| Show I 1 copyright secured HISTORY OF JOSEPH SMITH JANUARY 1843 jan jn thursday 5 at 9 am repaired to the coart court room which was crowded with spectators anxious to behold beirold the prophet aud and hear the decision of judge pope who soon took his seat accompanied by half a cozen ladies and gave the tile following OPINION the importance of this tilis cae case and the consequences which may flow from an erroneous erro reous precedent affecting the lives and liberties of our citizens have impelled the court to bestow upon it the tho most anxious consideration the able ar gun zun tents of the counsel for the respective parties have been of great assistance in lit the examination of the important question arising in this tills cause when then the pati patriots lots and wise men who framed our ur constitution were in anxious deliberation to form a perfect unton union union among the states of the confederacy two great sources of discord presented themselves to their consideration the therom com merce between the states and fugitives from fruhn justice and labor the border collisions in other countries have been seen to be bpi a fruitful source of war and bloodshed and most wisely did tiie tile constitution confer upon the national government the regulation of those matters because of its exemption from the excited pas passions awakened by conflicts between neighboring states and its ability alone to adopt a uniform r ule rule and establish uniform laws among all the states in those cases this case presents the important question aria arla ing under the constitution ard arid laws of the united states whether a citizen of the state of enois can be transported from his own state stale to the state of missouri to be there tried for a crime which if it he ever committed was committed in the state of illinois whether he can call be transported to missouri as a fugitive from front justice when ho he has never fled from that state joseph smith is before the court on habeas corpus directed to the sheriff of sangamon count state of illinois the return shows that he is in custody under a warrant from the executive execute ive of illinois professedly issued in pursuance of the he constitution and laws of the united states slate and of the state of illinois ordering said smith to be delivered to the agent of the he executive of missouri bourl who had demanded him as a in fugitive lugi iuri tive from jus justice tice under the tho 2nd and section ath article of tiie the constitution of the united states and the act of 0 I 1 congress passed parsed to carry into effect that article the article is in these words viz A person charged in any state slate with treason felony or other odther crime who shall flee from justice and ad be to found und and in lit another state shall on demand ca of f the ejective exec tive authority of the state from which he fled be delivered up to be remove removed d to the state having jurisdiction of the crime jhb the e act of congress made to carry into deflect tills this article directs that the demand be made on the he executive of or the state where the of render offender is found and prescribes the proof to support the demand viz indictment or affidavit the tile court deemed it respectful to inform the governor governor and attorney general of the state of illinois illi illinois nois of the action upon the habeas corpus on the day appointed for the hearing the attorney I 1 gener general alfor forthe the stale state of illinois appeared and denied the jurisdiction of the tile court to grant the habeas corpus lat because the warrant was not issued under color or ly authority of the united states but bythe by the state of Il illinois linola 2nd bild because no habeas corpus can issue hsue in this case from either tile the federal or state courts to inquire into facts behind the ibie writ in support of the first point a law ladof of illinois J was read bechring dech decu iring ring that whenever the executive I 1 of any other state shall demand of tile the executive of tills this state any pers peram n as a fog fugitive etive from justice and shall have complied with the requisition n of the tile act of congress in that case made and provided 1 it shall be the duty of the executive Of I 1 1111 lill state to issue his warrant to apprehend the I 1 baid raid fugitive ac it would seem that this act i 1 does not purport to con conter confer fer ter any additional power upon tile the executive of this thia state independent of the power conferred by the constitution and laws law of tile the united states but to make it the duty of I 1 the executive to obey and carry into effect ti the act of congress the warrant on its ils face purports to be issued in pursuance of the constitution and laws of the united states as well as of the state of li illino linos s to maintain tile the poi pol position tion that this warrant was not issued under color or by an authority dhority of the laws of the United States it must be proved that the united states could not confer the power oil on the executive of illinois because if congress could an ani d did confer it no act of illinois could take it away for the rehon reason that the constitution and laws of the united states passed in lit pursuance and treaties are the supreme law of the land and the judges in lit every state shall bo be bound th thereby reby anything in it the constitution or laws of any state to the contrary notwithstanding this tin s Is is enough to dispose of that point if the of illinois as is probable intended te to make it the duty of the governor to exercise the power granted by congress and no mores more the executive would be acting by authority of the united states it may be eliat the legislature of illino s appreciating the importance of the proper execution of those laws and doubting whether the governor could be punished for re fusinato fusing to carry them into effect deemed it prudent to impose it t as a duty the neglect of which would expos expose e b him lui jul to impeachment if it intended more the file law is 13 unconstitutional and void 16 peters vs penn pennsylvania s y I 1 vani a in supporting the second point the attorney general seemed to urge t hat there was greater sanctity in a warrant t issued s fu d by the governor than by an inferior officer the court cannot assent to this distinction this is a government of laws which prescribes a rule of act acton action on as obligatory upon the governer governor as upon the most obscure officer the character and purposes of the habeas corpus are greatly misunderstood by those who suppose that it does not review the acts of an executive functionary all who are familiar with english history must know that it was extorted from an arbitrary monarch and that it was hailed as a second magna charter and hat that it was to protect the subject from arbitrary imprisonment by the king and his ills minions which bi ought caught licca ln 0 o existence existence that great palladium of liberty in lit the latter part of the reign of charles the second it was indeed a magnificent ent achievement over arbitrary power magna charta charla established the principles of liberty tiie tile habeas corpus protected them it matters not how great or obscure the prisoner how great or obscure tile the prison keeper this munificent t writ wielded by all an independent judge reaches readies all I 1 it I 1 penetrates alike the royal towers and the local prisons from tile tiie garret to the secret ecret recesses of the dungeon all doors fly open at its command and the shackles fall from the limbs of prisoners of state as readily ns as from those committed by subordinate officers the warrant of the king and his secretary of state could claim no more exl ex L emption from that se searching archin inquiry inquiry 1 the cause of his caption and detention than n a warrant granted by a justice of the peace it is contended that the united states is a government of granted powers and that no department of it can eter ex ercie ercle cise powers not granted this is true but the grant is to be found in the second section of the third article of the constitution of the tho united states slates tile the judicial power shall extend to all cases in law or equity ti hi rising under this constitution the laws lawa of or the united states slates and treaties made and which shall be made under their antho authority thorl tho rits rity lv the matter under consideration presents a case arising under the section ath article articie artic 1 e of the constitution 0 of the united states stiles and the act set of congress of february 1793 to carry it luto into effect the judiciary act of IM confers on this tills court indeed on all the courts of tile the united states power to issue the writ of habeas corpus when a person is confined under color of or by the tile authority aul hority of the llie united bulted states stales smith is in custody under color of and by authority of the 2nd and section ath article of the constitution of the united states As to the instrument employed or authorized to carry into emmi effi act that article of the llie constitution as lie derives from it the authority to issue the tiie warrant lie he must be regarded as 9 acting by the authority of the llie united states slates the power pa i lot not official in lit the tiie governor but personal it might have been granted to any one else by named name but considerations of convenience and policy recommended the selection of or the executive who never a dies ies les the cit citizens leeds of the states are re citi citizens zeus of the united states hence th the e united states are as much bound to alfrord afford them protection in their sphere PS the states are in theirs this court has hns jurisdiction whether the state courts have jurisdiction or not this court is 19 not called upon io to decide the return of the shariff shows that he lie has arrested and now holds in custody joseph smith la in virtue of a warrant issued by the goyer goter governor nor of illinois under the tile aad section of the ath article of the constitution of tile tiie united states relative to fugitives fugl lugi tives lives froni from justice and the tiie act of congress passed to carry it into effect the article of the constitution does not design fum a the person upon whom the demand for the fugitive ve shall be made nor does I 1 it pae vms prescribe liue cibe the proof upon which winch he shall act but congress has hair done dono oo 00 the proof is an indictment or affidavit to be certified by the governor demanding the return brings before tile the court the warrant the demand and the affidavit the mati material rial part of the latter is in these words viz lilburn V W boggs who being duly duis sworn doth de depose as band and say that on the night of the ath I 1 day of may nay y 1842 1642 while sitting setting in liis ills dwelling in the town own of independence in the county of jackson he was shot with intent to kill and that I 1 his life was despaired of for several days pad that he lie believes and has good reason to believe from evidence and information now in his possession that joseph smith commonly called the mormon I 1 prophet Prop liet ilet was accessory before the fact of the intended I 1 murder and that the said joseph smith is a citizen or resident of the state of illinois this affidavit is certified by the governor of missouri to be authentic the affidavit being thus verified furnished the only evidence upon which the governor of illinois could act smith presented affidavits proving that he was not in I 1 missouri hlis Alls sour at the date of the si shooting looting of boggs this testimony was objected to by the tiie attorney general of illinois on the tha ground that the court could conid not look behind the return the court deems it unnecessary to decide that point inasmuch as it thinks smith entitled to ilis his discharge for defect in the affidavit to authorise the anest in this thi s case the affidavit should have stated distinctly that smith had committed a crimel crime 2nd and that lie committed it in Mis mib soud it must appear hat that he fled from missouri to an authorise the governor of dils AlIs missouri souil to dern dein demand and him as none other than tile he governor of the state from which he fled can make ninke the demand he could not have fled from justice unless he committed arime a rime which does not appear it must appear that the crime was committed in missouri I 1 to warrant the governor of illinois in ordering him to be sent to missouri for trial the 2nd and section ath article declares he lie shall be removed to the state having jurn juri diction of or the tiie j crime As it is not 1 t charged that the crime was committed by lay smith smi t lo 10 in missouri the governor of illinois could not cause him to be removed to that I 1 state unless it can be maintained that the stae stale of dils Alis missouri can entertain jurisdiction of crimes com committed bitted in other states stales the affirmative of i this proposition n was taken in the argument with a 2 eal zeal indicating sincerity bilt bill no adjudged case or dictum was adduced in support of it tile the court conceives that none can be let it bo be tested by principle man alan in a state of nature is a sovereign with all the pr prerogatives e r of king lords and commons he ma may y d declare e clare ciare aarand war and make peace and as na lions often olten do who feel power and forget right may ca oppress rob and subjugate il his is 1 weaker and I 1 u unoffending f f e eding neighbors ile he unites in his person the legislative judicial and executive power 6 can do no wrong because there is i s none to hold him to account but when he un unites lies fies himself with a community lie lays down all the prerogatives roga tives of sovereign except self defence and becomes a subject ile he owes obedience to its laws and the judgments of its ils tribunals which he ile is supposed to have havo participated in establishing either directly or indirectly he surrenders also tile the right of self red redress in lit consideration of or all which he is entitled to the aegis of that community to defend him from wrongs he ile takes upon himself no allegiance to any other community so owes it na obedience and therefore cannot disobey it none other than his own sovereign can prescribe a rule of action to him each sovereign regulates the conduct of its subjects and they may be punished upon the assumption that they know the rule and have consented to be governed by it it would he be a gross violation of the social compact if tie lie state were to deliver up one of its citizens to be tried and punished by a foreign state to wll wil which 1 ich he owes no allegiance and whose laws were A ere ene never binding on him no state can or will do it in the absence of the constitutional provi provision cion clon the tho state of Misso missouri uri url would stand on this subject in lit tile the same relation to the state of illinois that spain does to england in this particular the states are independent t of each other a criminal fugitive from one state to another could not he be claimed as of right to be given up I 1 it is most true ns as mentioned by writers on the laws of nations that every state is 13 le ze j to its neighbors for the conduct of its citizens so far as their conduct violates the principles of good neighborhood so it is among private individuals i bur but dut for this the tile inviolability 0 of f territory or private dwelling could not be mail mall maintained stained ita ined this obligation creates the right and makes ft it the duly duty of the state slate to impose such restraints upon the citizen as the occa occasion demands it was in toe ne performance of this duty daty that the united states passed laws to restrain citizens of the united states from setting on foot and fitting 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