinance against the taking his Oath— it is within the province [p. [1]] 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 rise from any thing in this matter—
said it has been duly stated that this Court has nothing before it on which they 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, or arson, or what? the prisoner was arrested for some cause, but for 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 ignis fatuus, a will-oth-wisp— to arrest somebody for doing nothing, to have the privilege of trying a law suit about nothing, the court never says ever preferred 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 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 shew 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 power 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 to trial— they have no merit in their cause, I want to shew up this conspiracy, that these men are working their basest corruption, they have lifted up their hands against innocence— you have power to hear the on his oath. I will shew you a precept, look at the federal court of this district, the case was made out by affidavit when the Court decided it just as well as giving oral testimony— the 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 that he is innocent, the Court must set him free, a man must give his testimony and swear it 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 off, then they can not do any thing with it— suppose that I am an eye witness to the [p. 2] 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, altho’ I know the man to be guilty of adultery or crime, but if I swear to it in a court he can not hurt me at all— 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 that the Oath may go to the world. I must make statements of facts in order to defend myself— I must tell the Story in its true light, and then I am ready to swear to it, then I can be for ever 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 shew any crime had been committed, and we can shew 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, and then solemnly swore to tell the truth &c [1/2 page blank] [p. 3]
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Joseph Smith sworn said I must commence when was foaming against me, @ 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 for ever— 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 — I was called on to visit <​-[​>— I went, and found him on the floor, <​-[​>he stunk very bad— I took out of doors and asked him what was the matter with , when he told me that he was nearly dead with the Pox— he said he had caught it on the 4th. July, or it might be a day or two after— it was before left, a French lady came up from — a very pretty lady. got in company with this woman and so got this disease. I afterwards talked with him when he acknowledged that had got the Pox— he got better. but shortly after was down again, said he could not keep him away from the women, until he could get him well, and if he would not keep away from them, he would die of it—<​]-​> <​Here follows testimony which is too indilicate for the public eye or ear— and we would here remark that so revolting corrupt & disgusting have <​has​> been the conduct of most of this clique that we feel to dread having anything to do with their <​the​> publication of their trials; we will not however offend the public eye or ear with a repitition of the foulness of their crimes any more​> said pointed out the spot where had seduced a girl, and that he had seduced another— I did not believe it, I felt hurt, about it and labored with about it, he swore with uplifted hands, that he had lied about the matter, I went and told the girls mothers, when and made afterwards <​affidavits​> and both perjured themselves, they swore false so as to blind the family and me, and if the facts had been known, there would have been no hard feelings, I brought before , and others,<​.​> was present, when they both acknowledged that they had done these things and asked us to forgive them, I got vexed<​,​> after my feelings had been hurt,<​.​> has been guilty of adulterous communication, perjury &c and which I am able to prove by men who heard them confess it— I also preferred charges against , the same charges that I am now telling— and he got up, and told them it was the truth, when he pleaded for his life, and begged to be forgiven— this was his own statement before 60 or 70 men— he said that the charges were true against him and — I have been endeavouring to throw out shafts to defend myself because they were corrupt, and I knew they were determined to ruin me<​— .​> he has told the public that he was determined to prosecute me, because I slandered him, altho’ I tell nothing [p. 4] but the truth— since the settlement of our difficulties— I have not mentioned his name disrespectfully— he wants to bind up my hands in the circuit court and make me pay heavy damages for telling the truth,
<​In relation to the conspiracy​> I have not heard say he would take away my life, but , and and said they would shoot me— and the only offence against me is telling the truth—
I did say that did steal a raw hide, I have seen him steal a number of times these are the truths <​things​> that they now want to ruin me, for<​; for​> telling the truth— when riding in the Stage I have seen him put his hand in a woman’s bosom, and he also lifted up her clothes
I know that they are wicked, malicious, adulterous, bad characters— I say it under oath— I can tell all the particulars from first to last— [2/3 page blank] [p. 5]
,, sworn, with regard to , at the time that is spoken of, I stopped opposite Mr. ’s Store, we had been conversing with — when I came into the room rather recoiled and wished to withdraw— he went out and sat upon a pile of wood— He said it is all true, I am sorry for it, I wish it had never happened, I understood who related some of the circumstances he cried and begged of us to forgive him, and said if he could be permitted to stay in the city as a private individual he should be happy— that was about what he said it is true, I am sorry for it, I wish it had never been so, as we came up , , and Mr. Smith, had been talking about it I have not mentioned it before, I knew of the whole affair, it was on the 4th. July or a few days after— it was shortly after I came from — I was in the City Council when said all was settled— +exd. [cross-examined] I have heard say all these things were facts— he acknowledged that had the pox and that he had doctored him, he acknowledged that, and a great deal more—
*I will make one statement in our conversation with — I told that one charge was seducing young women, and leading young men into difficulty— he admitted it— if he had let young men and women alone it would have been better for him.
sworn— in relation to the matters before the Court I am unacquainited with, I was sick at the time but I have heard it talked of back and fro,
+exd. I recollect Joseph Smith came to me with a complaint against and , and made affidavit that it was true— I have the affidavit in my house, I went to see on last Saturday. I found him at Mr. Morrison’s— he was waiting for a Steam Boat— I endeavored to prevail on him to relinquish his undertaking— he said I have no character in , for I have none to lose, I tried to convince him that he had a character and might be looked upon with respect, but he flatly contradicted me, and said he had none, and that was one of the reasons why he persecuted Joseph Smith — as he had no character, he did not care what he did— he had nothing to lose by it— that is the substance of our conversation [p. 6]
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sworn— I recollect a settlement of difficulties between and my brother Joseph, about which some of the Court may recollect— I recollect asking forgiveness of the Lodge when there was about 60 present— acknowledged that it was the truth, that he was sorry, and had been a thousand times— he acknowledged his connection with the woman on the hill— th I did think he was with at the time, the Statement of was, that he was guilty, he was sorry, and asked forgiveness, he said he had seduced 6 or 7, he acknowledged it, and said if he was forgiven, he would not be guilty any more. said he knew it was true, he was sorry and had been a hundred times— the very things that we had challenged him with, he acknowledged. I told that it had better be settled he said Joseph had accused him— if his character was gone all was gone— he said he would settle it and they went into the room— he did not deny any charge, he said he was sorry, that he wanted it buried, and it was agreed to do so— did not say any thing about his sickness, but made those observations to him that he had doctored him in the time of his sickness—
+exd. I asked if he did not tell that he had seduced a girl— he replied I told that I did seduce her but I tell you I never did it <​I told him so for my own notion of things—​>— I do not recollect of him saying <​[​>that had got a bad disorder with the French Girl<​]-​>— he said he should not have been seduced, if it had not been by when charged with them said they were true— that they were alledged a hundred times— he said “I will alter, I will save my character—” I have never heard from Brother Joseph any thing about his character, Joseph did not accuse him of any thing before the notice— he said had better take care was a little dissatisfied, but that difference was settled— I was present— he said he would not receive any thing again from abroad— he would not take any steps by hearsay— he would come to him and tell him, there were several present when this took place— [7 lines blank] [p. 7]
sworn— he recollected the conversation but not very distinctly— but he did recollect that acknowledged to Joseph Smith that he was guilty of the charges preferred against him—
Court adjourned for 1½ hour— [3/4 page blank] [p. 8]
Municipal Court Adjd. meetg.
sworn— with regard to this case I know nothing— but through a circumstance occurring at came to my house to preach— he preached and was upholding the authorities of the Church very much— he came over here and apostatized the same day— I then came over and went to see him— I asked him <​why​> how he <​had​> changed his mind so quick?— he said he had seen affidavits of the guilt of Mr. Smith— he told me was going about to the different conferences. I told him I thought he had better send some one else, his conduct was not the best and I knew of circumstances that were not right— Once I was a mate on a Steam Boat, and was Clerk— we had not much Cabin— we had some females on board— I and another had given up our room to some ladies for the night— it was my Watch, and I went into the Cabin for my Buffalo Robe, about one oclock in the night— when I saw him leaning over the Berth where one of the ladies slept— this was in the night— and he had no business there— no Gentleman had any right there— I gave up my Berth to the ladies— I felt indignant at such conduct— his conduct towards the Lady passengers was unbecoming— and particularly in one who professes so much virtue as he now does—
sworn— I have seen go into rooms with females, but what their intentions were I did not know, I might have seen him two or three times— I think he has done that which is not right, I should judge from conversations with him, that was the case, I presume he has, a good many times— I might recollect 20 tines— he has frequently told me things of that kind— it is a private case to be sure— he has told me, that he had commenced an action against Joseph Smith for slander— I met today, I asked him about the fuss, when he said he had got Mr. Smith up for slander— he said he should not come here— but did not say why, I recollect the time that he was sick, when attended him, I went to see him nearly every day, I understood to say that he was prosecuting Mr. Smith for slander— that he was up before the Municipal Court— he told me he supposed I was wanted to prove that he was a thief, whoremaster, and every thing else— [p. 9]
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<​sworn​> I have several times had conversations with — I recollect that near two years ago there was a fuss about s Wife’s Sister before the High Council— I recollect a French Woman coming up from — and that had medical assistance <​-[​>for the clap—<​]-​> there had been some circumstances when he smelt bad—<​]-​> attended him— Joseph Smith administered unto him but it was irksome— assented that it was so, he did not contradict it— he promised to reform— he would do better— he would do so no more— [about 6 lines blank]
, sworn, I think it is near two years I had some conversation with he expressed himself indignant at some things— he expressed himself that he was sorry, he would live a new life. he never would say a word against President Smith— he had an inclination to write that what he published was false— I exhorted him to go and recal what he had said— I afterwards saw him in , when he promised by every thing sacred that he would come home, reform, and then go and publish this doctrine, for it was true— he said he had taken a course that was wrong towards President Smith, and was sorry for it— he said he would study at for his character was ruined here— when we were in we went over to and exhorted him to alter his conduct— The last time I conversed with him— he said if I had taken your Counsel I should now have been a man looked on with respect— he said he was not connected with the people that opposed President Smith and never would— he much regretted the course he had taken— [p. 10]
Testimony before the Municipal Cout May 8, 1844 Joseph Smith Sen. on
 
Fil[e]d May 8th 1844 [p. [11]]

Footnotes

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    Insertion in handwriting of John Taylor.  

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    Insertion in handwriting of John Taylor.  

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    Insertion in handwriting of John Taylor.  

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    Square brackets inserted in unidentified handwriting.  

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    Insertion in handwriting of John Taylor.  

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    Insertion in handwriting of John Taylor.  

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    Square brackets inserted in unidentified handwriting.  

  8. 1

    TEXT: The page has either been torn in half and then reattached, first with a pin and later cellophane tape, or two separate leaves were attached in that manner.  

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    Docket and notation in handwriting of Willard Richards.