“Persecution,” 15 August 1842 [Extradition of JS for Accessory to Assault]

Document Transcript

PERSECUTION.
“If ye will live godly in Christ Jesus, ye shall suffer persecution,” was the solemn proclamation made by one of the ancient servants of God;—a prophecy that has received its fulfilment in all ages, that has been known and understood by all saints, and that has been engraven upon the memories of all the faithful: for while blood, and fire, and sword, and torture, have been brought into requisition against the saints; whilst chains, and fetters, and death have been employed, and their sighings and mournings have been wafted on the wings of the wind; their solitary hours and midnight cries; their distress and calamity have been disregarded. This eternal truth has re-echoed in their ears; it has touched their inmost soul; it has been written on the tablet of their hearts—“if ye will live godly in Christ Jesus ye shall suffer persecution.”
Ever since the formation of the church of Jesus Christ of Latter Day Saints, calumny, reproach and persecution has flown plentifully [p. 886] into their lap—detraction, slander, falsehood, and misrepresentation has been gratuitously heaped upon them; they have been assailed by vexatious law suits, organized mobs, and illegally treated by militia; they have been imprisoned, whipped, tarred and feathered, and driven from their homes; they have had their property confiscated, and have suffered banishment, exile, and death for their religion. has been one of the principal actors in the scene; she has made many a wife a widow, and many a child an orphan. The tears of the oppressed have plentifully watered her soil; the cries of her robbed and spoiled have rung through her valleys, and been re-echoed from hill to hill; many a weary pilgrim borne down with oppression and weary of life has laid himself down to sleep in the arms of death, while the blood of the innocent has drenched her soil. And never till the trump of God shall sound, the sleeping dead shall arise, the books be opened and the secret history of peoples and nations be unfolded, will the amount of their sufferings be fully known. That day will unfold scenes of wickedness, misery, and oppression, and deeds of inhumanity and blood, that the most eloquent cannot depict; the pencil of the limner portray, and, that is beyond the power of language to unfold—scenes of misery, of woe, and human suffering. Dipped in the malice of the most fiendish hate, the cup of misery has been rung out, and they have drunk it to the very dregs. , frantic with rage, and not yet filled with blood, wishes now to follow her bleeding victims to their exile, and satiate herself with blood. And not satisfied with staining her own escutcheon, she wishes to decoy the noble, generous, and patriotic sons of to deceive them with appearances—to draw them into her snare, that she may be sharer in her crimes, and participate in her guilt, and stamp with eternal infamy her character. We have already to blush for the gullibility of many of her editors who feel desirous to fan the deadly flame, and stain their hands with her foul deeds. We would advise such to halt, to pause for a moment—to reflect upon what they are doing. Have you not witnessed their wanton persecution? their cruel oppression? their deadly hate? Have you not loudly exclaimed against such proceeding? Stood forth in defence of republicanism—and as true patriots defended the rights of man? And can you now advocate a cause that would attempt to, or even moot the question of making an innocent, vir[tu]ous people “tremble at the sight of gathering hosts?”
Who is it that has made his affidavit that Joseph Smith has been accessary to shooting him? of a man who three years ago issued an order to exterminate fifteen thousand men women and children in republican ; a man who sanctioned mobocracy, and raised militia for that effect; a man who has been the cause of the death of scores of innocent people, and has actually been a wholesale murderer. This is the man who prefers the charge; a man who has long ago violated his constitutional oath; we would deprecate at all times the commission of so diabolical a crime as that of murder, if committed upon our greatest enemies; and would content ourselves with letting the Lord take vengeance into his own hands; yet we would seriously ask if his statement concerning Joseph Smith is probable, or even possible, under the circumstances mentioned by him? Could swear that Joseph Smith was accessary before the fact, when he has not seen him for three years? and when Joseph Smith has not been in the state of for that tiime? whatever his belief might be about his being engaged in the plot he could not swear to it. Concerning he was in , and it is reported that he is gone there to prove himself clear, but we should think that is the last place to go to for justice; we dont think that she is capable of administering it to the Mormons; she must however first atone for her bloody deeds, and refund to them what she has robbed them of, before their confidence can be restored in her justice, or righteousness; but we would ask is there no one to murder men but Mormons? are not assassins stalking through her streets daily? let the history of the frequent murders committed in and other places in answer. But again who does not know that has been in frequent difficulties with other people; that he has been on the point of dueling with senators and that his life has been frequently threatened, and that not by Mormons; this we are prepared to prove. Without saying more upon this subject we will proceed to give a history of the arrest.
On Monday the 8th inst. Gen. Smith was arrested upon a warrant under the signature of , in accordance as stated with a call from of , upon the affidavit of . was arrested at the same time as principal. There was no evasion of this call for the persons of Messrs. Smith and . The Municipal court, however, issued a writ of habeas corpus, according to the constitution and city charter; this writ demanded the bod [p. 887]ies of Smith and to be brought before the said court but the officers in charge of these men refused to obey its call; though after some deliberation, they left them in charge of the , without the original writ by which they were arrested, and by which only they could be retained, and returned back to for further instruction; thus Messrs. Smith and were free from the arrest, as the had no authority to hold them in custody; some two or three days after the aforesaid officers returned, for the purpose of executing the ’s order, without paying attention to the writ of habeas corpus issued by the municipal court; but Messrs. Smith and were absent.
In a free government every person’s rights and priveleges are the same; no extraordinary process can issue legally, nor no extra-judicial act be required; justice, like her representative goddess, is blind to appearances, and favors no one. In this point of view, then, let us legally examine the case in question:— makes an affidavit in , and charges one with “shooting with intent to kill” on the night of the sixth of May, 1842, and that the said had fled from justice to the State of . Shooting with intent to kill, and alive two or three months after to swear to it, may be set down as insufficient grounds for a writ from the Gov. of one state, to demand a person as a fugative from justice in another state; for, aught that appears to the contrary, he might have shot in his own defence and be justifiable; as the charge is not grounded on the wilful, malicious, or felonious intent, without the fear of God before his eyes, to murder; the affidavit, is therefore, not sufficient for the apprehension, detention and transportation of the said to the courts of . Here we deny that the arrested is the one intended in the writ, this being not guilty.
If knew, of himself, the fact that shot at him with intent to kill, why did he delay the prosecution some two or three months? If he obtained his knowledge from a second or third person, why not avail himself of their affidavits in the body of the writ?
Again, charges one Mr. Joseph Smith with being “accessary before the fact to an assault with intent to kill,” on the night of the sixth of May, 1842. This must allude to some other Joseph Smith, as the Joseph Smith of this , was in , on the aforesaid sixth of May 1842, and on the next day he was at his post as Lt. Gen. of the Nauvoo Legion. Nor can it be proved that he has been in the state of for the last three years.
But for the sake of argument admit the language of the writ, and Joseph Smith as an accessary before the fact, with intent to kill, must have aided or abetted by words, or by means, while in the state of , and can not come under the purview of the fugitive act, having not fled from justice from another state;—and, according to the express language of the constitution; “he could not be liable to be transported out of the state for an offence committed within the same.” An accessary before the fact in manslaughter is an anomaly—and now if the Joseph Smith of , has committed a crime of the nature charged in the writ, which we deny in toto, he should be held amenable to the laws of and in the ordinary course of procedure by inditement, in accordance with the right of the constitution, which says that he should have “a speedy public trial by an impartial jury of the vicinage.”
Judging now from all the facts of the case, taking the two affidavits together, we must say that the whole forms but a poor excuse for executive interference, and when properly weighed by good judges of law in criminal jurisprudence, will be found wanting in all the important counts which constitute a fair case.
As to the writ of habeas corpus, issued by the municipal court of the city of , it was not acted upon, though we believe that so long as it was not incompatible with the spirit and meaning of the constitution of the , and of the constitution of the , its power was sovereign, as to the rights and privileges of citizens, granted to them by the city charter, having these express privileges, in words as follows: “to make ordain, establish and execute all such ordinances, not repugnant to the constitution of the and of this , as they may deem necessary for the peace, benefit, good order, regulation, convenience and cleanliness of the ”—and “the municipal court shall have power to grant writs of habeas corpus in all cases arising under the ordinances of the City Council.”
Now, it is well known that if this court exceeded the bounds of the chartered power, or transcended the limits of the constitution of the , or , it could be made to respond in a writ of quo warranto; and, as a writ of habeas corpus can only test the validity, not the virtue of a process, (as testimony to prove the guilt or innocence of a person—under an in [p. 888]vestigation by habeas corpus, is inadmissible) we believe, that judges, lawyers, and jurors, will not be very apprehensive that the law of the land, or the rights of the people, will suffer violence on this account.
Under the existing animosity of the inhabitants of the State of , manifested towards the church of Latter Day Saints, prudence would dictate great caution, and forbearance in the proceedings of public functionaries, relative to claims for persons or property in favor of either party, holding sacred the old maxim: “That it would be better to let ninety and nine guilty persons go unpunished, than to punish one innocent person unjustly.”
Concerning the whole matter, we believe that the parties are entirely innocent of the charges alledged against them; and that the whole of it is a wicked and malicious persecution. But it may here be asked by some if they are innocent, why did they not apply to the master in chancery for a writ of habeas corpus, present themselves before the Judge of the district court, and prove themselves clear?
First, we would answer, that the writ of our municipal court was treated with contempt by the officers, and it would have been dishonoring our municipal authorities to have acknowledged the insufficiency of their writ, and to have let our city charter be wantonly trodden under foot; and that could not have been enforced without coercion, and perhaps employing military force, which under the present excited state of society might have been construed to treason.
In the second place, if they appealed to the district court it might have availed them nothing, even if the Judge felt disposed to do justice (which we certainly believe he would have done) as their dismission would rest upon some technicalities of law, rather than upon the merits of the case; as testimony to prove the guilt, or innocence of the persons charged, could not be admitted on the investigation on a writ of habeas corpus, the question, not being, whether the persons are guilty or not guilty; but merely to test the validity of the writ; which if proved to be issued in due form of law, however innocent the parties might be, would subject them to be transported to —to be murdered.
Upon the whele [whole] we think that they have taken the wisest course; we have no reflections to make upon their conduct, and shall maintain unshaken our opinions unless we have more light on the subject than we now possess. [p. 889]