History of the Church of Jesus Christ of Latter-day Saints, Volume 5

by Church of Jesus Christ of Latter-day Saints; Jr. Joseph Smith

THE MORMONS.

ARLINGTON HOUSE, October 16, 1841.

General J. G. Bennett:

SIR:—Some time since I addressed a letter to Joseph Smith, the Mormon Prophet, in answer to a letter of his introducing to "my kind attention," a friend of his from the holy city of Nauvoo.

In this letter I expressed my regret that the quarrel between him and John C. Bennett should have at all found its way to the public eye, this being the sole cause of placing him in his present awkward situation. I likewise commiserated with him in his affliction, and signed myself at the conclusion of my letter, as his friend, which I really am, and the friend of all good Mormons, as well as other good men.

Why should I not be Joseph Smith's friend? He has done nothing to injure me, nor do I believe he has done anything to injure ex-Governor Boggs, of Missouri. The governor, no doubt, under strong feelings, may have thought and believed that Smith had preconcerted the plan for his assassination; but there is no legal evidence whatever of that fact—none by which an unprejudiced jury would convict any man; yet to send this man into Missouri, under the present requisition, would be an act of great injustice, as his ruin would be certain.

How could any man, against whom there is a bitter religious prejudice escape ruin, being in the circumstances of Smith? Look at the history of past ages—see the force of fanaticism and bigotry in bringing to the stake some of the best of men; and in all these cases the persecutors had their pretexts, as well as in the case of the Mormon chief. Nothing follows its victim with such deadly aim as religious zeal, and therefore nothing should be so much guarded against by the civil power.

Smith, I conceive, has just as good a right to establish a church, if he can do it, as Luther, Calvin, Wesley, Fox, or even King Henry the Eighth. All these chiefs in religion had their opponents, and their people their persecutors. Henry the Eighth was excommunicated, body and bones, soul and all, by his holiness, the Pope; still the church of England has lived as well as all the other sects.

Just so it will be with the Mormons. They may kill one prophet and confine in chains half his followers, but another will take his place, and the Mormons will still go ahead. One of their Elders said to me, when conversing on this subject, that they were like a mustard plant,—"If you don't disturb it, the seed will fall and multiply; and if you kick it about, you only give the seed more soil, and it will multiply the more."

Undertake to convince them that they are wrong, and that Smith is an impostor, and the answer is, laying the hand on the heart, "I know in my own soul that it is true, and want no better evidence: I feel happy in my faith; and why should I be disturbed?"

Now, I cannot see but what this is the sentiment that governs all religiously disposed persons, their object being heaven and happiness, no matter what their church and creed. They, therefore, cannot be put down while the Constitution of the United States offers them protection in common with all other sects, and while they believe that their eternal salvation is at stake. From what I know of the people, I fully believe that all the real, sincere Mormons would die sooner than abandon their faith and their religion.

General John C. Bennett has stated that to conquer the Mormon Legion it would require five to one against them, all things taken into consideration, and that they will die to a man sooner than give up their Prophet.

Now, is the arrest of this man worth such a sacrifice of life as must necessarily follow an open war with his people? The loss of from one to three thousand lives will, no doubt, follow in an attempt to accomplish an object not in the end worth a button. Persecute them, and you are sure to multiply them. This is fully proved since the Missouri persecution, as since that affair they have increased one hundred fold.

It is the best policy, both of Missouri and Illinois, to let them alone; for if they are drove farther west, they may set up an independent government, under which they can worship the Almighty as may suit their taste. Indeed, I would recommend to the Prophet to pull up stakes and take possession of the Oregon territory in his own right, and establish an independent empire. In one hundred years from this time, no nation on earth could conquer such a people. Let not the history of David be forgotten. If the Prophet Joseph would do this, millions would flock to his standard and join his cause. He could then make his own laws by the voice of revelation, and have them executed like the act of one man.

With respect to myself, I would just repeat that I am the Prophet's friend, and the friend of his people, merely from sympathy, as my arm has ever been lifted on the side of the persecuted and oppressed. I have never in my life followed the fat ox, nor bowed for a favor on my own account to mortal man. While I despise the purse-proud man, I am proud to the proud man, and humble to the humble; and where men were contending, have ever thrown myself on the weakest side.

By inserting this communication, it is presumed that no one will hold the Herald responsible for the sentiments it contains; yet I have no doubt that there are thousands of independent, liberal-minded men in this country who think as I do. Neither the Mormon Prophet nor his people can add anything to my fortune or reputation. I expect nothing from them; they are a poor and industrious people, and have nothing to give. I am influenced in my conduct towards them by a spirit of benevolence and mercy, and hope the governor and state of Illinois will act in the like manner. It is true I was commissioned in their Legion, through the instrumentality of their enemy, General John C. Bennett, an act entirely of their own, without my agency; but I was as much their friend before as since.

The Missouri persecution fixed my attention and commiseration on the people. It must be recollected, too, that the Mormon Prophet and his people are the most ardent friends and promoters of literature and science. These are elementary principles in their social system, and this certainly is contrary to everything like despotism.

I hope, therefore, and with great deference express that hope, that ex-Governor Boggs will withdraw his demand for the Prophet, and let those poor people rest in peace. Both he and Governor Carlin will feel much more at peace with themselves by quashing the whole proceedings.

Most respectfully,

Your humble servant,

JAMES ARLINGTON BENNETT.

Counselor at Law, &c.

By this I discover a spark of liberty burning in the bosom of the writer. May it continue to burn and burn, till it once more fires the whole land with its heavenly influence.

Thursday, 20.—Early this morning I arrived at home on a visit to my family. During the day I was visited by several of the brethren, who rejoiced to see me once more. Emma is still getting better, and is able to attend to a little business, having this day closed contract and received pay for a quarter section of land of Brother Job V. Barnum.

Justin Butterfield's Legal Opinion on the Efforts to Drag Joseph Smith into Missouri.

CHICAGO, October 20, 1842.

Sidney Rigdon, Esq.

DEAR SIR:—In answer to your favors of the 17th instant, 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 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 crimes."

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 persons, 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 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 section of our habeas corpus act, to introduce testimony, and show that the process upon which he is arrested was obtained by false 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 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 Governor 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 governor of that state of the governor 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, as an indictment had been found. Governor 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 he had fled from justice; and it was the right and 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 equal in point, and they proceed upon the ground that a 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 is a fugitive from that state, unless he has fled from the state to evade "justice," or, in other words, to evade being tried for the 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 government of this state has no 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 is expressly given to him by the Constitution of the United States. And what is that power? It only 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 the 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 and 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 authorizes the governor to deliver up; and that it would be an excess of jurisdiction on the part of the governor to deliver him 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 Governor 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 too 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 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 authorizes the delivery up of such persons, "who shall flee," upon the demand of the executive authority of the state from which they "fled." There must have been a "flight" in fact and in deed from the state where the 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 ^[A] 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 transportation to a foreign country upon the mere charge of an interested or partial witness.

[Footnote A: A judicial act outside of court and not recorded.—Century Dictionary.]

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 New York, in his reply to 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 regard 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 case 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 delivering 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 and Nathan Aldrich, for fraud in obtaining goods by false pretenses, and was requested to make a requisition upon the governor of Illinois to surrender them up as fugitives from justice.

Now, here was a 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.

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 offenses. These offenses are of the deepest grade of criminality, and robbers, murderers and incendiaries, and those enumerated as proper to be surrendered. Following the analogy thus suggested, the provisions in our Constitution, it would seem, should be construed to embrace similar cases only, except, perhaps, those 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 circumstances of the case before me are of such grave import, or the offense itself of such high grade, as to justify the requisition desired. The power given by the Constitution ought not to be cheapened or applied to trifling offenses, or 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 the spirit and meaning. So with the affidavit of Governor Boggs, when he swears that Smith has 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 in 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 the 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 your obedient servant,

JUSTIN BUTTERFIELD.

The foregoing letter of Mr. Butterfield (United States' attorney for the district of Illinois,) shows, in a very lucid manner, what our rights and privileges are, pertaining to the habeas corpus, and accords with the opinion of every intelligent man,—the opinions of ex-Governor Boggs, Governor Reynolds, of Missouri, and Governor Carlin, to the contrary, notwithstanding.

CHAPTER X.

TEMPLE AFFAIRS—THE PROPHET'S ADDRESS TO "NEWCOMERS"—CITY COUNCIL'S ACTIONS AS TO WRITS OF HABEAS CORPUS.

Friday, October 21, 1842.—This evening I returned, in company with John D. Parker, to Father Taylor's, judging it wisdom to keep out of the way of my enemies a while longer at least, although all is peace and quiet, and a prospect that my enemies will not trouble me much more at present.

Temporary Floor in the Temple.

Sunday, 23.—This day the Temple committee laid before the Saints the propriety and advantages of laying a temporary floor in the Temple, that the brethren might henceforth meet in the Temple to worship, instead of meeting in the Grove. This was my instructions, and the Saints seemed to rejoice at this privilege very much.

Monday, 24.—Printing office took fire, which was extinguished with difficulty.

Tuesday, 25.—Ship Emerald sailed from Liverpool with 250 Saints for New Orleans.

Friday, 28.—Soon after daylight this morning, I returned home again to visit my family. I found Emma worse; the remainder of the family well. In the afternoon I rode out into the city and took a little exercise. From the appearance of things abroad, we are encouraged to believe that my enemies will not trouble me much more at present.

This day the brethren finished laying the temporary floor, and seats in the Temple, and its appearance is truly pleasant and cheering. The exertions of the brethren during the past week to accomplish this thing are truly praiseworthy.

The Prophet at the Temple.

Saturday, 29.—About ten in the forenoon I rode up and viewed the Temple. I expressed my satisfaction at the arrangements, and was pleased with the progress made in the sacred edifice. After conversing with several of the brethren, and shaking hands with numbers who were very much rejoiced to see their Prophet again, I returned home; but soon afterwards went over to the store, where a number of brethren and sisters were assembled, who had arrived this morning from the neighborhood of New York, Long Island, &c. After Elders Taylor, Woodruff, and Samuel Bennett had addressed the brethren and sisters, I spoke to them at considerable length, showing them the proper course to pursue, and how to act in regard to making purchases of land, &c.

The Prophet's Advice to New-comers.

I showed them that it was generally in consequence of the brethren disregarding or disobeying counsel that they became dissatisfied and murmured; and many when they arrived here, were dissatisfied with the conduct of some of the Saints, because everything was not done perfectly right, and they get angry, and thus the devil gets advantage over them to destroy them. I told them I was but a man, and they must not expect me to be perfect; if they expected perfection from me, I should expect it from them; but if they would bear with my infirmities and the infirmities of the brethren, I would likewise bear with their infirmities.

I told them it was likely I would have again to hide up in the woods, but they must not be discouraged, but build up the city, the Temple, &c. When my enemies take away my rights, I will bear it and keep out of the way; but if they take away your rights, I will fight for you. I blessed them and departed.

Return of Dr. Richards to Nauvoo.

Dr. Willard Richards returned to Nauvoo with his family, having visited most of the churches in the Eastern States, and preached to them the necessity of building the Temple and gathering to this place, in obedience to the commandment of God to His people.

Sunday, 30.—The Saints met to worship on a temporary floor, in the Temple, the walls of which were about four feet high above the basement; and notwithstanding its size, it was well filled. It had been expected that I would address them, but I sent word that I was so sick that I could not meet with them; consequently Elder John Taylor delivered a discourse. In the evening I went to visit the sick, &c.

Monday, 31.—I rode out to my farm with my children, and did not return until after dark.

Accident to the Prophet's Carriage.

Tuesday, Nov. 1, 1842.—I rode with Emma to the Temple for the benefit of her health. She is rapidly gaining. In the afternoon went to see Dr. Willard Richards, who was very sick at Elder Woodruff's; afterwards, accompanied by my children and William Clayton, rode out towards the farm. When going down the hill, near Casper's the carriage got over-balanced and upset. I was thrown some distance from the carriage, and all three of the children almost under it. I arose and enquired if any of the children were killed; but upon examination, there was no one seriously hurt. Frederick G. Williams had his cheek bruised, which was the worst injury received.

It seemed miraculous how we escaped serious injury from this accident; and our escape could not be attributed to any other power than that of Divine Providence. I feel thankful to God for this instance of His kind and watchful care over His servant and family.

The carriage was so much broken, we left it, and putting the children in Brother Stoddard's buggy, returned. In the evening I rode to the Temple with two of my children.

Wednesday, 2.—Spent this forenoon in removing the books, desk, &c., from my store over to my house. In the afternoon rode out to my farm, and spent the time plowing, &c.

Thursday, 3.—Rode out with Emma to the Temple.

Friday, 4.—Rode out with Lorin Walker to examine his timber north of the city.

Return of Hyrum Smith and William Law.

Brothers Hyrum Smith and William Law returned from their mission to the East. They bring very good reports concerning the public feeling, and say that John C. Bennett's expose has done no hurt, but much good.

Return of Brigham Young, et. al.

President Brigham Young, Heber C. Kimball, George A. Smith and Amasa Lyman, of the Twelve, also returned from their missions, and brought a similar report. They had visited the conferences according to the notice which they had published on September 12th, and had also visited many of the principal places in the state, delivered addresses to the people, and found a friendly feeling in most cases.

Saturday, 5.—I tarried at home on account of the rain. I received a visit from some Indians, who were accompanied by a negro interpreter. They expressed great friendship for the Mormon people, and said they were their friends. After considerable conversation and partaking of victuals, they departed, evidently highly gratified with their visit.

I told Dr. Richards the Mississippi would be frozen over in less than a month, although the weather was then warm and pleasant.

Sunday, 6.—At home all day. My brother Hyrum preached. Afternoon received a visit from Dr. Willard Richards.

The Prophet's Consultation with Calvin A. Warren.

Monday, 7.—Spent the forenoon in council with Brother Hyrum Smith and some of the Twelve, and in giving instructions concerning the contemplated journey to Springfield on the 15th December next, and what course ought to be pursued in reference to the case of bankruptcy. In the afternoon Calvin A. Warren, Esq., arrived, and I called upon some of the Twelve and others to testify before Squire Warren what they knew in reference to the appointment of trustee-in-trust, &c., showing also from the records that I was authorized by the Church to purchase and hold property in the name of the Church, and that I had acted in all things according to the counsel given to me.

Post Office Affairs at Nauvoo.

Tuesday, 8.—This afternoon called upon Windsor P. Lyons and others to make affidavits concerning the frauds and irregularities practiced in the post office in Nauvoo. A petition was drawn and signed by many, and sent by Squire Warren to Judge Young, [U.S. senator from Illinois] with a request that the latter should present the same to the post-master general, and use his influence to have the present postmaster removed, and a new one appointed. I was recommended for the appointment. In the afternoon officiated in court as mayor at my house.

Wednesday, 9.—Paid E. Rhodes $436.93, it being the amount of three notes due for the north-west quarter of Sec. 9, 6 N. 8 W., and presided in city council, a special meeting to investigate the writ of habeas corpus.

Thursday, Friday, and Saturday, 10, 11, 12.—Presided at adjourned session of the city council at my house.

Sunday, 13.—I was at home through the day.

Letter of George D. Watt, Reporting Arrival of Emigrants.

SHIP SIDNEY, NEW ORLEANS, November 13, 1842.

DEAR BROTHER.—We have had a passage of fifty-six days—fine weather—with a kind captain and crew, who allowed us every reasonable privilege. There have been five deaths out of the company, and one sailor who fell from the yard arm and was killed. Brother Yates' eldest child, Sister Cannon, Brother Browne's child, and two children belonging to a man not in the Church.

We stuck upon the bar at the mouth of the river, thirty-four hours. About two hours after we got off, the Medford came on the bar, where she stuck thirty hours. We landed here on the 11th instant, and the Medford arrived today, 13th. She lies about ten yards from us. They have had two deaths. Upon the whole, a good passage.

We have taken one of the largest and best steamboats in this port. We pay two and a half dollars per head, and twenty-five cents per cwt. above the weight allowed each person, which is one hundred pounds. We are all going up together.

Yours truly,

GEORGE D. WATT.

Monday, 14.—Presided at city council, when was passed the following "Ordinance regulating the proceedings on writs of habeas corpus."

Writ of Habeas Corpus.

Sec. 1. Be it ordained by the city council of the city of Nauvoo, that if any person or persons shall be or stand committed or detained for any criminal or supposed criminal matter, it shall and may be lawful for him, her, or them to apply to the municipal court, when in session, or to the clerk thereof in vacation, for a writ of habeas corpus; which application shall be in writing and signed by the prisoner, or some person on his, her, or their behalf, setting forth the facts concerning his, her, or their imprisonment, and in whose custody he, she, or they are detained; and shall be accompanied by a copy of the warrant, or warrants of commitments, or an affidavit that the said copy had been demanded of the person or persons in whose custody the prisoner or prisoners are detained, and by him or them refused or neglected to be given. The said court or clerk to whom the application shall be made, shall forthwith award the said writ of habeas corpus, unless it shall appear from the petition itself, or from the documents annexed, that the party can neither be discharged nor admitted to bail, nor in any other manner relieved, which said writ shall be issued under the hand of the clerk, and the seal of the court; which seal may be a written one, until another shall be obtained, and shall be in the following words, to wit: "Seal of the Municipal Court of the city of Nauvoo."

STATE OF ILLINOIS,

CITY OF NAUVOO, ss.

To the People of the State of Illinois, to the Marshal of said City, Greeting:

Whereas application has been made before the municipal court of said city that the body (or bodies) of A B, &c., is or are in the custody of C D, &c., of &c., these are therefore to command, the said C D, &., of &c., to safely have the body (or bodies) of said A B, &c., in his custody, detained, as it is said, together with the day and cause of his (her or their) caption and detention by whatsoever name the said A, B, &c., may be known or called, before the municipal court of said city, forthwith to abide such order as the said court shall make in his behalf; and further, if the said C D, &c., or other person or persons having said A B, &c., in custody shall refuse, or neglect to comply with the provisions of this writ, you, the marshal of said city, or other person authorized to serve the same, are hereby required to arrest the person or persons so refusing or neglecting to comply as aforesaid, and bring him or them, together with the person or persons in his or their custody, forthwith before the municipal court aforesaid, to be dealt with according to law; and herein fail not to bring this writ with you.

Witness, J. S., clerk of the municipal court at Nauvoo, this......day of.........in the year of our Lord one thousand eight hundred and forty.......... J. S., Clerk.

And [this shall] be directed to the city marshal, and shall be served by delivering a copy thereof to the person or persons in whose custody the prisoner or prisoners are detained, and said writ shall be made returnable forthwith, and the form and substance thereof, as herein set forth, and be taken and considered as part and parcel of this ordinance. To the intent that no officer, sheriff, jailer, keeper, or other person, or persons, upon whom such writ shall be served, may pretend ignorance thereof, every such writ and copy thereof served shall be endorsed with these words, "By the Habeas Corpus Act;" and whenever the said writ shall by any person be served upon the sheriff, jailor, keeper, or other person or persons whomsoever, holding said prisoner or prisoners, or being brought to him or them, or being served upon any of his or their under-officers or deputies at the jail, or place where the prisoner or prisoners are detained, he or they, or some of his or their under-officers or deputies shall, upon payment or tender of the charges of bringing the said prisoner or prisoners, to be ascertained by the court awarding the said writ, and endorsed thereon, not exceeding ten cents per mile; and upon sufficient security given to pay the charges of carrying him, her, or them back, if he, she, or they shall be remanded, make return of such writ, and bring or cause to be brought, the body or bodies of the prisoner or prisoners before the municipal court forthwith, and certify the true cause of his, her, or their imprisonment, unless the commitment of such person or persons shall be to the county jail in Hancock county, in which case the time shall be prolonged till five days, after the delivery of the writ as aforesaid, and not longer.

Provided, nevertheless, that in case any person or persons may at any time hereafter be taken and lodged in the city or county jail, under any writ or process, as provided by the city charter of the city of Nauvoo, and shall require a writ of habeas corpus to issue to bring him, her, or them before the municipal court of said city, said writ shall issue to bring him, her, or them before said court, and be directed to the city marshal to be served upon the person or persons in whose custody such prisoner or prisoners may then be detained.

Sec. 2. Where any person or persons not being committed or detained for any criminal or supposed criminal matter shall be confined or restrained of his, her, or their liberty, under any color or pretense whatever, he, she, or they may apply for a writ of habeas corpus, as aforesaid, which application shall be in writing, signed by the party, or some person on his, her, or their behalf, setting forth the facts concerning his, her, or their imprisonment, and wherein the illegality of such imprisonment consists, and in whose custody he, she or they are detained; which application or petition shall be verified by the oath or affirmation of the party applying, or some other person on his, her, or their behalf. If the confinement or restraint is by virtue of any judicial writ or process, or order, a copy thereof shall be annexed thereto, or an affidavit made that the same had been demanded and refused: the same proceedings shall thereupon be had in all respects, as are directed in the preceding section, and any officer, person, or persons, knowing that he or they have an illegal writ, or not having any writ, who shall attempt through any false pretext to take or intimidate any of the inhabitants of this city, through such pretext, shall forfeit for every such offense a sum not exceeding one thousand dollars, nor less than five hundred dollars, or in case of failure to pay such forfeiture, to be imprisoned not more than twelve months nor less than six months.

Sec. 3. Upon the return of the writ of habeas corpus, a day shall be set for the hearing of the cause of imprisonment or detainer, not exceeding five days thereafter, unless the prisoner or prisoners shall request a longer time. The said prisoner or prisoners may deny any of the material facts set forth in the return, or may allege any fact to show either that the imprisonment or detention is unlawful, or that he, she, or they, is or are then entitled to his, her, or their discharge, which allegations or denials shall be made on oath. The said return may be amended, by leave of the court, before or after the same is filed, as also may all suggestions made against it, that thereby material facts may be ascertained. The said court shall proceed in a summary way to settle the said facts, by hearing the testimony and arguments, as well of all parties interested civilly, if any there be, as of the prisoner or prisoners and the persons or person who holds him, her, or them in custody, and shall dispose of the prisoner or prisoners as the case may require. If it appear that the prisoner or prisoners are in custody by virtue of process from any court, legally constituted, he, she, or they can be discharged for the following causes:—First, where the court has exceeded the limits of its jurisdiction, either as to the matter, place, sum, person, or persons; second, where, though the original imprisonment was lawful, yet by some act, omission, or event which has subsequently taken place, the party has become entitled to his, her, or their discharge; third, where the process is defective in some substantial form required by law; fourth, where the process though in proper form has been issued in a case, or under circumstances where the law does not allow process, or orders for imprisonment or arrest, to issue; fifth, where although in proper form the process has been issued or executed by a person or persons, either unauthorized to issue or execute the same, or where the person or persons having the custody of the prisoner or prisoners under such process is not the person or persons empowered by law to detain him, her, or them; sixth, where the process appears to have been obtained by false pretense or bribery; seventh, where there is no general law, nor any judgment, order, or decree of a court, to authorize the process, if in a civil suit, nor any conviction, if in a criminal proceeding. In all cases where the imprisonment is for a criminal or supposed criminal matter, if it shall appear to the said court that there is sufficient legal cause for the commitment of the prisoner or prisoners, although such commitment may have been informally made, or without due authority, or the process may have been executed by a person or persons not duly authorized, the court shall make a new commitment, in proper form, and directed to the proper officer or officers, or admit the party to bail, if the case be bailable.

Sec. 4. When any person or persons shall be admitted to bail on habeas corpus, he, she, or they shall enter into recognizance with one or more securities in such sum as the court shall direct, having regard to the circumstances of the prisoner or prisoners, and the nature of the offense, conditioned for his, her, or their appearance at the next circuit court to be holden in and for the county where the offense was committed, or where the same is to be tried. Where the court shall admit to bail, or remand any prisoner or prisoners brought before the court, on any writ of habeas corpus, it shall be the duty of said court to bind all such persons as to declare any thing material to prove the offense, with which the prisoner or prisoners are charged by recognizance to appear at the proper court having cognizance of the offense, on the first day of the next term thereof, to give evidence thereof touching the said offense, and not to depart the said court without leave; which recognizance so taken, together with the recognizance entered into by the prisoner or prisoners, when he, she, or they are admitted to bail, shall be certified and returned to the proper court, on the first day of the next succeeding term thereof. If any such witness or witnesses shall neglect or refuse to enter into a recognizance as aforesaid, when thereunto required, it shall be lawful for the court to commit him, her, or them to jail until he, she, or they shall enter into such recognizance, or be otherwise discharged by due course of law. If the court shall neglect or refuse to bind any such witness or witnesses, prisoner or prisoners, by recognizance as aforesaid, or to return any such recognizance, when taken as aforesaid, the court shall be deemed guilty of a misdemeanor in office, and be proceeded against accordingly.

Sec. 5. Where any prisoner or prisoners brought up on a habeas corpus shall be remanded to prison, it shall be the duty of the municipal court remanding him, her, or them to make out and deliver to the sheriff, or other person or persons to whose custody he, she, or they shall be remanded, an order in writing, stating the cause or causes of remanding him, her, or them. If such prisoner or prisoners shall obtain a second writ of habeas corpus, it shall be the duty of such sheriff or other person or persons upon whom the same shall be served, to return therewith the order aforesaid; and if it shall appear that the said prisoner or prisoners were remanded for an offense adjudged not bailable, it shall be taken and received as conclusive, and the prisoner or prisoners shall be remanded without further proceedings.

Sec. 6. It shall not be lawful for the municipal court, on a second writ of habeas corpus obtained by such prisoner or prisoners, to discharge the said prisoner or prisoners, if he, she, or they are proven guilty of the charges clearly and specifically charged in the warrant of commitment with a criminal offense; but if the prisoner or prisoners shall be found guilty, the municipal court shall only admit such prisoner or prisoners to bail, where the offense is bailable by law or ordinance, or remand him, her, or them to prison, where the offense is not bailable; or being bailable, if such prisoner or prisoners shall fail to give the bail required.

Sec. 7. No person or persons who have been discharged by order of the municipal court on a habeas corpus, shall be again imprisoned, restrained, or kept in custody for the same cause, unless he, she, or they, be afterwards indicted for the same offense, or unless by the legal order or process of the municipal court wherein he, she, or they are bound by recognizance to appear, the following shall not be deemed to be the same cause. First, if after a discharge for defect of proof, or any material defect in the commitment in a criminal case, the prisoner or prisoners should be again arrested upon sufficient proof and committed by legal process, for the same offense; second, if in a civil suit the party or parties have been discharged for any illegality in the judgment or process, and are afterwards imprisoned by legal process, for the same cause of action; third, generally whenever the discharge has been ordered on account of the non-observance of any of the forms required by law, the party or parties may be a second time imprisoned, if the cause be legal and the forms required by law observed.

Sec. 8. If any person or persons shall be committed for a criminal matter, in case of the absence of a witness or witnesses whose testimony may be considered to be of importance in behalf of the people, the municipal court may adjourn from time to time at its discretion, provided they decide upon the case within thirty days, if it shall appear by oath or affirmation that the witness or witnesses for the people of the state are absent, such witness or witnesses being mentioned by name, and the court shown wherein their testimony is material.

Sec. 9. Any person or persons being committed to the city or county jail, as provided in the Charter in the City of Nauvoo, or in the custody of an officer, sheriff, jailer, keeper, or other person or persons, or his or their under-officer or deputy, for any criminal or supposed criminal matter, shall not be removed from said prison or custody into any prison or custody, unless it be by habeas corpus, or by an order of the municipal court, or in case of sudden fire, infection, or other necessities; if any person or persons shall, after such commitment as aforesaid, make out, sign, or countersign any warrant or warrants for such removal, then he or they shall forfeit to the prisoner or prisoners aggrieved a sum not exceeding five hundred dollars, to be recovered by the prisoner or prisoners aggrieved, in the manner hereinafter mentioned.

Sec. 10. If any member of the municipal court, or the clerk of said court shall corruptly refuse or neglect to issue writ or writs of habeas corpus when legally applied to in a case where such writ or writs may lawfully issue, or who shall for the purpose of oppression unreasonably delay the issuing of such writ or writs, shall for every such offense forfeit to the prisoner or prisoners, party or parties aggrieved, a sum not less than five hundred dollars and not exceeding one thousand dollars, and be imprisoned for six months.

Sec. 11. If any officer, sheriff, jailer, keeper, or other person or persons upon whom any such writ shall be served, shall neglect or refuse to make the returns as aforesaid, or to bring the body of the prisoner or prisoners according to the command of the said writ within the time required by this ordinance, all and every such officer, sheriff, jailer, keeper, or other person or persons shall be guilty of a contempt of the municipal court who issued said writ: whereupon the said court may and shall issue an attachment against said officer, sheriff, jailer, keeper, or other person or persons, and cause him or them to be committed to the city or county jail as provided for by the city charter of the city of Nauvoo, there to remain without bail or mainprize, until he or they shall obey the said writ; such officer, sheriff, jailer, keeper, or other person or persons shall also forfeit to the prisoner or prisoners, party or parties aggrieved, a sum not exceeding one thousand dollars, and not less than five hundred dollars.

Sec. 12. Any person or persons having a prisoner or prisoners in his or their custody, or under his or their restraint, power, or control, for whose relief a writ or writs of habeas corpus is issued, who, with intent to avoid the effect of such writ or writs, shall transfer such person or persons to the custody of, or place him, her, or them under the control of any other person or persons, or shall conceal him, her, or them, or change the place of his, her, or their confinement, with intent to avoid the operation of such writ or writs, or with intent to remove him, her, or them out of the state, shall forfeit for every such offense one thousand dollars, and may be imprisoned not less than one year, nor more than five years. In any prosecution for the penalty incurred under this section, it shall not be necessary to show that the writ or writs of habeas corpus had issued at the time of the removal, transfer, or concealment therein mentioned, if it be proven that the acts therein forbidden were done with the intent to avoid the operation of such writ or writs.

Sec. 13. Any sheriff, or his deputy, any jailer or coroner having custody of any prisoner or prisoners committed on any civil or criminal process, of any court or magistrate, who shall neglect to give such prisoner or prisoners a copy of the process, order, or commitment, by virtue of which he, she, or they are imprisoned, within six hours after demand made by said prisoner or prisoners, or any one on his, her, or their behalf, shall forfeit five hundred dollars.

Sec. 14. Any person, knowing that another has been discharged, by order of the municipal court, on a habeas corpus, shall, contrary to the provisions of this ordinance, arrest or detain him or her again for the same cause which was shown on return of such writ, shall forfeit one thousand dollars for the first offense, and two thousand dollars for every subsequent one.

Sec. 15. All the pecuniary forfeitures incurred under this ordinance shall be and inure to the use of the party for whose benefit the writ of habeas corpus was issued, and shall be sued for and recovered with costs by the city attorney, in the name of the city by information, and the amount when recovered shall, without any deduction, be paid to the parties entitled thereto.

Sec. 16. In any action or suit for any offense against the provisions of this ordinance, the defendant or defendants may plead the general issue, and give the special matter in evidence.

Sec. 17. The recovery of said penalties shall be no bar to a civil suit for damages.

Sec. 18. The municipal court, upon issuing a writ of habeas corpus, may appoint any suitable person to serve the same, other than the marshal, and shall endorse the appointment on the back of said writ.

Sec. 19. This ordinance to take effect and be in force from and after its passage, any act heretofore to the contrary thereof in any wise notwithstanding. Passed November 14, 1842.

JOSEPH SMITH, Mayor.

JAMES SLOAN, Recorder.

Many other bills were discussed on this and previous days.

CHAPTER XI.

PROPHET'S RETIREMENT FROM EDITORSHIP OF "TIMES AND SEASONS"—PROGRESS OF WORK ON THE TEMPLE—DIVISION OF NAUVOO INTO TEN WARDS—WM. SMITH IN THE ILLINOIS LEGISLATURE—GOVERNOR FORD ON MISSOURI'S DEMAND FOR THE PROPHET.

Tuesday, November 15, 1842.—About home. Wrote for the Times and Seasons the following: