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.