Circuit Court of the U. States for the District of Illinois

December Term A. D. 1842

Before the Honorable NATHANIEL POPE. Presiding Judge.

} J. Butterfield and B. S Edwards,

Ex-parte Joseph Smith, } Counsel for Smith.

on Habeas Corpus. } J. Lamborn, Attorney Gen'l for the

} State of Illinois.

This case came before the Court upon a return to a writ of Habeas Corpus, which was issued by this court on the 31st of December, 1842, upon a petition for a habeas corpus on the relation of Joseph Smith, setting forth that he was arrested and in custody of William F. Elkin, sheriff of Songamon [Sangamon] county, upon a warrant issued by the Governor of the State of Illinois, upon the requisition of the Governor of the State of Missouri, demanding him to be delivered up to the Governor of Missouri, as a fugitive from justice; that his arrest as aforesaid was under color of a law of the United States, and was without the authority of law in this, that he was not a fugitive from justice, nor had he fled from the State of Missouri.

Afterwards on the same day, the Sheriff of Sangamon county returned upon the said Habeas corpus, that he detained the said Joseph Smith in custody by virtue of a warrant issued by the Governor of the State of Illinois upon the requisition of the Governor of the State of Missouri, made on the affidavit of L. W. Boggs,-copies of the said affidavit, requisition and warrant were annexed to the said return in the words and figures following:-

"State of Missouri, County of Jackson} SS. This day personally appeared before me, Samuel Weston, a Justice of the Peace within and for the County of Jackson, the subscriber, Lilburn W. Boggs, who being duly sworn, doth depose and say, that on the night of the 6th day of May 1842, while sitting in his dwelling in the town of Independendence [Independence], in the County of Jackson, he was shot with intent to kill, and that his life was despaired 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 [accessory] before the fact of the intended murder; and that the said Joseph Smith is a citizen or resident of the State of Illinois; and the said deponent hereby applies to the Governor of the State of Missouri to make a demand on the Governor of the State of Illinois, to deliver the said Joseph Smith, commonly called the Mormon Prophet, to some person authorized to receive and convey him to the State and county aforesaid, there to be dealt with according to law.

LILBURN W. BOGGS.

Sworn to and subscribed before me, this 20th day of July, 1842.

SAMUEL WESTON, J. P."

"The Governor of the State of Missouri,

To the Governor of the State of Illinois,

GREETING.

Whereas it appears by the annexed document which is hereby certified to be authentic, that one Joseph Smith is a fugitive from justice, charged with being accessary [accessory] before the fact to an assault with intent to kill, made by one O. P Rockwell, on Lilburn W. Boggs, in this State, and it is represented to the Executive department of this State, has fled to the State of Illinois:

Now, therefore, I, Thomas Reynolds, Governor of the said State of Missouri, by virtue of the authority in me vested by the Constitution and laws of the United States, do by these presents demand the surrender and delivery of the said Joseph Smith to Edward R. Ford, who is hereby appointed as the agent to receive the said Joseph Smith on the part of the State.

In Testimony," &c.

"The people of the State of Illinois, to the

Sheriff of Sangamon County, GREETING:

"Whereas, it has been made known to me by the Executive authority of the State of Missouri, that one Joseph Smith, stands charged by the affidavit of one Lilburn W. BOGGS, made on the 20th day of July, 1842, at the county of Jackson, in the State of Missouri, before Samuel Weston, a Justice of the Peace, within and for the county of Jackson aforesaid, with being accessary [accessory] before the fact to an assault with an intent to kill, made by one O. P. Rockwell, on Lilburn W. Boggs, on the night of the 6th day of May, 1842, at the county of Jackson, in said State of Missouri, and that the said Joseph Smith had fled from the justice of said State, and taken refuge in the State of Illinois:

Now, therefore, I, Thomas Ford, Governor of the State of Illinois, pursuant to the Constitution and laws of the United States, and of this State, do hereby command you to arrest and apprehend the said Joseph Smith, if he be found within the limits of the State aforesaid,

and cause him to be safely kept and delivered to the custody of Edward R Ford, who has been duly constituted the agent of the said State of Missouri, to receive said fugitive from the justice of said State, he paying all fees and charges for the arrest and apprehension of said Joseph Smith, and made due return to the Executive Department of this State, the manner in which this writ may be executed.

"In testimony whereof," &c.

The case was set for hearing on the 4th day of January. 1843, on which day Josiah Lamborn, Attorney General of the State of Illinois, appeared, and moved to dismiss the proceedings, and filed the following objection to the jurisdiction of the Court, viz:

"1st. The arrest and detention of Smith was not under or by color of authority of the United States, or of any officers of the United States, but under and by color of authority of the State of Illinois, by the officers of Illinois.

2d. When a fugitive from justice is arrested by authority of the Governor of any State, upon the requisition of the Governor of another State, the courts of justice, neither State or Federal, have any authority or jurisdiction to enquire [inquire] into any facts behind the writ."

The counsel of the said Joseph Smith then offered to read in evidence affidavits of several persons, showing conclusively that the said Joseph Smith was at Nauvoo, in the County of Hancock and State of Illinois, on the whole of the 6th and 7th days of May, in the year 1842, and on the evenings of those days more than three hundred miles distant from Jackson County, in the State of Missouri, where it is alleged that the said Boggs was shot, and that he had not been in the State of Missouri at any time between the 10th day of February and the 1st day of July, 1842, the said persons having been with him during the whole of that period.-That on the 6th day of May aforesaid, he attended an officer's drill at Nauvoo aforesaid, in the presence of a large number of people, and on the 7th day of May aforesaid he reviewed the Nauvoo Legion in presence of many thousand people.

The reading of these affidavits was objected to by the Attorney General of the State of Illinois, on the ground that it was not competent for Smith to impeach or contradict the return to the Habeas Corpus. It was contended by the counsel of the said Smith, 1st, That he had a right to prove that the return was untrue. 2d, That the said affidavits did not contradict the said return, as there was no averment under oath in said return that the said Smith was in Missouri at the time of the commission of the alleged crime or had fled from the justice of that State, The Court decided that the said affidavits should be read in evidence, subject to all objections; and they were read accordingly.

The cause was argued by J. Butterfield and B. S. Edwards, for Smith, and by Josiah Lamborn, Attorney General of the State of Illinois, contra.

J. Butterfield, counsel for Smith, made the following points:-

1. This court has jurisdiction.

The requisition purports on its face to be made, and the warrant to be issued, under the Constitution and laws of the United States, regulating the surrender of fugitives form justice.-2d sec. 4th article Const. U. S.-last sec, of the act of Congress of 12th Feb. 1793.

When a person's rights are invaded under a law of the United States he has no remedy except in the courts of the United States.-2d sec. 3d article Const. U. S.-12th Wend. 325.-16 Peters 543.

The whole power in relation to the delivering up of fugitives from justice and labor, has been delegated to the United States, and Congress have regulated the manner and form in which it shall be exercised. The power is exclusive. The State Legislatures have no right to interfere, and if they do, their acts are void.-2d vol. laws U. S. 331.-16 Peters 617-18, 623.-4th Wheaton's Rep. 122, 193-12, Wend. 312.

All courts of the United States are authorized to issue writs of Habeas Corpus when the prisoner is confined under or by color of authority of the United States.-Act of Congress of Sept. 24th. 1789. sec. 14. 2d condensed 33.-3d Cranch 447. 3d Peters 193.

2. The return to the Habeas Corpus is not certain and sufficient to warrant the arrest and transportation of Smith.

In all cases on Habeas Corpus previous to indictment, the court will look into the depositions before the Magistrate, and though the commitment be full and in form, yet if the testimony prove no crime, the court will discharge Ex-parte.-Taylor 5th, Cowen 50.

The affidavit of Boggs does not show that Smith was charged with any crime committed by him in Missouri, nor that he was fugitive from justice.

If the commitment be for a matter for which by law the prisoner is not liable to be punished, the court must discharge him.-3. Bac. 434.

The Executive of this State has no jurisdiction over the person of Smith to transport him

to Missouri, unless he has fled from that State.

3. The prisoner has a right to prove facts not repugnant to the return, and even to go behind the return and contradict it, unless committed under a judgment of a court of competent jurisdiction.-3d Bacon 435, 438.-3d Peters 202.-Gale's Rev. Laws of Ills. 323.

The testimony introduced by Smith at the hearing, showing conclusively that he was not a fugitive from justice, is not repugnant to the return.

J. Lamborn, Attorney General of the State of Illinois, in support of the points made by him, cited 2d Condensed Rep. 37; Gordon's Digest, 73; Gale's Statutes of Illinois 318; Conkling 85; 9th Wendall 212.

And afterwards, on the 5th day of January 1843, Judge POPE delivered the following