Letter to Sidney Rigdon, Esq

Chicago, Oct. 20th 1842.

SIDNEY RIGDON, ESQ:-

Dear Sir: In answer to your favors of the 17th inst. Mr. Warren was correct in the information he gave you of my opinion of the illegality of the requisition made by the Governor of Missouri, upon the Governor of this State, for the surrender of Joseph Smith, and that the Governor of this State should cause him to be arrested, for the purpose of being surrendered I had no doubt; but the Supreme Court of this State would discharge him upon Habeas Corpus,-subsequent examination has confirmed me in that opinion. I understand from your letter, and from the statement of facts made to me by Mr. Warren, that the requisition of the Governor of Missouri, is accompanied by an affidavit of Ex-Governor Boggs, stating in substance, that on the 6th day of May last he was shot while sitting in his house, with intent to kill, and as he verily believes, the act was committed by O. P. Rockwell, and that Joseph Smith was accessory to the crime before its commission, and that he has fled from justice; that it can be proved that Joseph Smith was not in the State of Missouri at the time the crime was committed, but was in this State; that it is untrue that he was in the State of Missouri at the time of the commission of the said crime, or has been there at any time since: he could not, therefore, have fled from that State since the commission of the said crime.

The right on the part of the Governor of Missouri to demand Smith, and the duty on the part of the Governor of this State to deliver him up: if they exist; are given and imposed by that clause of the Constitution of the United States. which declares 'that a person charged in any State with Treason, Felony, or other crime who shall flee from justice and be found in another State; shall on demand of the Executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime.'

It is unnecessary to refer to the act of Congress in relation to the delivery up of fugitives from justice, as Congress has just so much power and no more than is expressly given by the said clause in the Constitution-the Constitution is the best exponent of itself-what person then can be surrendered up by the Governor of one State to the Governor of another? First, He must be a person charged with Treason, Felony, or other crime; it is sufficient if he be charged with the commission of crime, either by indictment found or by affidavit. Second, 'He must be a person who shall flee from justice and be found in another State.' It is not sufficient to satisfy this branch of the Constitution, that he should be 'charged' with having fled from justice, unless he has actually fled from the State where the offence [offense] was committed to another State, the Governor of this State has no jurisdiction over his person and cannot deliver him up. When Mr. Smith is brought up on a Habeas Corpus, he will have a right, under the 3rd Sec of our Habeas Corpus Act, to introduce testimony and shew [show] that the 'process upon which he is arrested was obtained by false pretence [pretense],' that it is untrue, that he fled from the State of Missouri, to evade being brought to justice there, for the crime of which he is charged, he will have the right to place himself upon the platform of the Constitution of the United States, and say I am a citizen of the State of Illinois; I have not fled from the State of Missouri or from the 'justice' of that State, on account of the commission of the crime with which I am charged. I am ready to prove that the charge of having fled from that State is false, and I am not, therefore, subject under the Constitution of the United States to be delivered up to that State for trial.

You say in your letter to me that you doubt whether on a Habeas corpus the Court would have a right to try the question whether Smith was in Missouri at the time of the commission of the crime of which he is charged. To this I answer that upon a Habeas Corpus the Court would be bound to try the question whether Smith fled from justice from Missouri to this State; the affidavit of Mr. Boggs is not conclusive on this point-it may be rebutted-unless Smith is a person who has fled from justice he

is not subject to be delivered up,-under the express provisions of our own Habeas Corpus Act, he has a right to show that the affidavit is false and that the order for his arrest was obtained by false pretenses. Again, the affidavit on its face was not sufficient to authorise [authorize] the arrest of Smith, it is evasive and deceptive-it does not show that he fled from the State of Missouri to evade justice for the commission of the crime of which he is charged by Gov. Boggs.

Robert G. Williams, in the year 1835, was indicted in the State of Alabama for attempting to incite rebellion and insurrection in that State; he was demanded by the Gov. of that State, of the Gov. of New York and the requisition stated that he had FLED FROM JUSTICE-the Governor of the State of New York (Marcy) took notice that the said Williams was a citizen of the State of New York, and had not fled from justice from Alabama, and on THAT GROUND ALONE refused to surrender him up. This was a stronger case than that of Smith's, as an INDICTMENT HAD BEEN FOUND. Gov. Marcy puts his refusal upon the express ground that by the Constitution of the United States the Governor of one State had no right to demand, nor the Governor of another State a right to surrender up one of his citizens unless had fled from justice; and it was the right and the duty of the Governor upon whom the demand was made to inquire into the fact whether he had fled from justice before he made the surrender. I have the book containing all the proceedings in this case of Williams: there are several other cases equally in point, and they all proceed upon the ground that the Governor of a State has no jurisdiction over the body of a citizen to arrest and surrender him up to a foreign State unless he has fled from that State to evade justice,' or in other words to evade being tried for the offence [offense] with which he is charged. In a despotic form of Government the sovereign power is the will of the Monarch who can act in every instance as may suit his pleasure; but can the Governor of one of our States, of his own mere will, without any authority from the Constitution, or the Legislative power of the State, arrest and deliver up to a foreign Government any person whatever If he can do this, then is the liberty of the citizen wholly at his disposal.

The writ of Habeas Corpus is a suit which every person imprisoned or unlawfully detained has a right to prosecute for the recovery of his liberty, and if he is in custody by process from a competent power he is entitled to his discharge when the jurisdiction has been executed.

The Governor of this State has the power or jurisdiction over the person of a citizen of this State to arrest and cause him to be delivered up and transported to another State, except the power expressly given to him by the Constitution of the United States, and what is that power? it only authorises [authorizes] the Governor of one State to surrender up a fugitive from justice to return him back to the State from whence he has fled. First, The person to be surrendered up must be a fugitive from the State to which it is attempted to surrender him. Second, He must be a fugitive from justice; in other words he must have been in the State when and where the crime was committed and have fled from that State to evade being apprehended and tried for that crime. Third, Unless he is in fact such a fugitive from justice, the Governor has no power, by the laws or Constitution, to deliver him up. Fourth, If he is charged with being a fugitive from justice and the Governor cause him to be apprehended on that charge; he has a right to sue out a Habeas Corpus and when brought up on that writ he has the undoubted right of showing that the Governor has no Constitutional power to deliver him up to another State; that he has not 'fled from justice into this State,' and is not such a person as the constitution authorises [authorizes] the Governor to deliver up. The question to be examined into upon the return of the Habeas Corpus would be a mere question of locality, the question would be, was Smith in this State or not at the time the crime was committed in Missouri? If he was in this State at that time, then he could not be a fugitive from justice, from Missouri, in the sense of the constitution, and the Governor would have no power to deliver him up.

The argument that because Gov. Boggs has made affidavit that Smith has fled from justice, his affidavit is to be taken as conclusive on that point, and that upon the return of a Habeas Corpus, Smith would be precluded from controverting or showing the falsity of that affidavit, is to absurd to require a serious answer.

The liberties of the citizens of this State are not held on quite so feeble a tenure, nor does the Constitution authorise [authorize] the governor to transport the citizens of this State upon a mere 'charge' made by a citizen of another State; such is not the reading of the Constitution; that instrument only authorises [authorizes] the delivery up of such persons 'who shall flee' upon the demand of the Executive authority of the State from which they 'fled'-here must have been a 'flight' in fact and indeed from the State where

the offence [offense] was committed or the Governor has no jurisdiction to 'deliver up.' If the charge of having 'fled' is made, and the Governor acting in pais is attempting to deliver up upon that charge, the person attempted to be made the victim has a clear undoubted constitutional right, by means of a writ of Habeas Corpus, to test its truth before a judicial tribunal of the country, and if the charge is proven to be false, the Governor is ousted of his jurisdiction over the person of the prisoner, and he is restored to his liberty before he has undergone the penalty of the transportaiou [transportation] to a foreign country, upon the mere charge of an interested or partial witness.

The power of the Executive of a State to surrender up a citizen to be transported to a foreign State for trial; is a most tremendous power which might be greatly abused, were it not limited by Constitutional checks, and the citizens secured against its despotic exercise by the writ of Habeas Corpus. In the case of Williams, the Governor of Alabama, says, 'What occurs daily in the ordinary course of criminal proceedings, may take place in regard to persons transported to a distant jurisdiction for trial. It may happen that an innocent man will be accused, and, if demanded, he must be delivered up, should your exposition of the Constitution be sanctioned. Under these circumstances his condition would be perilous indeed; dragged from his home, far removed from friends; borne down by the weight of imputed guilt, and unable, probably to obtain the evidence by which he might vindicate his innocence; if appearances were against him he could scarcely hope to escape unmerited condemnation.

The American colonists regarded the exercise of this power, as an act of revolting tyranny, and assigned it in the declaration of Independence, as one of the prominent causes that impelled them to a separation from the British Empire. A power which may be thus oppressively used should be resorted to with the greatest caution. When its exercise is invoked it is not sufficient that the cause may apparently come within the letter of the Constitution; it is the duty of the Executive, before yielding a blind obedience to the letter of the law, to see that the case comes within the spirit and meaning of the Constitution. It may be pleasing as well as instructive to look into the proceedings of the Executive of our sister State, and witness, that by faithfully administering the law in relation to the delivery up of fugitives from justice, according to its spirit and meaning they have saved at least two of the citizens of Illinois from becoming victims to its abuse. In the year 1839 the Governor of the State of New York was presented with the copy of an indictment by a grand jury in the city of New York against John & Nathan Aldritch, for fraud in obtaining goods by false pretences, [pretenses], and was requested to make a requisition upon the Governor of Illinois, to surrender them up as fugitives from justice. Now here was case which came exactly within the letter of the Law of Congress, in relation to fugitives from justice. An indictment had been found charging them with having committed a crime. But did the Governor of New York make the 'requisition?' No; he referred the application to the Hon. John C. Spencer, now Secretary of War, and one of the most enlightened lawyers of the age.

The following is an extract of Mr. Spencer's opinion upon the case:

"The Constitutional provision under which requisitions may be made by the Governor of one State upon the Governor of another, was a substitute for the principle recognized by the law of Nations, by which one sovereign is bound to deliver to another, fugitives who have committed certain offences [offenses]. These offences [offenses] are of the deepest grade of criminality, and robbers, murderers, and incendiaries, are those enumerated, as proper to be surrendered. Following the analogy thus suggested, the provision in our Constitution, it would seem, should be construed to embrace similar cases only, except, perhaps, those offences [offenses] which arise from an abuse of the same constitutional provision-that provision must be guarded with the utmost care or it will become intolerable.

"I do not think the circumstance of the case before me are of such grave import, or the offence [offense] itself of such high grade as to justify the requisition desired. The power given by the Constitution ought not to be cheapened, nor applied to trifling offences [offenses], nor indeed to any that was not originally contemplated."

For the reasons stated in Mr. Spencer's opinion the Governor of New York refused to make the requisition upon the Governor of Illinois. The case certainly came within the letter of the law; but not within its spirit and meaning,-so with the affidavit of Gov. Boggs, when he swears that Smith had fled from justice, it may come within the letter of the Constitution; but does it come within its spirit and meaning? does it show that Smith was in Missouri at the time of the commission of the crime and that he fled from that State to evade being brought to justice for that Crime? or does it refer to the

flight of Smith and the Mormons from Missouri some years since?

I will refer to one more case of a similar nature. Lord Campbell, formerly Attorney General of England, in a recent debate in Parliament upon the subject of the Creole, made the following remarks: "To show how cautious States should be in making such concessions one to the other reciprocally, he would mention a case that occurred when he was Attorney General. A treaty had been agreed upon between the State of New York and the province of Canada, by which the Government of each agreed reciprocally to deliver up the citizens or subjects of the other against whom Grand Juries had found a bill, and who had sought refuge within the territories of the other. It happened that a slave had escaped from his master, at New York, and had got to Canada. To facilitate his escape, he rode a horse of his master's for a part of the way; but turned him back on reaching the frontier. The authorities of New York well knew that England would not give up a runaway slave, and that as they could not claim him under the treaty; they therefore had a bill of indictment against him before a New York Grand Jury for stealing the horse, though it was clear the animus furandi was wanting. The Grand Jury, however, found a true bill against him for the felony, and he was claimed under the treaty. The Governor, under such circumstances, refused to give him up until he had consulted the Government in England. He (Lord Campbell) was consulted and gave it as his opinion that the man ought not to be given up, as the true bill where no felony had been committed, did not bring the case within the treaty. The man was not given up, and there the matter rested. This, he repeated, showed the necessity of the greatest caution where reciprocal rights of surrender were granted between States."

It is not to be presumed that the Executive of this State would, knowingly, lend his aid in dragging one of our citizens, who is not a fugitive from justice, into a foreign State, for trial. The Governor has, undoubtedly, been misled by the evasive affidavit which accompanied the requisition. I would advise that Mr. Smith procure respectable and sufficient affidavits to prove, beyond all question that he was in this State, and not in Missouri, at the time the crime, with which he is charged, was committed, and, upon these affidavits, apply to the Governor to countermand the warrant he has issued for his arrest. If he should refuse so to do, I am clearly of the opinion that upon the above state of facts, the Supreme Court will discharge him upon Habeas Corpus.

Respectfully you obedient servant, JUSTIN BUTTERFIELD.