| 293 writs were accordingly issued, returnable before the nearest judicial tribunal; in the circuit in which Quincy is situated, and thereupon all parties proceeded in the direction of Quincy: Smith being in the custody of Reynolds, and Reynolds himself in the custody of the sheriff of Lee county. On the road during their progress, they were met by parties of the citizens of Nauvoo; some or most of whom are said to have been members of the Nauvoo legion; though there is no evidence that they appeared in a military capacity. There was no exhibition of arms of any description, nor was there any military or warlike array; nor was there any actual force used; though Mr. Reynolds testifies that he felt under constraint, and that Smith, soon after meeting the first parties of Mormons enlarged himself from his custody.-Mr. Reynolds also testifies, (and there can be no doubt of the fact,) that he was taken to Nauvoo against his will. But whether he was taken there by the command of Smith and his friends, or by the voluntary act of the sheriff of Lee county, who had him in custody, does not appear by any testimony furnished by Mr. Reynolds. The affidavit of the sheriff has not been obtained; though there is evidence on the other side to show that the sheriff of Lee county voluntarily carried Mr. Reynolds to the city of Nauvoo, without any coercion on the part of any one.
After arriving at Nauvoo, a writ of habeas corpus was issued by the municipal court of that city, and Mr. Reynolds was compelled by the authority of the court to produce Mr. Smith before that tribunal. After hearing the case, the court discharged Smith from arrest.
There is much other evidence submitted; but the foregoing is the material part of it to be considered on the present occasion.
Now Sir, I might safely rest my refusal to order a detachment of militia to assist in retaking Smith upon the ground that the laws of this state have been fully exercised in the matter. A writ has been issued for his apprehension. Smith was apprehended; and was duly delivered by the officer of this state, to the agent of the state of Missouri, appointed to receive him. No process, officer, or authority of this state has been resisted or interfered with. I have fully executed the duty which the laws impose on me, and have not been resisted either in the writ issued for the arrest of Smith, or in the person of the officer appointed to apprehend him. If there has been any resistance to any one, it has been to the officer of Missouri, after Smith came to his custody; and every thing had been done on my part which the law warranted me in doing.
Another objection to ordering a detachment of militia, arises out of the militia laws of this State; the forty-third section of which is as follows: "Whenever it may be necessary to call into actual service any part of the militia of this State on a requisition of the executive of the United States, on an actual or threatened invasion of this State, or any of the neighboring States or Territories of the United States, the commander-in-chief shall forthwith demand from each division a detachment in proportion to the strength thereof, except as hereinafter excepted; which order shall be delivered by a special messenger to the several commandants of divisions, specifying the number demanded from each division; the time and place of rendezvous, if ordered to march; and if the same be detached under any particular act of the U. States to endorse the same on such order: Provided, that whenever the safety of any of the frontier settlements in this State, shall, in the opinion of the Governor, require it, he may exempt the militia in such settlements from being called into service, and make such further provision for the defence [defense] as the necessity of the case may require; which exemption shall be expressed in his orders to commandants of the division; who, together with the commandants of brigades, regiments, battalions and companies, shall govern themselves accordingly;-And provided also, that such militia-men may be required to serve as spies on their own frontiers; and that on actual invasion or any extreme emergency, the commander-in-chief, commandants of divisions, brigades, battalions and companies may call on the whole or any part of the militia under their respective commands, as the nature of the case may require, who shall continue in service, if necessary, until the militia can be regularly called out."
The Governor has no other authority in calling out the militia, than that which is contained in this section; by which it appears that there must be either a requisition from the President, an actual or threatened invasion, or some extreme emergency to warrant the Governor in exercising this power. No one of these contingencies has arisen. There has been no requisition from the President-there has been no actual or threatened invasion of the State-nor is this such an extreme emergency as is contemplated by the law. If we allow that force was exhibited and threatened, to compel your agent to carry his prisoner before the municipal court of Nauvoo; that the court there took cognizance of the cause without jurisdiction, and against the consent of your agent, it would amount at most to a riot; and to a resistance of authority in a single case, and that too under
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