August 17, 1842, Emma Smith wrote a pathetic appeal to Governor Carlin pleading the cause of her husband and the Latter-day Saints, and requesting that he rescind his order to turn President Smith over to his enemies in Missouri. She set forth in a clear, logical manner the fact that the decision to deliver him to the authorities in Missouri was contrary to law. That if he had been guilty of any crime it must have been committed in Illinois, and the pursuit of President Smith was a continuation of the old mob spirit and persecution which had followed the Saints during all the years of their sojourn in Missouri. Others also appealed to the governor, reminding him of the many threats that were made against the citizens of Nauvoo, by John C. Bennett, Edward R. Ford and others. His reply to all of these was that he could not conceive of an attack of violence upon the citizens, and there was “no excitement anywhere but in Nauvoo, amongst the Mormons themselves.” There was no apprehension of trouble in other places, so far as he was able to ascertain. At the same time he confessed in conversation, that “persons were offering their services every day, either in person or by letter, and held themselves in readiness to go against the Mormons” whenever he should call upon them. Judge Ralston, who was present when the governor read Emma Smith’s letter, asked him how he thought Mr. Smith could go through the midst of his enemies, without violence being used towards him; and, if acquitted, how was he to get back? The governor was unable to make satisfactory reply.
Answering Emma Smith’s letter, the governor said he had been “prompted by a strict sense of duty,” and in discharge of that duty, had “studiously pursued that course least likely to produce excitement and alarm.” He hoped that Joseph Smith would submit to the laws and that justice might be done. At the same time he said the Constitution and the laws of the United States required him to take the course he did regarding Joseph Smith as a fugitive from justice. Yet he was perfectly aware that President Smith was not a fugitive in any sense of the term. He further suggested that if “he is innocent of any crime, and the proceedings are illegal, it would be the more easy for him to procure an acquittal,” and he felt that Missouri would grant the “utmost latitude” in his defense. It was clear that he had no friendly disposition towards the President of the Church.
A Ruse to Capture President Smith
In the meantime President Joseph Smith returned to Nauvoo and in a meeting of a special conference August 29, addressed the Saints. Some of the Saints thought he had gone to Washington, others that he had gone to Europe, however, he had been in Nauvoo most of the time. Sunday, October 2, 1842, word came from Quincy, that Governor Carlin had offered a reward of two hundred dollars for the capture of Joseph Smith and the same amount for O. P. Rockwell. The Quincy Whig also stated that Governor Reynolds of Missouri, had offered a reward of three hundred dollars for each of the brethren. President Sidney Rigdon, who had been in conversation at Carthage with Judge Stephen A. Douglas, concerning Governor Carlin’s proceedings, informed William Clayton that he had learned that the governor had purposely issued an illegal writ, expecting President Joseph Smith would be drawn by it to Carthage to be acquitted before Judge Douglas on habeas corpus proceedings. As soon as this was done a legal writ would be served and he would be carried away to Missouri. Elder Elias Higbee confirmed President Rigdon’s report, adding thereto that many Missourians were coming to unite with the militia of Illinois, voluntarily, at their own expense. If President Smith should fail to go to Carthage they would come in force to Nauvoo and search the city. Receiving this knowledge, the Prophet concluded again to leave home for a season, and thus defeat the plans of Governor Carlin and his aids.
Justin Butterfield’s Legal Opinion
While all these trials and tribulations were going on, the case of President Joseph Smith had been presented to United States District Attorney Justin Butterfield, of Chicago, by the master in chancery, Major Warren. Mr. Butterfield wrote to Sidney Rigdon, October 10, 1842, an elaborate opinion on the case. The salient points in his opinion are as follows: If it could be proved that Joseph Smith had not fled from Missouri since the commission of the crime of which he was accused, and that he was not in that state at that time, then the governor of Illinois had no power to surrender him to Missouri. According to the Constitution, a man to be a fugitive, “must be a person who shall flee from justice and be found in another state.” The defendant has the right to show that the process upon which he was arrested was obtained by false pretense, that it is untrue that he fled from Missouri to evade being brought to justice there, for the crime of which he is charged. The affidavit of Boggs is not conclusive and may be rebutted; the defendant has the right to show the affidavit false. The affidavit of Boggs “on its face was not sufficient to authorize the arrest of Smith.” The opinion concluded with the following advice:
“I would advise that Mr. Smith procure respectable and sufficient affidavits to prove beyond all question, that he was in the state (Illinois) 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 to do so, I am clearly of the opinion that, upon the above state of facts, the supreme court will discharge him upon habeas corpus.”
Governor Carlin’s attitude being unfavorable, no further action was taken until December, when the term of Carlin expired. On the 8th of that month Thomas Ford was inaugurated as the chief executive of Illinois. Immediately affidavits were obtained to prove beyond controversy that President Joseph Smith was in the state of Illinois on the 6th day of May, 1842, the day of the shooting of ex-Governor Boggs, but Governor Ford refused to interfere with the action of his predecessor. The supreme court being in session, he passed the case with all the papers up to them for a decision. The judges held that the writ was illegal, but were divided as to whether or not Ford should interfere. The governor thereupon addressed President Joseph Smith, December 17, 1842, stating that he had submitted the case to the supreme court of Illinois. The governor then said:
“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 a 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.”