The Rise and Fall of Nauvoo

by B. H. Roberts

A person charged in any State with treason, felony or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. (Constitution, Article 4; Section 2.)

Mr. Butterfield insisted that it was unnecessary to inquire into the laws that had been enacted by Congress on the subject, since:

Congress has just so much power and no more than is expressly given by the said clause in the Constitution.

"What persons, then," he inquires, "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, into another State, the governor of this State has no jurisdiction over his person and cannot deliver him up.

Mr. Butterfield reviewed the subject of habeas corpus writs and their operations both in England and the United States, and quoted a number of cases from the courts of New York, and the action of the executives of the several States to support the principles he contended for, and concluded his communication in these words:

I would advise that Mr. Smith procure respectable and sufficient affidavits to prove beyond all question that he was in this State [Illinois] and not in Missouri at the time the crime with which he was 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 already of the opinion that, upon that state of facts, the supreme court will discharge him upon habeas corpus.

Joseph acted upon this advice, and sent agents with all the necessary papers to Springfield and applied to Governor Ford—Carlin's term of office in the meantime having expired—to revoke the writ and proclamation of ex-Governor Carlin for his arrest. The supreme court being in session, Governor Ford submitted the petition and all the papers pertaining thereto for their opinion, and they were unanimous in their belief that the Missouri writ was illegal, but were divided as to whether it would be proper for the present executive to interfere with the official acts of his predecessor, and therefore Governor Ford refused to interfere; but said, in a personal letter addressed to the Prophet:

I can only advise that you submit to the laws and have a judicial investigation of your rights. If it should become necessary, for this purpose to repair to Springfield, I do not believe that there will be any disposition to use illegal violence towards you; and I would feel it my duty in your case, as in the case of any other person, to protect you with any necessary amount of force, from mob violence whilst asserting your rights before the courts, going to and returning.

This reply was endorsed by Mr. Butterfield and James Adams, in whom Joseph had great confidence; and in conformity with the advice, Joseph was arrested by Wilson Law, on Carlin's proclamation. Application was made at Carthage for a writ of habeas corpus to go before the court at Springfield. No writ could be obtained at the court in Carthage, as the clerk had been elected to the State senate; but an order for such writ was issued on the master in chancery, and with that document Joseph, in the company of his brother Hyrum, John Taylor and others, and in charge of Wilson Law, started for Springfield, where they arrived in the afternoon of the thirtieth of December, 1842.