Illinois and Missouri

We have seen and heard a statement that Governor Ford had delayed making a decision upon the demand of Missouri for the militia to arrest Joseph Smith, until after the election: so as by intimidation to compel the Mormons to vote the democratic ticket. The authors of this desperate and reckless slander take counsel from their own corrupt hearts, and judge others by a knowledge of what they would do in like case. No doubt but that they would do this and more too if necessary to secure the success of their party, and hence their readiness to believe evil of others. If, however, they had been in the least degree inclined to judge correctly, they would have gone as we have done to the records of the Secretary's office, where they would have ascertained that all these suspicions were groundless; and that the Governor had actually decided not to call out the militia, eleven days before the election.

The following letters we copy from the record in the office of the Secretary of State.

EXECUTIVE DEPARTMENT, }

Springfield Illinois, July, 16, 1843. }

To His Excellency, Thomas Reynolds,

Governor of Missouri:

SIR: The demand of Joseph H. Reynolds, Esq. the agent appointed by you to receive Joseph Smith, jr., for a detachment of militia to assist in retaking said Smith, has been duly considered by me, and I now, at the earliest moment, after coming to a conclusion on the subject, proceed to lay before you the result of my deliberations.

The request for a military force is declined. The reasons which have influenced me in coming to this determination will be furnished to you at large, as soon as I can obtain leisure to do so. I have the honor to be

Very respectfully,

Your obedient servant,

THOMAS FORD.

EXECUTIVE DEPARTMENT, }

Springfield, Illinois, Aug. 14, 1843 }

To His Excellency Thomas Reynolds,

Governor of the State of Missouri:

SIR: On the 26th day of July last, I had the honor to inform you by letter, that after full consideration, I had come to the conclusion to decline ordering out a detachment of militia to assist in retaking Joseph Smith, jr., who was said to have escaped from the custody of the Missouri agent and in that letter I engaged to furnish you with my reasons at large for coming to that determination.

It appears that an indictment was found at a special term of the Davies Circuit Court, Missouri, held on the 5th day of June last, against Smith for treason. Upon this indictment the Governor of Missouri issued a requisition to the Governor of this State, demanding the arrest and delivery of Smith. A writ was thereupon duly issued by me for the apprehension and delivery of Smith as demanded. This writ was put into the hands of an officer of this state to be executed. The officer to whom it was directed immediately arrested Smith, and delivered him to Joseph H. Reynolds, the agent of Missouri, appointed to receive him. The writ has been returned to me as having been fully executed.

After Smith was delivered into the hands of Mr. Joseph H. Reynolds, it is alleged that he was rescued from his custody by the municipal court of the city of Nauvoo.

Affidavits on both sides of the question have been filed before me, and I also have additional information on the subject contained in a report of M. Brayman, Esq., a special agent appointed by myself to investigate and collect facts in relation to the whole matter.

The undisputed facts of the case are that Smith was arrested near Dixon, in Lee county; he was immediately delivered over to Mr. Reynolds: Smith immediately brought an action against Mr. Reynolds for false imprisonment, and held him to bail in the sum of four hundred dollars. Mr. Reynolds being in a strange country, and unable to give bail, was taken into custody by the sheriff of Lee county, and held as a prisoner; whilst Reynolds held Smith as his prisoner. The parties finally concluded to get out writs of habeas corpus, and try the legality of the imprisonment in each case. The

writs were accordingly issued, returnable before the nearest judicial tribunal; in the circuit in which Quincy is situated, and thereupon all parties proceeded in the direction of Quincy: Smith being in the custody of Reynolds, and Reynolds himself in the custody of the sheriff of Lee county. On the road during their progress, they were met by parties of the citizens of Nauvoo; some or most of whom are said to have been members of the Nauvoo legion; though there is no evidence that they appeared in a military capacity. There was no exhibition of arms of any description, nor was there any military or warlike array; nor was there any actual force used; though Mr. Reynolds testifies that he felt under constraint, and that Smith, soon after meeting the first parties of Mormons enlarged himself from his custody.-Mr. Reynolds also testifies, (and there can be no doubt of the fact,) that he was taken to Nauvoo against his will. But whether he was taken there by the command of Smith and his friends, or by the voluntary act of the sheriff of Lee county, who had him in custody, does not appear by any testimony furnished by Mr. Reynolds. The affidavit of the sheriff has not been obtained; though there is evidence on the other side to show that the sheriff of Lee county voluntarily carried Mr. Reynolds to the city of Nauvoo, without any coercion on the part of any one.

After arriving at Nauvoo, a writ of habeas corpus was issued by the municipal court of that city, and Mr. Reynolds was compelled by the authority of the court to produce Mr. Smith before that tribunal. After hearing the case, the court discharged Smith from arrest.

There is much other evidence submitted; but the foregoing is the material part of it to be considered on the present occasion.

Now Sir, I might safely rest my refusal to order a detachment of militia to assist in retaking Smith upon the ground that the laws of this state have been fully exercised in the matter. A writ has been issued for his apprehension. Smith was apprehended; and was duly delivered by the officer of this state, to the agent of the state of Missouri, appointed to receive him. No process, officer, or authority of this state has been resisted or interfered with. I have fully executed the duty which the laws impose on me, and have not been resisted either in the writ issued for the arrest of Smith, or in the person of the officer appointed to apprehend him. If there has been any resistance to any one, it has been to the officer of Missouri, after Smith came to his custody; and every thing had been done on my part which the law warranted me in doing.

Another objection to ordering a detachment of militia, arises out of the militia laws of this State; the forty-third section of which is as follows: "Whenever it may be necessary to call into actual service any part of the militia of this State on a requisition of the executive of the United States, on an actual or threatened invasion of this State, or any of the neighboring States or Territories of the United States, the commander-in-chief shall forthwith demand from each division a detachment in proportion to the strength thereof, except as hereinafter excepted; which order shall be delivered by a special messenger to the several commandants of divisions, specifying the number demanded from each division; the time and place of rendezvous, if ordered to march; and if the same be detached under any particular act of the U. States to endorse the same on such order: Provided, that whenever the safety of any of the frontier settlements in this State, shall, in the opinion of the Governor, require it, he may exempt the militia in such settlements from being called into service, and make such further provision for the defence [defense] as the necessity of the case may require; which exemption shall be expressed in his orders to commandants of the division; who, together with the commandants of brigades, regiments, battalions and companies, shall govern themselves accordingly;-And provided also, that such militia-men may be required to serve as spies on their own frontiers; and that on actual invasion or any extreme emergency, the commander-in-chief, commandants of divisions, brigades, battalions and companies may call on the whole or any part of the militia under their respective commands, as the nature of the case may require, who shall continue in service, if necessary, until the militia can be regularly called out."

The Governor has no other authority in calling out the militia, than that which is contained in this section; by which it appears that there must be either a requisition from the President, an actual or threatened invasion, or some extreme emergency to warrant the Governor in exercising this power. No one of these contingencies has arisen. There has been no requisition from the President-there has been no actual or threatened invasion of the State-nor is this such an extreme emergency as is contemplated by the law. If we allow that force was exhibited and threatened, to compel your agent to carry his prisoner before the municipal court of Nauvoo; that the court there took cognizance of the cause without jurisdiction, and against the consent of your agent, it would amount at most to a riot; and to a resistance of authority in a single case, and that too under

color of law and legal process. To constitute an extreme emergency, so as to justify a call for the militia, there ought, in my opinion, to be something more than a mere illegal act-something more than a design to resist the law in a single instance. The design ought to be general as in treason, rebellion, or insurrection; in which cases an universality of design is essential to constitute the offence [offense].

If a person resist a constable or sheriff, or other officer charged with the execution of process, with an intention to resist the law in that particular instance; such an act is a misdemeanor at most-is indictable as such, and may be met by the posse comitatus. But something more than a mere misdemeanor must have been contemplated by the law. It would seem to me that it could never have been intended that the Governor should call out the militia in every case where a constable or sheriff may be resisted; and even in a case of a riotous resistance, it would not be an extreme emergency without some military array, some warlike show, or some threatened resistance to the government itself,

In this case, there had been no warkile [warlike] array in the proceedings of Smith and his friends: no exhibition of arms, and no actual force of an illegal character. Mr. Reynolds was not subjected to illegal imprisonment. He was arrested on lawful process, and although that process may have been wrongfully obtained, yet his arrest was not riotous or unlawful, but according to the forms of law. Mr. Reynolds continued in the custody of the sheriff by virtue of that process until he was taken to Nauvoo; and although he was taken to that city against his will, and was by that means compelled to take his prisoner there, yet was he taken by lawful process; by an authorised [authorized] officer who acted, so far as I have any evidence, freely and voluntarily in so doing. In no one aspect of the case can I consider the present an extreme emergency, warranting a call for the militia according to the provisions of law in this State.

Thus, sir, I have stated to you the principal reasons which have influenced me in refusing to order a call of the militia. To my mind they are entirely satisfactory; and I hope they will meet with the approval of your excellence, and the citizens of Missouri.

I have the honor to be your excellency's most obedient servant.

THOMAS FORD.

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