Chapter XII (2)

Boggs, in his affidavit, does not call Smith a _fugitive from
justice_, nor does he state a fact from which the governor had a
right to infer it, neither does the name of O. P. Rockwell appear
in the affidavit, nor does Boggs say Smith _fled_. Yet the governor
says he _has fled_ to the state of Illinois. But Boggs only says he
is a _citizen_ or _resident_ of the state of Illinois. The governor
of Illinois responding to the demand of the executive of Missouri
for the arrest of Smith, issues his warrant for the arrest of
Smith, reciting that "whereas Joseph Smith stands charged by the
affidavit of Lilburn W. Boggs with being accessory before the fact
to an assault, with intent to kill, made by one O. P. Rockwell, on
Lilburn W. Boggs, on the night or the 6th day of May, 1842, at the
county of Jackson, in said state of Missouri; and that the said
Joseph Smith has fled from the justice of said state, and taken
refuge in the state of Illinois."

Those facts do not appear by the affidavit of Boggs. On the
contrary, it does not assert that Smith was accessory to O. P.
Rockwell, nor that he had fled from the justice of the state of
Missouri, and taken refuge in the state of Illinois.

The court can alone regard the facts set forth in the affidavit
of Boggs as having any legal existence. The mis-recitals and
over-statements in the requisition and warrant are not supported
by oath, and cannot be received as evidence to deprive a citizen
of his liberty and transport him to a foreign state for trial. For
these reasons Smith must be discharged.

At the request of J. Butterfield, counsel for Smith, it is proper
to state, in justice to the present executive of the state of
Illinois, Governor Ford, that it was admitted on the argument that
the warrant which originally issued upon the said requisition was
issued by his predecessor; that when Smith came to Springfield to
surrender himself up upon that warrant, it was in the hands of the
person to whom it had been issued at Quincy, in this state; and
that the present warrant which is a copy of the former one, was
issued at the request of Smith, to enable him to test its legality
by writ of habeas corpus.

Let an order be entered that Smith be discharged from his arrest.

[Sidenote: The Prophet's Hour with Judge Pope.]

At the close I arose, and bowed to the court, which adjourned to ten o'clock tomorrow. I accepted an invitation to see Judge Pope in his room, and spent an hour in conversation with his honor, in which I explained to him that I did not profess to be a prophet any more than every man ought {232} to who professes to be a preacher of righteousness; and that the testimony of Jesus is the spirit of prophecy; and gave the judge a brief but general view of my principles. Esquire Butterfield asked me "to prophesy how many inhabitants would come to Nauvoo." I said, I will not tell how many inhabitants will come to Nauvoo; but when I went to Commerce, I told the people I would build up a city, and the old inhabitants replied "We will be damned if you can." So I prophesied that I would build up a city, and the inhabitants prophesied that I could not; and we have now about 12,000 inhabitants. I will prophesy that we will build up a great city; for we have the stakes and have only to fill up the interstices.

The judge was very attentive and agreeable, and requested of me that my secretary, Dr. Richards, would furnish him a copy of his decision for the press. Dined at General Adams', and in the afternoon visited Mr. Butterfield with Brother Clayton. In the evening visited Mr. Groves, and lodged at General Adams' with Dr. Richards.

[Sidenote: The Advice of Governor Ford.]

_Friday, 6_.--In the morning went to see Judge Pope with Dr. Richards, who presented the judge with a report of his decision, called on Mr. Butterfield, and gave him two notes of two hundred and thirty dollars each, having paid him forty dollars as fee for his service in my suit. I took certified copies of the doings of the court, and waited on Governor Ford for his certificate thereto, after which he offered me a little advice, which was, that I "should refrain from all political electioneering." I told him that I had always acted upon that principle, and proved it by General Law and Dr. Richards: and that the "Mormons" were driven to union in their elections by persecution, and not by my influence: and that the "Mormons" acted on the most perfect principle of liberty in all their movements.

[Sidenote: Sundry Conversations.]

During the day I had considerable conversation in the {233} court room with the lawyers and others, on various topics and particularly on religion. Judge Pope's son wished me well, and hoped I would not be persecuted any more, and I blessed him. Mr. Butterfield said I must deposit my discharge and all my papers in the archives of the Temple when it is completed. My discharge, here referred to, commenced with my petition for habeas corpus and closed with the certificate of Thomas Ford, governor of Illinois, including all the documents relating to my trial on separate sheets of paper, attached by a blue ribbon, and secured by the seal of the court, and reads as follows:

_Official Papers Relating to the Prophet's Trial at Springfield, Ill., Before Judge Pope_.

I.

Pleas before the Circuit Court of the United States for the
district of Illinois, at the December term, A. D., 1842, December
31st.

In the matter of Joseph Smith: Petition for habeas corpus.

Justin Butterfield, 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 United States for the
district of Illinois:

The petition of Joseph Smith respectfully showeth that he has been
arrested, and is detained in custody by William F. Elkin, sheriff
of Sangamon county, upon a warrant issued by the governor of the
state Illinois, upon the requisition of the governor of Missouri,
as a fugitive from justice, a copy of the said warrant and the
requisition and affidavit upon which the same was issued, is hereto
annexed. And your petitioner is also arrested by Wilson Law, and
by him also held and detained in custody, (jointly with the said
sheriff of Sangamon county) upon a proclamation issued by the
governor of the state of Illinois, 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 William
F. Elkin and Wilson Law, 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 these
premises. Your petitioner states that he is arrested and detained
as aforesaid under color of a law of the United {234} States, 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
Missouri. And your petitioner, as in duty bound, will ever pray.

JOSEPH SMITH.

II.

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 as authentic, that one Joseph Smith is a fugitive from
justice, charged with being 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 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 this state.

In testimony whereof, I, governor of the state of Missouri, have
hereunto set my hand and caused to be affixed the great seal of the
state of Missouri.

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
Independence of the United States, the sixty-seventh, and of this
state the twenty-third.

By the Governor,

[Seal] THOMAS REYNOLDS.

Jas. L. Minor, Secretary of State.

III.

#_Affidavit of Lilburn W. Boggs_.

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 sixth day of May, 1842, while sitting in his
dwelling, in the town of 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 {235} 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
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.

IV.

#_Certificate of Secretary of State of Illinois_.

STATE OF ILLINOIS,

Office of Secretary of State.

I, Lyman Trumbull, secretary of state, of the state of Illinois, do
hereby certify the foregoing to be a true and perfect copy of the
demand of the governor of the state of Missouri upon the governor
of this state, for the apprehension and surrender of Joseph
Smith, who is charged with being a fugitive from justice, and the
affidavit of Lilburn W. Boggs attached to the same, which are on
file in this office.

In testimony whereof I have hereunto set my hand, and affixed
the great seal of state at Springfield, this thirty-first day of
December, A. D., one thousand eight hundred and forty-two.

[Seal.] LYMAN TRUMBULL,

Secretary of State.

December 31, 1842.

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.

L. TRUMBULL,

Secretary of State.

December 31, 1842.

V.

#_Governor Ford's Order for the Prophet's Arrest_.

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
{236} 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 accessory before the fact
to an assault with intent to kill, made by one O. P. Rockwell on
Lilburn W. Boggs, on the night of the sixth of May, A.D. 1842, at
the county of Jackson, in said state of Missouri; and that the said
Joseph Smith has 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 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 make due return to the
executive department of this state, the manner in which the writ
may be executed.

In testimony whereof, I have hereunto set my hand and caused the
great seal of the state to be affixed.

Done at the city of Springfield, this 31st day of December, in the
year of our Lord one thousand eight hundred and forty-two; and of
the Independence of the United States, the sixty-seventh.

By the Governor,

[Seal.] THOMAS FORD.

LYMAN TRUMBULL, Secretary of State.

VI.

#_Governor Carlin's Proclamation_.

EXECUTIVE DEPARTMENT, ILLINOIS,

September 20, 1842.

Whereas a requisition has been made upon me, as the executive of
this state, by the governor of the state of Missouri, for the
apprehension and surrender of O. P. Rockwell, who is charged with
the crime of shooting Lilburn W. Boggs, with intent to kill, in the
county of Jackson and state of Missouri, on the night of the sixth
day of May, A. D., 1842:

And whereas a demand has also been made by the governor of Missouri
upon me for the apprehension and surrender of Joseph Smith,
commonly called the Mormon Prophet, who is charged with the crime
of being accessory to the shooting of said Boggs at the time and
place aforesaid, with intent to kill:

{237} And whereas, in obedience to the Constitution and laws of
the United States, and of this state, executive warrants have been
issued, and the said Rockwell and Smith arrested as fugitives from
justice from the state of Missouri; and whereas the said Rockwell
and Smith resisted the laws by refusing to go with the officers who
had them in custody as fugitives from justice, and escaped from the
custody of said officers:

Now, therefore, I, Thomas Carlin, governor of the state of
Illinois, in conformity to an act entitled "An Act concerning
fugitives from justice," approved January 6, 1827, do offer a
reward of two hundred dollars to any person or persons for the
apprehension and delivery of each or either of the above-named
fugitives from justice, viz., O. P. Rockwell and Joseph Smith,
to the custody of James M. Pitman and Thomas C. King, or to the
sheriff of Adams county, at the city of Quincy.

In testimony whereof, I have hereunto set my hand, and caused the
great seal of state to be affixed, the day and the date above
mentioned.

By the Governor,

[Seal.] THOMAS CARLIN.

LYMAN TRUMBULL, Secretary of State.

The _Fulton Advocate_, _Quincy Herald_, _Galena Sentinel_, and
_Rockford Pilot_, will copy the above for two weeks.

VII.

#_Petition of the Prophet for Writ of Habeas Corpus_.

In the United States' Circuit Court, District of Illinois, of
December Term, 1842, December 31st day.

In the matter of Joseph Smith, on petition of Habeas Corpus.

And now at this day comes the said Joseph Smith by Justin
Butterfield, his attorney, and presents to the court his petition,
setting forth that he has been arrested and is detained in
custody by William F. Elkin, Sheriff of Sangamon county, upon a
warrant issued by the governor of the state of Illinois, upon
the requisition of the governor of Missouri, as a fugitive from
justice; and that he is also arrested by Wilson Law, and by him
also held and detained in custody (jointly with the sheriff of
Sangamon county), upon a proclamation issued by the governor
of the state of Illinois; that he is arrested and detained as
aforesaid, under color of a law of the United States; 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
Missouri; and praying that a writ of habeas corpus may be issued
by this court, directed to the said William F. Elkin and Wilson
Law, commanding them forthwith and without {238} 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.

And thereupon a writ of habeas corpus was issued in the words and
figures following,--to wit:

VIII.

#_Writ of Habeas Corpus_.

The United States of America to William F. Elkin, Sheriff of
Sangamon County, State of Illinois, and Wilson Law, greeting.

We command you that you do forthwith, without excuse or delay,
bring or cause to be brought, before the Circuit Court of the
United States for the district of Illinois, at the District
Court-room, in the city of Springfield, 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 and 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
United States at Springfield, in the district of Illinois, this
31st day of December, A. D., 1842, and of our Independence the
sixty-seventh year.

[Seal.] JAMES F. OWINGS, Clerk.

IX.

#_Returns on the Above Writ of Habeas Corpus_.

And afterwards, on the said 31st day of December aforesaid, the
said writ of habeas corpus was returned, with returns endorsed
thereon in the words and figures following:--

I, William F. Elkin, sheriff of Sangamon county, do hereby return
the within writ, that the within named Joseph Smith is in my
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, and a copy of the
said warrant, requisition, and affidavit is hereunto annexed, dated
December 31, 1842.

WM. F. ELKIN,

Sheriff S. C., Illinois.

I, Wilson Law, do return to the within writ that the said Joseph
{239} 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 governor of
the state of Illinois; a copy whereof is hereunto annexed, dated
December 31, 1842.

WILSON LAW.

The return to the within writ of habeas corpus appears by the
foregoing returns and the schedule hereunto annexed, and the body
of the said Joseph Smith is in court.

WM. PRENTISS,

U.S. Marshal, district of Illinois.

December 31, 1842.

IX.

#_Orders of the Court_.

And afterwards, to wit, on the same day aforesaid, upon the return
of the said writ of habeas corpus, the following orders were made
in this cause:--

In the matter of Joseph Smith, on Habeas Corpus.

William F. Elkin and Wilson Law 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 Justin Butterfield, his
attorney, it is ordered that the said Joseph Smith be admitted to
bail; and thereupon came the said Joseph Smith in proper person,
principal, and James Adams and Wilson Law, sureties, and severally
acknowledge themselves to owe and be indebted to the United States
of America, 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 United States for the district of
Illinois, 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
governor of Illinois and the attorney-general be informed by the
marshal that Joseph Smith, arrested on a warrant issued for his
apprehension by the governor of Illinois, 31st December, 1842, is
before this court on habeas corpus, and that the case will be heard
on Monday, January 2nd, 1843, and that a copy of this order be
handed to each of those officers.

It is ordered that the governor of Illinois and the
attorney-general be informed by the marshal that Joseph Smith,
arrested on a warrant issued for his apprehension by the governor
of Illinois, 31st December, 1842, is before this court on a writ
of habeas corpus, and that the case will be heard on Monday, 2nd
January, 1843, and that a copy of this order be handed to each of
those officers.

{240} UNITED STATES OF AMERICA,

District of Illinois.

I, James F. Owings, clerk of the Circuit Court of the United States
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 Springfield, this 31st day of December,
A. D., 1842.

[Seal.] JAMES F. OWINGS, Clerk.

Delivered a copy of the within order to Thomas Ford, governor, and
Josiah Lamborn, attorney-general of the state of Illinois, December
31st, 1842.

WM. PRENTISS, Marshal.

In the matter of Joseph Smith on habeas corpus; copy of order,
marshal's fees for serving on two, $4.00; returning twelve, $4.12.

X.

#_Denials of the Prophet_.

And afterwards, to-wit, on the 2nd day of January, A. D. 1843,
Justin Butterfield, attorney of said petitioner, filed the written
denials of the said petitioner of the matters and things set forth,
in the return to the said writ of habeas corpus, which denial is in
the words and figures following,--viz.:

Circuit Court of the United States,

District of Illinois,

In the matter of Joseph Smith upon habeas corpus.

Joseph Smith, being brought up on habeas corpus before this court,
comes and denies the matter set forth in the return to the same in
this, that he is not a fugitive from the justice of the state of
Missouri; but alleges and is ready to prove, that he was not in
the state of Missouri at the time of the commission of the alleged
crime set forth in the affidavit of L. W. Boggs, nor had he been in
said state for more than three years previous to that time, nor has
he been in said state since that time; but, on the contrary, at the
time the said alleged assault was made upon the said Boggs, as set
forth in the affidavit the said Smith was at Nauvoo, in the county
of Hancock, in the state of Illinois, and that he has not fled from
the justice of the state of Missouri, and taken refuge in the state
of Illinois, as is most untruly stated in the warrant upon which
he is arrested, and that the matter set forth in the requisition
{241} of the governor of Missouri, and in the said warrant, are not
supported by oath.

JOSEPH SMITH.

State of Illinois, ss.

Joseph Smith being duly sworn, saith that the matter and things set
forth in the foregoing statement are true.

JOSEPH SMITH.

Sworn and subscribed to before me, this second day of January, 1843.

JAMES F. OWINGS, Clerk.

XI.

#_Procedure of the Court_.

And afterwards, to-wit, on the same day and year last aforesaid,
the following order was made in this cause,--viz.:

In the matter of Joseph Smith on habeas corpus.

At this day comes the said Joseph Smith, and, by Justin
Butterfield, his attorney, files his written denial, verified by
affidavit, of the matters and things set forth in the return to
the writ of habeas corpus issued in this cause; and at the same
time also comes Josiah Lamborn, attorney-general of the state
of Illinois, and on his motion it is ordered that this cause be
continued for hearing until Wednesday morning next.

And afterwards, to-wit, on the fourth day of January, 1843, Josiah
Lamborn, attorney-general of the state of Illinois, filed his
objections to the jurisdiction of this court in this cause, and
moved to dismiss the proceedings herein, which said motion and
objections are in the words and figures following--viz.:

United States of America,

In the Circuit Court of the State of Illinois.

In the matter of Joseph Smith.

J. Lamborn, attorney-general of Illinois, moves the court to
dismiss the proceedings herein, for the reason that this court has
no jurisdiction.

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

2nd. When a fugitive from justice is arrested by authority of the
government of any state, upon the requisition of any other governor
of another state, the courts of justice, neither state nor federal
have any authority or jurisdiction to inquire into any facts behind
the writ.

J. LAMBORN,

Attorney-General of Illinois.

{242} And afterwards, to-wit, on the same day and year last
aforesaid, the following order was made in this cause,--viz.:

In the matter of Joseph Smith, on habeas corpus.

And now, again, at this day, comes the said Joseph Smith, by Justin
Butterfield, his attorney; and at the same time also comes Josiah
Lamborn, attorney-general of the state of Illinois, and enters his
motion to dismiss the proceedings herein, for want of jurisdiction;
and the court having heard the allegations and proofs herein, and
the argument of counsel upon the same, and also upon the aforesaid
motion, and not being sufficiently advised took time, &c.

XII.

#_Affidavits of Sundry Witnesses_.

And afterwards, to-wit, on the same day and year aforesaid, Justin
Butterfield, attorney for said petitioner, filed the affidavits, of
which the following are copies:

Circuit Court of the United States,

District of Illinois.

In the matter of Joseph Smith, upon habeas corpus.

District of Illinois, ss.

Stephen A. Douglas, James H. Ralston, Almeron Wheat, J. B.
Backenstos, being duly sworn, each for himself, says that they were
at Nauvoo in the county of Hancock, in this state 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.

J. B. BACKENSTOS,

STEPHEN A. DOUGLAS.

Sworn to and subscribed in open court, this 4th day of January,
1843.

JAMES F. OWINGS, Clerk.

Circuit Court of the United States, District of Illinois.

In the matter of Joseph Smith upon habeas corpus.

District of Illinois:--Wilson Law, Henry G. Sherwood, Theodore
Turley, Shadrach Roundy, Willard Richards, William Clayton, and
Hyrum Smith, being duly sworn, say that they know that Joseph Smith
was in Nauvoo, in the county or Hancock, in the state of Illinois,
during the whole of the sixth and seventh days of May last; that
on the sixth day of May, aforesaid, the said Smith attended an
officer-drill at Nauvoo, from ten o'clock in the forenoon to about
four o'clock in the afternoon, at which drill the said Joseph
Smith was present. And {243} these deponents, Hyrum Smith, Willard
Richards, Henry G. Sherwood, John Taylor, and William Clayton,
were with the said Smith at Nauvoo aforesaid, during the evening
of the sixth day of May last, and sat with the said Joseph Smith
in Nauvoo Lodge from six until nine o'clock of said evening. And
these deponents, Hyrum Smith, Willard Richards, and William Marks,
were with the said Smith at his dwelling house, in Nauvoo, on and
during the evening of the fifth day of May last, and conversed
with him; and all of the deponents aforesaid do say that, on the
seventh day of May aforesaid, the said Smith reviewed the Nauvoo
Legion, and was present with the said Legion all that day, in the
presence of many thousand people, and it would have been impossible
for the said Joseph Smith to have been at any place in the state
of Missouri at any time on or between the sixth or seventh days
of May aforesaid. And these deponents, Willard Richards, William
Clayton, Hyrum Smith, and Lorin Walker, say that they have seen and
conversed with the said Smith at Nauvoo, aforesaid, daily, from
the tenth of February last, until the first day of July last, and
know that he has not been absent from said city of Nauvoo, at any
time during that time, long enough to have been in the state of
Missouri; that Jackson county in the state of Missouri is about
three hundred miles from Nauvoo.

WILSON LAW,

HENRY G. SHERWOOD,

THEODORE TURLEY,

SHADRACH ROUNDY,

WILLARD RICHARDS,

WILLIAM CLAYTON,

JOHN TAYLOR,

WILLIAM MARKS,

LORIN WALKER.

Sworn to and subscribed in open court, this 4th January, 1843.

OWINGS, Clerk.

XIII.

#_Denial of the Court to Dismiss the Case_.

And afterwards, to wit on the 5th day of January, 1843, the
following order was made in this cause,--viz.:

In the matter of Joseph Smith on habeas corpus.

And now, at this day, comes again the said Joseph Smith, by Justin
Butterfield, his attorney, and at the same time also comes Josiah
Lamborn, attorney-general of the state of Illinois; and the court
being now sufficiently advised of and concerning the motion
heretofore entered to dismiss the proceedings in this cause, it is
considered that {244} 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
habeas corpus issued herein, and being now sufficiently 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 habeas corpus are wholly insufficient in law to authorize the
arrest and detention of the said Joseph Smith; and it is further
considered, ordered, and adjudged by the court that the said Joseph
Smith be fully released and discharged from the custody of William
F. Elkin, sheriff of Sangamon county, under the warrant of the
governor of the state of Illinois, mentioned in the said return,
and also from the custody of Wilson Law, on the proclamation of the
said governor mentioned in the said return, and that he go hence
without delay.

United States of America

District of Illinois. ss.

I, James F. Owing, clerk of the United States Circuit Court for the
district of Illinois, 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 habeas
corpus, 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 Springfield, this sixth day of
January, A. D. 1843, and of our independence the 67th year.

[Seal] JAMES F. OWING, Clerk.

XIV.

#_Executive's Order of Release_.

I do hereby certify that I have inspected the foregoing record, and
there is now no further cause for arresting or detaining Joseph
Smith, therein named, by virtue of any proclamation or executive
warrant heretofore issued by the governor of this state; and that
since the judgment of the Circuit Court of the United States for
the district of Illinois, all such proclamations are inoperative
and void.

Witness my hand and seal, at Springfield, this 6th day of January,
1843.

[Seal] THOMAS FORD,

Governor of Illinois.

[Sidenote: The Prophet's Comment on Judge Pope's Opinion.]

The opinion of Judge Pope as recorded in this history, was copied from the _Sangamon Journal_, and believed to be Judge Pope's opinion, as corrected and altered by him from the report furnished him by my secretary.

{245} In the judge's opinion on the bench, he remarked like this:--"Were it my prerogative to impeach Congress for any one thing, it would be for granting power for the transportation of fugitives on affidavit, and not on indictment alone." He also passed several severe strictures on the actions of different governors and others concerned in my case, but which I suppose he thought proper to omit in his printed copy.

I received many invitations to visit distinguished gentlemen in Springfield, which time would not permit me to comply with; also a ticket from the manager to attend the theatre this evening; but the play was prevented by the rain.

{246}