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Source: Church History Vol. 2 Chapter 30 Page: 706 (~1843-1844)

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706 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 color of law and legal process. To constitute an extreme emergency, so as to justify a call for the militia, there ought, in my opinion, to be something more than a mere illegal act-something more than a design to resist the law in a single instance. The design ought to be general as in treason, rebellion, or insurrection; in which cases an universality of design is essential to constitute the offense.

"If a person resists a constable or sheriff, or other officer charged with the execution of process, with an intention to resist the law in that particular instance; such an act is a misdemeanor at most,-is indictable as such, and may be met by the posse comitatus. But something more than a mere misdemeanor must have been contemplated by the law. It would seem to me that it could never have been intended that the Governor should call out the militia in every case where a constable or sheriff may be resisted; and even in a case of a riotous resistance, it would not be an extreme emergency without some military array, some warlike show, or some threatened resistance to the government itself.

"In this case there has been no warlike array in the proceedings of Smith and his friends; no exhibition of arms, and no actual force of an illegal character. Mr. Reynolds was not subjected to illegal imprisonment. He was arrested on lawful process; and although that process may have been wrongfully obtained, yet his arrest was not riotous or unlawful, but according to the forms of law. Mr. Reynolds continued in the custody of the sheriff by virtue of that process

(page 706)

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