Transcript of Proceedings, 6 January 1843 [Extradition of JS for Accessory to Assault]

  • Source Note
  • Historical Introduction

Document Transcript

At a Circuit Cour
Pleas before the Circuit Court of the for the District of at the December Term A. D. 1842— December 31st.
In the matter of Joseph Smith) Petition for
Attorney for said Petitioner comes and moves the Court for the allowance of a writ of habeas corpus and files the annexed petition and the papers referred to therein.—
To the Honorable the Circuit Court of the for the District of
The petition of Joseph Smith respectfully sheweth that he has been arrested and is detained in custody by Sheriff of upon a Warrant issued by the of the State of upon the requisition of the of as a fugitive from justice a copy of the said Warrant and the requisition and the affidavit upon which the same was issued is hereto annexed. And your petitioner is also arrested by and by him also held and detained in custody (jointly with the said of ) upon a proclamation issued by the of the State of a copy of which proclamation is hereunto annexed.— Your Petitioner prays that a writ of Habeas Corpus may be issued by this Court directed to the said and commanding them forthwith and without delay to bring your Petitioner before this Honorable Court to abide such order and direction as the said Court may make in the premises. Your Petitioner states that he is arrested and detained as aforesaid under color of a law of the and that his arrest and detention is illegal and in violation of law, and without the authority of law, in this, that your Petitioner is not a fugitive from justice nor has he fled from the State of . [p. [1]]
And your Petitioner as in duty bound will ever pray——
Joseph Smith. [35 lines blank] [p. [2]]
The people of the State of to the of , Greeting
Whereas it has been made known to me by the executive authority of the State of that one Joseph Smith stands charged by the affidavit of one made on the 20th. day of July 1842 at the County of in the State of , before a justice of the peace within and for the County of aforesaid, with being accessary before the fact to an assault with intent to kill made by one on on the night of the sixth day of May A. D. 1842 at the County of in said State of and that the said Joseph Smith has fled from the Justice of said and taken reffuge in the State of .
Now therefore I Governor of the State of pursuant to the Constitution and laws of the and of this , do hereby command you to arrest and apprehend the said Joseph Smith if he be found within the limits of the aforesaid, and cause him to be safely kept and delivered to the custody of , who has been duly constituted the Agent of the said State of to receive said fugitive from the justice of said , he paying all fees and charges for the arrest and apprehension of said Joseph Smith, and make due return to the Executive Department of this the manner in which this writ may be executed.
Seal
In testimony whereof I have hereunto set my hand and caused the Great Seal of the to be affixed. Done at the City of this 31st. day of December, in the [p. [3]]
year of our Lord one thousand eight hundred and forty two, and of the Independance of the the sixty seventh
Signed
By the Governor
Secretary of State [p. [4]]
The of the State of to the of the State of Greeting:
Whereas, it appears by the annexed document, which is hereby certified as authentic, that one Joseph Smith is a fugitive from justice, charged with being accessary before the fact, to an assault with intent to kill, made by one on in this , and it is represented to the Executive Department of this , has fled to the State of :
Now, therefore I Governor of the said State of , by virtue of the authority in me vested by the Constitution and Laws of the , do by these presents demand the surrender and delivery of the said Joseph Smith to who is hereby appointed as the Agent to receive the said Joseph Smith on the part of this .
L. S.
In testimony whereof, I of the State of , have hereunto set my hand, and caused to be affixed the Great Seal of State of . Done at the City of Jefferson this 22nd. day of July in the year of our Lord One thousand eight hundred and forty two, of the Independance of the the Sixty-Seventh and of this the twenty third
By the Governor
Jas L. Minor
Secretary of State [p. [5]]
State of Missouri,) Ss [scilicet]
County of .)
This day personally appeared before me a Justice of the peace within and for the County of the subscriber who being duly sworn doeth depose and say that on the night of the sixth day of May 1842 while sitting in his dwelling in the Town of in the County of , he was shot with intent to kill, and that his life was dispaired of for several days, and that he believes, and has good reason to believe from evidence and information now in his possession, that Joseph Smith commonly called the Mormon Prophet was accessary before the fact of the intended murder; and that the said Joseph Smith is a citizen or resident of the State of , and the said hereby applies to the of the State of to make a demand on the of the State of , to deliver the said Joseph Smith commonly called the Mormon Prophet to some person authorised to receive and convey him to the and aforesaid, there to be dealt with according to Law.
Sworn to and subscribed before me this 20th. day of July 1842
J.P [8 lines blank] [p. [6]]
State of
Office of Secretary of State
I , Secretary of State, of the State of , do hereby certify the foregoing to be a true and perfect copy of the demand of the of the State of upon the of this , for the apprehension and Surrender of Joseph Smith who is charged with being a fugitive from justice, and the affidavit of attached to the same, which are on file in this office
L. S
In testimony whereof I have hereunto set my hand and affixed the Great Seal of at this thirty first day of December A. D. 1842
Secretary of State
I do hereby certify the foregoing to be true copies of the demand and affidavit upon which the writ for the apprehension of Joseph Smith was this day issued
Dec— 31— 1842
Sec. of State [p. [7]]
[page [8] blank] [p. [8]]
In the matter of Joseph Smith)
In the Circuit Court Dist. of the Decr. Term 1842— Decr. 31st. day— On Petition for
And now at this day comes the said Joseph Smith by his Attorney and presents to the Court his Petition setting forth that he has been arrested and is detained in custody by Sheriff of upon a warrant issued by the of the State of upon the requisition of the of as a fugitive from Justice; and that he is also arrested by and by him also held <​and detained​> in custody (jointly with the said of ) upon a proclamation issued by the of the State of ; that he is arrested and detained as aforesaid under color of a Law of the ; and that his arrest and detention is illegal and in violation of law and without the authority of law in this, that the said Petitioner is not a fugitive from Justice, nor has he fled from the State of ; and praying that a writ of Habeas Corpus may be issued by this Court directed to the said and commanding them forthwith and without delay to bring the Petitioner before this Court to abide such order and direction as this Court may make in the premises: Upon reading and filing of which said Petition, It is considered and ordered by the Court that a writ of Habeas Corpus be issued as prayed for in said Petition returnable forthwith— [7 lines blank] [p. [9]]
[page [10] blank] [p. [10]]
And thereupon a writ of was issued in the words and figures following, To Wit:—
The
To Sheriff of State of &
Greeting— We command you, that you do forthwith, without excuse or delay, bring or cause to be brought, before the Circuit Court of the for the District of ; at the District Court Room in the City of the body of Joseph Smith, by whatever name or addition he is known or called, and who is unlawfully detained in your custody, as it is said, with the day, and cause of his caption and detention; then & there to perform and abide such order and direction as the said Court shall make in that behalf. And hereof make due return, under the penalty of what the law directs.
Witness Roger B. Taney chief Justice of the Supreme Court of the at in the District of this 31 day of December A.D. 1842 & of our Indepence the 67. year.— clk
L.S. [p. [11]]
And afterwards on the said 31st. day of December aforesaid the said writ of was returned, with returns endorsed thereon in the words and figures following
I Sheriff of do hereby return to the within writ that the within named Joseph Smith is in my custody by virtue of a Warrant issued by the of the State of upon the requisition of the of the State of made on the affidavit of and a copy of the said Warrant requisition and affidavit is hereunto annexed
dated December 31. 1842
Shff.
I do return to the within writ that the said Joseph Smith is in my custody by virtue of an arrest made by me of his body under and by virtue of a proclamation of the of the State of a copy whereof is hereunto annexed
dated December 31. 1842
The return to the within writ of Habeas Corpus appears by the foregoing returns and the schedule hereunto annexed, and the body of said Joseph Smith is in Court
December 31. 1842
U. S. Marshall
Dist. of [p. [12]]
And afterward, to wit on the same day aforesaid upon the return to the said writ of the following orders were made in this cause:
In the matter of Joseph Smith) On Habeas Corpus
and having made return to the writ of habeas corpus issued in this cause and brought the body of the said Joseph Smith into Court, on motion of his Attorney, it is ordered that the said Joseph Smith be admitted to bail; and thereupon come the said Joseph Smith in proper person, principal, and and sureties and severally acknowledge themselves to owe and be indebted to the in the sum of Two thousand dollars each to be levied of their respective goods and chattels lands and tenements, but to be void on condition that the said Joseph Smith shall be and appear before the Circuit Court of the for the District of now sitting, from day to day, and shall not depart without leave of the Court.— And thereupon it is ordered that this cause be set for hearing on monday next. And it is further ordered that the of and the be informed by the that Joseph Smith arrested on a warrant issued for his apprehension by the of 31st. December 1842, is before this Court on habeas corpus, and that the case will be heard on Monday January 2d. 1843— and that a copy of this order be handed to each of those Officers.— [10 lines blank] [p. [13]]
[p. [14]]
“It is ordered that the of and the be informed by the that Joseph Smith arrested on a warrant issued for his apprehension by the of 31st. Decr. 1842, is before this Court on a writ of — and that the case will be heard on Monday 2d. January 1842 <​1843​>— and that a copy of this order be handed to each of those Officers.—”
United States of America)
District of )
I Clerk of the Circuit Court of the for the District aforesaid do certify that the foregoing is a true copy of an order passed by said court the 31st. day of December 1842.—
In testimony whereof I have hereunto subscribed my name and affixed the seal of said Court at this 31st. day of December A. D. 1842—
Clk [18 lines blank] [p. [15]]
In the matter of Joseph Smith
On
Copy of order
 
Delivered a Copy of the within order to Governor and Attorney General of the State of December 31st. 1842.—
Marshal
 
s fees
Serving On 2— $4.00
Returning 12.
$4.12
[p. [16]]
And afterwards towit on the 2d. day of January A. D. 1843, comes the attorney for said Petitioner & filed the written denial of the said Petitioner, of the matters and things set forth in the return to the said writ of which denial is in the words & figures following viz. [p. [17]]
[page [18] blank] [p. [18]]
Circuit Court of the District of
In the matter)
of)
Joseph Smith upon )
)
Joseph Smith being brought up on Habeas Corpus before this Court comes and denies the matter set forth in the return at to the same in this, that he is not a fugitive from the justice of the State of ; but alleages and is ready to prove that he was not in the State of at the time of the Commission of the alledged crime set forth in the affidavit of , nor had he been in said for more than three years previous to that time, nor has he been in that since that time— but on the contrary at the time the said alledged assault was made upon the said as set forth in said affidavit the said Smith was at in the County of in the State of , and that he has not fled from the justice of the State of and taken refuge in the State of , as is most untruly stated in the warrant upon which he is arrested, and that the matter set forth in the requisition of the of and in the said Warrant are not supported by oath
Joseph Smith
State of Ss. [scilicet] Joseph Smith being duly sworn saith that the matter and things set forth in the foregoing statement are true.
Sworn and subscribed to before me this 2nd. day of Jany 1843
Clk
Joseph Smith [p. [19]]
[page [20] blank] [p. [20]]
And afterwards towit on Monday January 2d. A. D. 1843 <​the same day and year last aforesaid​> the following order was made in this cause.— viz.
In the matter of Joseph Smith) On
At this day comes the said Joseph Smith <​and​> by his Attorney files his written denial verified by affidavit, of the matter and things set forth in the return to the writ of habeas corpus found in this cause. And at the same time also comes Attorney General of the State of , and on his motion it is ordered that this cause be continued for hearing until Wednesday morning next.— [24 lines blank] [p. [21]]
[page [22] blank] [p. [22]]
And afterwards towit on the 4th. day of January 1843, Attorney General of the State of filed filed his objections to the Jurisdiction of this Court in this cause & moved to dismiss the proceedings herein, which said motion and objections are in the words & figures following viz:—
In the Circuit Court of the State of ——
In the Matter of Joseph Smith)
Attorney General of moves the Court to dismiss the procedings herein for the reason that this Court has no Jurisdiction.
1st. The arrest & detention of Said Smith was not under or by Color of authority of the or any of the offices of the but under and by color of authority of the state of and by the officers of
2d when a fugitive from Justice is arrested by authority of the Governor of any State upon the requisition of any other Governor of another State the courts of Justice neither State or Federal have any authority or Jurisdiction to enquire into any facts behind the Writ.
Atty Genl of — [9 lines blank] [p. [23]]
[page [24] blank] [p. [24]]
And afterward towit on the same day & year last aforesaid the following order was made in this cause, viz:
In the Matter of Joseph) Smith) On
And now again at this day comes the said Joseph Smith by his Attorney and at the same time also comes Attorney General of the State of and enters his motion to dismiss the procedings herein for want of Jurisdiction, and the court having heard the allegations and proofs herein and the argument of council upon the same and also upon the aforesaid motion, and not being Sufficiently advised took time &C.— [20 lines blank] [p. [25]]
[page [26] blank] [p. [26]]
And afterwards towit on the same day & year aforesaid Attorney for said Petitioner filed the affidavits of which the following are copies.—
of the , District of
In the matter)
of)
Joseph Smith upon)
)
District of Ss. [scilicet] , , , being duly sw[o]rn each for himself says that he were at , in the County of in this , on the seventh day of May last, that they saw Joseph Smith on that day reviewing the Nauvoo Legion at that place, in the presence of several thousand persons
Sworn to & subscribed in open Court this 4th. Jany 1843
Clk [8 lines blank] [p. [27]]
[page [28] blank] [p. [28]]
of the . District of
In the matter of)
Joseph Smith upon)
)
District of , , , , and & & being duly sworn say that they know that Joseph Smith was in , in the county of , in the state of during the whole of the sixth & seventh days of May last; That on the sixth day of May Aforesaid the said Smith attended an officer drill at from Ten Oclock in the forenoon to about four o’clock in the afternoon at which drill the said Joseph Smith was present: And these deponents , , , & <​and ——​> were with the said Smith, at aforesaid during the evening of the sixth day of May last & sat with said Smith Joseph Smith in Nauvoo Lodge from Six until nine oclock. of said evening;—
and these deponents. , , & were with the Said Smith at his dwelling house, in , on and during the evening of the fifth day of May last. & conversed with him;— and these <​all​> of the deponents aforesaid do say that on the seventh day of May aforesaid the Said Smith reviewed the Nauvoo Legion, & was present with the said Legion all that day, in the presence of many thousand peopl, and it would have been impossible for the said Joseph Smith to have been at any place in the State of , at any time, on or between the sixth & seventh days of May aforesaid; and these deponents , . & say that they have seen & conversed with the said [p. [29]]
Smith at aforesaid. every day <​daily​> from the Tenth of February last until the first of July last and know that he has not been absent from said city of . at any time, during that time, long enough to have been in the State of .— that in the State of , is about three hundred miles from
Sworn to and subscribed in Open Court this 4th. Jan. 1843—
Clk
 
— [19 lines blank] [p. [30]]
And afterwards towit on the 5th. day of January 1843, the following order was made in this cause, viz.
In the Matter of Joseph Smith) On
And now at this day comes again the said Joseph Smith. by his Attorney and at the same time also comes Attorney General of the State of and the court being now sufficeintly advised of and concerning the motion heretofore entered to dismiss the proceedings in this cause, it is considered that said motion be denied. And the Court having fully considered the Petition of the said Joseph Smith and the matters & and things set forth in the return made to the writ of Habeus Corpus issued herein and being now sufficently advised of and concerning the same. It is considered and adjudged that the matters and things set forth in the return to the said writ of Habeus Corpus are wholly insufficient in law to authorize the arrest and detention of the said Joseph Smith: And it is further considered and ordered and adjudged by the court that the said Joseph Smith be fully released and discharged from the custody of Sheriff of under the warrant of the of the State of mentioned in the said return. and also from the custody of on the Proclamation of the said mentioned in the said return and that he go home without day [p. [31]]
United States of America
District of ss: [scilicet]
I Clerk of the Circuit Court for the District of do certify that the foregoing is a true and correct copy of the record and proceedings before said Court in the matter of Joseph Smith on Petition to be discharged on , as the same remain on the record and files of said Court—
In testimony whereof I have hereunto subscribed my name and affixed the seal of said Court at this sixth day of January A. D. 1843 and of our Independence the 67th. year.—
Clerk [p. [32]]

Footnotes

  1. new scribe logo

    James Owings handwriting begins.  

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    James Owings handwriting ends; William Clayton begins.  

  3. 1

    TEXT: “Seal” enclosed in a hand-drawn representation of a seal.  

  4. 2

    TEXT: A copy of Thomas Carlin’s 20 September 1842 proclamation is attached to the page.  

  5. 3

    TEXT: “LS” (locus sigilli, Latin for “location of the seal”) enclosed in a hand-drawn representation of a seal.  

  6. 4

    TEXT: “L. S” (locus sigilli, Latin for “location of the seal”) enclosed in a hand-drawn representation of a seal.  

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    William Clayton handwriting ends; James Owings begins.  

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    James Owings handwriting ends; William Clayton begins.  

  9. 5

    TEXT: “L.S.” (locus sigilli, Latin for “location of the seal”) is inscribed in larger handwriting within a hand-drawn representation of a seal.  

  10. 6

    William Prentiss.  

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    William Clayton handwriting ends; James Owings begins.  

  12. new scribe logo

    Docket in handwriting of James Owings.  

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    Notation in handwriting of James Owings.  

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    Signature presumably of William Prentiss.  

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    Notation presumably in handwriting of William Prentiss.  

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    William Prentiss handwriting ends; James Owings begins.  

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    James Owings handwriting ends; William Clayton begins.  

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    William Clayton handwriting ends; James Owings begins.  

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    James Owings handwriting ends; Willard Richards begins.  

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    Willard Richards handwriting ends; James Owings begins.  

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    James Owings handwriting ends; Willard Richards begins.  

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    Willard Richards handwriting ends; James Owings begins.  

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    James Owings handwriting ends; William Clayton begins.  

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    William Clayton handwriting ends; Willard Richards begins.  

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    Willard Richards handwriting ends; James Owings begins.  

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    James Owings handwriting ends; Willard Richards begins.  

  27. 7

    Isaac Newton Morris.  

  28. new scribe logo

    Willard Richards handwriting ends; James Owings begins.  

  29. new scribe logo

    James Owings handwriting ends; Willard Richards begins.  

  30. new scribe logo

    Certification in handwriting of James Owings.  

  31. 8

    TEXT: Remnants of a wax seal appear to the left of the certification.