The City of the Saints, and Across the Rocky Mountains to California

by Sir Richard Francis Burton

At a quarter past ten o’clock the governor left.

At about half past twelve o’clock, Mr. Reed, one of Joseph’s counsel, came in, apparently much elated; he stated that, “upon an examination of the law, he found that the magistrate had transcended his jurisdiction, and that, having committed them without an examination, his jurisdiction ended; that he had him upon a pin-hook; that he ought to have examined them before he committed them, and that, having violated the law in this particular, he had no farther power over them; for, once committed, they were out of his jurisdiction, as the power of the magistrate extended no farther than their committal, and that now they could not be brought out except at the regular session of the Circuit Court, or by a writ of habeas corpus; but that if Justice Smith would consent to go to Nauvoo for trial, he would compromise matters with him, and overlook this matter.”

Mr. Reed farther stated that “the ‘anti-Mormons,’ or mob, had concocted a scheme to get out a writ from Missouri, with a demand upon Governor Ford for the arrest of Joseph Smith and his conveyance to Missouri, and that a man by the name of Wilson had returned from Missouri the night before the burning of the press for this purpose.”

At half past two o’clock Constable Bettesworth came to the jail with a man named Simpson, professing to have some order, but he would not send up his name, and the guard would not let him pass. Dr. Bernhisel and Brother Wasson went to inform the governor and council of this. At about twenty minutes to three Dr. Bernhisel returned, and stated that he thought the governor was doing all he could. At about ten minutes to three Hyrum Kimball appeared with news from Nauvoo.

Soon after Constable Bettesworth came with an order from Esquire Smith to convey the prisoners to the court-house for trial. He was informed that the process was illegal, that they had been placed there contrary to law, and that they refused to come unless by legal process. I was informed that Justice Smith (who was also Captain of the Carthage Grays) went to the governor and informed him of the matter, and that the governor replied, “You have your forces, and of course can use them.” The constable certainly did return, accompanied by a guard of armed men, and by force, and under protest, hurried the prisoners to the court.

About four o’clock the case was called by Captain Robert F. Smith, J. P. The counsel of the prisoners called for subpœnas to bring witnesses. At twenty-five minutes past four he took a copy of the order to bring the prisoners from jail to trial, and afterward he took names of witnesses.

Counsel present for the state: Higbee, Skinner, Sharpe, Emmons, and Morrison. Twenty-five minutes to five the writ was returned as served, June 25th.

Many remarks were made at the court that I paid but little attention to, as I considered the whole thing illegal and a complete burlesque. Wood objected to the proceedings in toto, in consequence of its illegality, showing that the prisoners were not only illegally committed, but that, being once committed, the magistrate had no farther power over them; but as it was the same magistrate before whom he was pleading who imprisoned them contrary to law, and the same who, as captain, forced them from jail, his arguments availed but little. He then urged that the prisoners be remanded until witnesses could be had, and applied for a continuance for that purpose. Skinner suggested until twelve o’clock next day. Wood again demanded until witnesses could be obtained; that the court meet at a specified time, and that, if witnesses were not present, again adjourn, without calling the prisoners. After various remarks from Reed, Skinner, and others, the court stated that the writ was served yesterday, and that it will give until to-morrow at twelve M. to get witnesses.

We then returned to jail. Immediately after our return Dr. Bernhisel went to the governor, and obtained from him an order for us to occupy a large open room containing a bedstead. I rather think that the same room had been appropriated to the use of debtors; at any rate, there was free access to the jailer’s house, and no bars or locks except such as might be on the outside door of the jail. The jailer, Mr. George W. Steghall, and his wife, manifested a disposition to make us as comfortable as they could; we ate at their table, which was well provided, and of course paid for it.

I do not remember the names of all who were with us that night and the next morning in jail, for several went and came; among those that we considered stationary were Stephen Markham, John S. Fulmer, Captain Dan Jones, Dr. Williard Richards, and myself. Dr. Bernhisel says that he was there from Wednesday in the afternoon until eleven o’clock next day. We were, however, visited by numerous friends, among whom were Uncle John Smith, Hyrum Kimball, Cyrus H. Wheelock, besides lawyers, as counsel. There was also a great variety of conversation, which was rather desultory than otherwise, and referred to circumstances that had transpired; our former and present grievances; the spirit of the troops around us, and the disposition of the governor; the devising for legal and other plans for deliverance; the nature of testimony required; the gathering of proper witnesses; and a variety of other topics, including our religious hopes, etc.