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

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  • Historical Introduction

Document Transcript

Municipal Court
Wednesday May 8th. 1844.
Alderman was elected President of the court
said this was an adjourned Session of May Term— who <​and​> read the Writ of Habeas Corpus for the body of Joseph Smith who was in Custody of at the instance of and also the other papers in the matter—
the pet[ition] & pap[ers] have been read in your hear[in]g.— it is a petn. for H. C.— <​1st​> the insufficiencey of the writ & other causes are ass[igne]d.— the insuff[icien]t. writ is sufft. to disch[arge] the pris[oner] it is the priv[ilege] & option of this court that if the writ is invalid— it is the priv. of the pris. to have all the matters investigated so that the & other persons who are in a consp[irac]y. to take his life— altho it is compet[en]t. for the C[our]t. to dischg. on acc[oun]t. of insuffy. of the writ yet we want an ex[aminatio]n. of the matters so that all may be understood— all warr[an]ts. sho[ul]d. disclose all crimes known to the Court so that the pris. may know what ans[we]r. to make— the pris. mi[gh]t. have had to lie in jail 6 mo. bec. he knows nothing what he is charged with in the writ, that he had <​to​> pay to a sum of 5,000 or anything there is no act[io]n. spec[ifie]d. is it meant for tresspass mall treating [maltreating] beating slander or to any crime so that the damage of 5000 might be kn[ow]n. for what— the writ is void for want of sub[stance] & form— all who are fam[iliar] with law commonsence or justice must know that it is indefinite no charge defined— if it is not rel[ease]d. here we shall be reld. in the circuit court on acct. of the insuffy. of the writ— we are now willing to investigate the merits of the case— we know nothing but from inf[ormatio]n. for other sources & we want this court to determine whey. [whether] we held to any charge to — we have given him notice to att[en]d. here if he have any cause to keep him here— I prop[ose] to bring in the test[imony] of the pris. he is the pris. he has averred certain facts— he is ready to make oath if your honors require it there is no ordinance ag[ain]st the pris. giv[in]g. his oath— it is the province of the court to do so it is the privilege of the court in any case to hear the in any cause— law is founded on justice— there can no iniquity rise from any thing in this matter [p. 1]
it has been. truly stated that this court has nothing before it on which they can act there is a prisr. brot. into court who was in custody within the prov. of your honors— Those papers disclose no crime no guilt no merits to try—— they present no meritorious cause of actn. they do not prest. his guilt in any form whatever— what are the merits— shall we try him for horsestealg. or what? the prisr. was arr[este]d. for some cause— you shall hear the merits if you can find them out— then the court has power to try—— is it burglary horse stealing or 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 this court has no existence— it is ignis fatuus— to arrest somebody for doing nothing— to have the priv of trying a law suit about nothing— the court never says ever pref[erre]d. any thing— if there can any merits be hatched up we will try it
Pro [Prisoner] I am sat[isfied] that this thing can be brot. to trial— it appea[r]s I am a pris. & brot. here by the auth[orit]y. of the C[ircuit] C[ourt]. I petd. for hearg. I am a pris. & aver that it is a malicious pros[ecution] a wicked consp[iracy] got up by these men for the purpose of harassing me & decoying me into their hands— I want to show that this has joined a set of men who have ent[ere]d. in a consp. to take away my life you have power to punish— in prison— or fine or any thing you please you have a right to punish the off[ender] if I am a criminal you have power to punish me & send me to C. C. but if I am as inn[ocen]t. as the angels of heaven— you have power to send the pros[ecutio]n. to trial.— they have no merit in their cause I want to shew up this conspy. that these men are work[in]g their basest corruptn. that they have lifted up their hands ag. innocence— you have power to hear the petitr. on his oath— look at the federal court of this Dist. the aff[idavi]t. was made out— by afft. the Court decided it just as well as givg. oral test— the H C is granted upon the testy. of the petn.— it is the law in Blackstone that where no other matter is existence & swears that he is innocent the court must set him free— a man must give his testy. & swear it— and then goes as free as the [p. 2] eagle— If I have the privilege of test[ifying] under oath to the facts that they make slander off— & they cannot do any thing with it suppose I am an eye witness to a crime & know verily for myself that a man is guilty of a crime— the man may sue me for damages— altho I know the man to be guilty of a crime— he could not hurt me at all— If I have the priv of test. under oath they can never do any thing with me— if you disch[arge] me on the writ— they can pros. me again but if you give me a fair hearg. they cannot prosecute me again I want so 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— & then I am ready to swear to. & then I can be for ever set free— may I not have the priv of being protected by law— the peace of myself— my family— my happiness & of this depend upon it—
the court allowed him to proceed
this is a malicious prosn. & we have averred that this is the malicious & have a right to prove it— we can shew that we are not guilty of any plea in the case— there is no charge or case agn. us— the whole matter is corrupt & malicious—
J. Smith. , solemnly swore to tell the truth the whole truth &c
J. S. shall I enter into all the diff[iculties] bet[wee]n. me &
court in order to do that you must enter
[illegible] J. S. said was foamg. agt me— & the municipal court in my room sd. that he was grievd. agt. me. I was grieved agt. him—— I was will[in]g. on my part to settle the diff— If I wod. go before the City Council he wod drop every thing gst. me for ever— I never ment[ione]d. the name of disrespectfully from that time to this— but have been entirely silent but it is nec[essar]y. to shew what he wants to get up a slander— since that time if they have they lied.— he cannot have any cause whatever— I want to testify this co[ur]t. a long time bef[ore] left this I was called to visit I saw him on the floor he stunk very bad— I took out— of Doors & asked [p. 3] what was the matter with him when he told me that he was nearly dead with the Pox— he said on the 4th. July— it was bef. left— a French lady came up from — a very pretty lady— got in conn with this wom[an] & so got this dis[ease] I after talked with him & he ack[nowledge]d. that he got the Pox— he got better— but shortly after was down again— could not keep him away f[r]om women until he cod. get him well & he wod. die of it— said pointed out a spot where he had seduced a girl— & that he had seduced another— I do not believe it— I felt hurt ab[ou]t. it & labored with abt. it— but he swore to me with uplifted hands that he had lied abt. the matter I told the girls— & both perjured themselves— & swore false so as to blind the family & me— & if the facts had been known there wod. be none I brot. bef was prest when they both ackd that they had done these things & asked us to forgive them— I got vexed after my feelings had been hurt— has been guilty of adulterous— perjury &c & which I am able to prove by men who heard them confess it
I also prefd. charges agt. the same charges that I am now telling— and he got up and told them it was the truth— when he plead for his life this was his own statemt. bef 60 or 70 that the charges were true— agt. him & I have been end[eavorin]g. to throw out shafts to defend myself because they were corrupt— he was det[ermine]d. to ruin me— & tell to the public that he was detd. to prosecute me because I slandered him— altho I tell nothing but the truth since the sett[lemen]t. I have not mentd his name since— he wants to bind up my hands in the C. C. & make me pay heavy damages for telling the truth— in rel[atio]n. to consp. I never heard say he wod. take away my life— & & said they wod. shoot me— & the only offence agt. me— I did say that stole a raw hide I have seen him steal a number of times these are the truths that they want to ruin me— for telling the truth [p. 4] I have seen steal a many times— I have seen him feel a womans bosom & lift up her clothes— I knew that they are wicked malicious adulterous bad character I say it under oath— I can tell all the par[ticu]lars from first to last
with regd. to the time that is spoken of I stopt opp[osite] Mr. Laws store we had been convg. with rather recoiled & wished to withdraw & sat up on a pile of wood— He said it is all true I am sorry for it I wish it had never happd.— I understood by who related some of the circumstances he cried & begged of us to forgive him— & said if he cod. be permitted to stay in the as a P[rivate] individuall he shd. be happy—— that was about the whole he sd. <​it is true​> I am sorry I wish it had never been so—— I am sorry— as we came up & Mr. S. had been talkg. abt. it— I have not mentd. it bef— I was know of the whole affair— it was on the 4th. July— <​& some days after​> a few days after I came from I was in the C[ity] Coun[cil] when sd. it was settled
X I have <​h[ear]d.​> say all the things were facts— he ackd. that had the pox & that he had Dr. him, he ackd. that & a great deal more.
in to the matters bef the Ct. I am unac[quainte]d. with I was sick at the time I have heard it talked of back & fro—
X recollected that J. S came to him with a compt. agt. & — & made afft. that it was true— I have the affts. in my house— I went to see on a Friday or Saty. last week I found him at Mr. Morrisons he was waitg. for a Steam Boat I end[eavore]d. to prevail on him to relinquish s
X he said I have no char[acter] in for I have none to lose— I tried &c but he flatly contrad[icted] me & said he had none— & this is one of the reasons why he pers[ecute]d. Mr. S.— as he had no char. he did not care what he did— he had nothing to lose that is the substance [p. 5]
[verso of page 5 blank]
swore as to the matters being fully expd.— I recollect of a settt. abt. a settt. bet[wee]n. & J. abt. which some of the Ct. may rec[ollect]— asked forgiveness of the Lodge abt. 60. in the small room— in ackd that it was the tru that he was sorry & had been a 1000 times— he ackd. his connn. with the women on the hill— I have never sd. a word abt. — I did think he was with at the time the state[ment]— of — was that he was G[uilty] He was sorry & asked forgiv he had seduced 6 or 7— he ackd. it & said he wod. not be guilty agn. sd. knew it was true he was sorry & had been a 100 time, the very thing that we had chall[enge]d. him he ackd them. I told that it had bette[r] be settd. he sd. J. had acc[use]d. him— if his char. was gone— all was gone he sd. he wod. settle it— they went in the room— he did not deny any charge— he was sorry tha[t] he wanted them buried— & it was ag[ree]d. to do so did not say any thing to me abt. his sick[ness]— but made those obvons [observations] him that he had Dr. him in the time of his sick
X I ask if he did not tell that he never had sed[uce]d. them I told that I did sed. but I tell you I never did it—— be I do not recollect of him sayg. that he got a disorder with the F[rench] Girl—— he said he shd. not have been sed. if it had not been by
I did tell that I did it I told him so for my own notion of— things— all par[ticu]lars I did not inves[tigate?] vey [every ?] parlar— I alledg those have to to be ackd. them— sd. they were true— that they were alledg an 100 times— I will alter— I will save my char.— I have never heard from B. Jos— any thing abt. his char.— J. did not accuse him of any thing bef the Pol[ice]— he sd. had better take care— was a little dissatisfied but that diff[erence] was settd. again I was present— he sd. he wod. not rece[ive] any thing again from abroad— he wod. not take any steps by hear say— he woud come to him & tell him— there were sev[era]l. pres[en]t. a many things took place I do not recollect— I wanted to bring all things forwards— [p. 6[a]]
I will make one statet. in our conv[ersatio]n. with — I told that one charge was lead sedg. young women & leadg. young men into difficulty he adm[itte]d. it if he had let young men & women alone it wod. be better for him—— this was either the day bef. or the day after
swore that he rec[ollecte]d. about the conversatn.— but not very distinctly X I recollect that he ackd. to J. S. that he was guilty of the charges prefd. agt. him
adjd. for 1½ hour [2/3 page blank] [p. [6b]]
Municipal Court adjd. meeting
sd. it was adjd. to have the testimony of but he is not yet found I expect him here soon.
sworn with reg[ar]d. to this case I kno noth[in]g. a circumstance occ[urred]d. at came to my house & preached a week last Saty.— he came over here & apost[atized] the same day— in upholding the auth of the Church— & apo next day— I came over & went to see him I asked him how he chang his mind so quick— he sd. he had seen affts. of the guilt of Mr. S. he told me that was going abt. to the dif[feren]t. confer[ences]— I told him I thot. he had better send some one else— his conduct was not of the best and I knew of circumstances that were not right
I was a mate on a Steam Boat & was Clerk we had not much Cabin— we had some females on boa[r]d— his cond[uc]t. with the lady pass[enge]rs. one night we had given up our room to some ladies— <​it was my watch &​> I went in at one <​o clock​> at night— & saw him leaning over a Berth where one of the ladies slept— this was in the night— he had no bus[iness] there— I gave up the Berth to the ladies— no Gent had any right there— I felt indignant at such conduct & thot. he was a poor <​not a proper on[e]​> one to send out— his conduct towards the ladies passrs. was unbec[omin]gto one profess[in]g so much virtue as he now does—
sworn. I do not I have seen him go into the room with females but what their intent[io]ns were I do not know— I might have seen him two or three times go into the rooms with females— I think he has done that which is not right— I should judge that wa from conversatn. that that was the case— I presume he has a good many times— I might recollect 20 times— but I can not recollect now— he has frequently told me things of that kind— it is a private case to be sure— he has frequently told me things of that sort having taken place— he has told me that he had commenced an action agst. J. S for slander— I met to day— I asked him abt. the fuss he sd. he had got Mr. S <​up​> for slander he was not coming down here but did not tell me why— he did give some reason but I do not now recollect— he had been to Mr.Ivings’ [’s?]— but was not coming here— I recollect the time that he was sick when att[ende]d. him— I went to see him nearly every day—— I understood to say that he was prosecutg. Mr. S. for slander— that he had him up bef the M[unicipal] Court— he told me he <​supposed I was​> wanted me to prove that he was a thief whoremaster & every thing else— [p. [7]]
I have had several times had talk with it is near two years— there was a fuss abt. s wifes Sister bef the H[igh] Council— there was a Fren[ch] W[oman] from that he had medical ass[istance] for the clap— there had been some circ when he smelt bad at[tended] him J. S. adm[inistere]d. to him but it was irksome— asstd. [assented] that it was so— he did not contradict it it was expressive to me that he assented to it— signs speak a deal to me— he prom[ise]d. to reform— he wod. do better— he wod. do so no more
I think it is 2 years it was the time of the aff[air] I had some convr. [conversation] with nr. I had a convn. with him he exp[resse]d. himself indignt. at some things he expd. his feelings that he was sorry— that he wod. live a new life— that he never wod. lift a word agst P[residen]t. Smith— he had an incl[inatio]n. to write— what he published was false— I exh[orte]d. him to go & recall what he sd.— I saw him in he promd. me by every thing sacred that he wod. come home, reform— & go & pub[lish] this doctr. [doctrine] that it was true— he sd. he had taken a course that was wrong towards to Pt. Smith. & was sorry for it—he sd. he wod. go. & study at for his charr. was ruined here— we went over from to & exhorted him the last time I con[verse]d. with him he sd. if I had taken your counsel I shod. now have been a man looked on with resp[ec]t.— he sd he was not conn[ecte]d. with the people that opp[ose]d. Pres. S. & never would— he regretd the course he had taken
I am dispd to offe a few refns. [references?] there are two prominent events set forth in the petns. why he shod. be disc[harge]d the evidence has been all to shew that the the writ itself is so defective that it has no power to hold— there is no chance of the writ ever holdig any pe[r]son— for the plainest of all reasons that a man can never be prep[are]d. for trial— no man knows what he had to plead to— in all crim[inal] pros the pros. he is bound to ment[io]n. in the writ what he is prosd. for— & can only be tried for that which is on the pap[er] itself— & when there is no charge on the petnr. [petitioner] to hold him— & if it was taken into the C. C. they wod. disch him with[ou]t. a trial— inasmuch as he is not char[ge]d. with any crime
In rel[atio]n. to the H C. in the pow[er] of the M C of this & of the Chartd pow that I wod. indulge myself pretty freely— there has been some excitemt [p. 8]
the powers claimed by the M C of there is a genl. reason for gran[ting] Charters in the 1s place— that lays the found[atio]n. for all privileges— the genl. Constl. prin. is that each one is entd. to the same benefits protection laws & institn. of all men— it is to the City & Bono Contratns. are granted by legislatives— bec[ause] the inh[abitants] in that district have the same benefit— the reason that they get Ch[artere]d. priv[ileges] is bec of their peculiari[ty]— the same amt. of law that gov[er]ns. the people over the agrarian pop— it is not to give more priv. but to secure to the cities the same priv— exp[erience] shows that towns cities & large places need more sec[urit]y than others liv[in]g. in o[the]r. sit[uatio]ns they are not privs. over & above what ors. possess— withn. these rights— with regd. to Charters they are very diversified on acct. of the peculiar[it]y of those places some require many powers on acct. of their peculiar sitn. & if they did not have it— the of the C of — the H. C. was predicated on that very princ. I know something— it was not givn priv. above or. places but to give them the same priv. with or. people— it was well known that the peo[ple] of had never exercised the priv— it was set up by the legis in bold relief in order to shew to the world— then the legislature did it as republicans— & honorable men wod. do it— there was no prejudice then— it was at the time when the cries & weepgs. of the widows reached the leg. & they wod. grant them the priv.— it was given at a time when there was no thirst for blood— the leg— sat cool & deliberate, they consider what rights they cod. give to that abused people was presidg judge I heard him say in regard to the H C— he was a member of that board & why he gave his constitutional— attempts wod. be made by if designing men came & arrest— we have designedly placed in the H. C to save lives they had the precise view before then it was by those honest & upright men the very reason was that you can execute the power to day— I do no that the very object that it is being executed this very day— that you may [p. 9] see how, that I am correct— conclusion— after ther exercise of the M. C. to secure to this people the very rights that ors exercise without it— & withn we give them the power to save themselves they will not have the same priv as the or Inh. of — it was this noble determinatn. that they put it into the — exceptn. were then taken by dishonest dishonorable & scoundrels bec they cod. not carry out their evil designs— every designing Scoundrel was stopt in their career— & it is they who want it to be repd— our ignorance— our wickedness— makes us go home with shame In acct. of the H C— they cannot carry out their wicked designs— the leg of . up gets a pell of Inspirants to repeal the Charter if you will only send me— they promise to repeal it, get elected— & then they are obld. to keep their promise— this Ct. has all the power that the leg. that the supreme court can give them— & if there is any leg. that can give force to the H. C.— you are now called to exercise the right that the leg. has sanctified it— the leading Senators cast out the attempt to repeal the Ch. & retn. the Ch— it was done by that good feeling— noble minded good feeling that gave us the H. C. I mit. shew the precise reason that they have given the reason why could not enjoy the same privileges as the people on the big prairie & so to save the from the hands of vile marauders who set at def[iance] the laws both of G[od] & man—
The very moment it appears to this Court that they are attempting to take away the peace of any man— you can stop it— we were called upon to plead to ansr. something but your Honors have at last found out that it was a case of Slander— you have sufft. to shew that this case is a case of slander— the has ref[use]d. to appear here— we have plead to general facts, means & things & having plead— you find that it is a malicious prosecutn. that there is not any thing but what shows that this prosn. has no found[atio]n in equity honor righteousness or any thing noble, but what is to carry out their hellish designs— if you act & are guided by humanity justice righteousn[ess] [p. 10] your way is marked out & you can run it blind— the criminl. Code is to punish marauders— if I take a mans body into custody— the most sacred way is life liberty & the purs[ui]t. of happ[iness] man has a right to pursue his happ. in all the ways of the world—— brot. up to the usages of our forefathers— where there is no narrator to carry us back, & back <​to​> the deepest ends of futurity we have lost it in the depths of Et[ernit]y. we find no beging.— there is no end of it— the old Biblerian School will not be forgotten— Old Sir Wm. Blackstone when they looked as far back as the shades of death— & when they found out that they were tyrants— Old has suffd. under tyrants, & been hurled into prison with impunity— they put a power into the hands of a Judiciary & make it an imperious duty that if any man within the limits of his jurisdiction— was to see by what power he was there— altho the King on his throne— or the lord in his dignity— when they were taken out of the dungeon— & sd. to the mandates of the King Judge set them free in the face of the King or the tyrant— who is the man that dares take away the life of any man— we will take him by the hand & set him free— there is not one word sd. about the duty of the M C— in the State of the laws are so rigid that if the judge does not ex[plain] why he was there the laws of have made it punishable with a fine of 1000 the judges dare not avoid it— the poor beggar can cry out Sir says he fetch me out of this prison— & if the judge does not do it— the laws are upon him with a fine of 1000— was the power given to to slumber in their hands— no— when the says that the M C. have power to exercise that right— they are to see that they are to exercise it it is sd. to be a nasty drone in if they were to catch a man in & require a man to bring him up— a Master in — is so much bigger than you people in — I wod. exercise my right if they all went to their fellow Scoundrels in hell— [p. 11]
I wod. take my right & exercise it— & if there gets such a corrupt legislature into the State— let them take it & be d—d— in they have a County Court & either of them arrest a man— the other wod. release them— the moment you arrest a man— the other gets up & says you are not out of my own jurisdictn.— if every place has not got the H. C. it is bec. of the hellish prejudice that exists agst. them— found out that a King can swear long enought to put a man in pris & a Judge was found big enough to take him out in the face of the K— dont let the man be ruined & every thing abt. him— I look upon the H. C as the very bulwarks of the liberties— there is not a black hearted villain but would run away with any innocent man if there was not a H. C.— there is interposed a H. C. & cry stop Sir you have no right to app[rehen]d. this man— the legislatr knew that wod. do the same thing— & said never let a man go out of the witht. passg. thro the ordeall— it is the only safe guard we have in the world— there are 1000s men who wod. swear out any thing this side hell I hope from henceforth no man shall leave witht. the benefit of the H. C. I would stop him & put him thro the M. C.
— said the Court can exercise their right—
J. S. the Statemts. I made out agst. I have made out to be facts & therefore is not Slander. I have testd. boldly— & have brot. witnesses to prove him to be an adulterer & a vicious man— I did not do it until he began to use his evil influence agt. me— Ih [if] I had been to blame & he got the least chance— he wod. have been here— he knows here & all know that they have nothing agt. me— I have proved all that I ever testd.—— the Court would be bound to discharge me on acct. of havg. proved it— there are fevy [very] few lawyers who know the great priv of the H C act— ask a lawyer— & he dont know but that he has got to go to some judge— has been one of the Supreme Judges his decision is that it is as much in the power of the simple magistrate as of the greatest judge— hence Govrs. & Supreme Judges all know that I am correct— a simple magistrate as the right [p. 12] the right of H. C. shall not be denied— it does not say by a Govr Judge— who does it mean— all the authorities— all judges know that it is a fact— if you hold the off[ice] of a mag[istrate] & you are sworn to keep inviolate the Constit[utio]n. of the you are sworn to fulfil that part which says that you shall not refuse the priv of the H. C. to any one— I have only to open Blackstone or the Bible & then I know where powers are— I never said any thing about F Law [] <​&c &c​> but what is strictly true— I have been placed in— the only sin I ever committed was in covering up their iniquities— & that I am ashamed of & will never do it again—
The Court discharged him on acct. of it being an <​for two reasons 1st.​> illegality of the writ— & they are also convinced that it was got up thro malice— & that should pay the costs of the suit— his char being fully shewn as infamous shews that it was mere malice, mere perse[cutio]n., & not to be countenanced Court all agreed to the sentence— [1/2 page blank] [p. 13]
May 8th. 1844
Municipal Court
Joseph Smith <​on }​>
May 10th. 1844
fair copied (14 pages)
Original Notes [p. [14]]


  1. new scribe logo

    Docket and notation in handwriting of Thomas Bullock.  

  2. new scribe logo

    Insertion probably in handwriting of Willard Richards.  

  3. new scribe logo

    Docket in unidentified handwriting.