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

2. 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 nor federal, have any authority or jurisdiction to enquire into any facts behind the writ.

My counsel then offered to read, in evidence, affidavits of several persons, showing conclusively that I 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 I 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 me during the whole of that period. That on the 6th day of May aforesaid, I 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 I 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 grounds that it was not competent for Smith to impeach or contradict the return of the habeas corpus. It was contended by my counsel, 1st, that I had a right to prove that the return was untrue. 2nd, that the said affidavits did not contradict the said return, as there was no averment under the oath in said return that I 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, all of which will appear on my discharge. B. S. Edwards, Esq., opened the defense in an animated speech, and made some very pathetic allusions to our sufferings in Missouri, followed by Mr. Butterfield, who made the following points:—

Summary of Counsel Butterfield's Argument.

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 from justice, 2nd sec., 4th article Constitution of the United States, 1st 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, 2nd sec., 3rd article Constitution United States, 12th Wendall, 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 has 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, 2nd and 3rd clause of 2nd sec., 4th article Constitution United States, 2nd vol. Laws United States 331—16 Peters, 617, 618, 623; 4th Wheaton's Reports, 122, 193-12; Wendall, 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; 2nd Condensed 33; 3rd Cranch, 447; 3rd 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 Mo., nor that he was a 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; 3rd Bacon, 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; 3rd Bacon, 435, 438; 3rd Peters, 202; Gale's revised laws of Illinois, 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 2nd Condensed Reports, 37; Gordon's Digest, 73; Gale's Statutes of Illinois, 318; Conkling, 85; 9th Wendall, 212.

The Plea of Mr. Butterfield.

In the course of his plea, Mr. Butterfield showed that Governor Reynolds had subscribed to a lie in his demand for me, as will appear in the papers, [published in this chapter]; and said that Governor Carlin would not have given up his dog on such a requisition. That an attempt should be made to deliver up a man who has never been out of the state, strikes at all the liberty of our institutions. His fate today may be yours tomorrow. I do not think the defendant ought, under any circumstances, to be given up to Missouri. It is a matter of history that he and his people have been murdered or driven from the state. If he goes there, it is only to be murdered, and he had better be sent to the gallows. He is an innocent and unoffending man. If there is a difference between him and other men, it is that this people believe in prophecy, and others do not; the old prophets prophesied in poetry and the modern in prose.

Esquire Butterfield managed the case very judiciously. The court-room was crowded during the whole trial; the utmost decorum and good feeling prevailed, and much prejudice was allayed. Esquire Lamborn was not severe, apparently saying little more than his relation to the case demanded.

The Treatment of the Prophet at Springfield.