| 33 TIMES AND SEASONS
"TRUTH WILL PREVAIL"
Vol. IV. No. 3.] CITY OF NAUVOO, ILL. DEC. 15, 1842 [Whole No. 63.
The very able and learned article on Habeas Corpus,' written by Justin Butterfield, United States' Attorney, for the District of Illinois, is worthy of attention. He shows, in a very lucid manner, what our right and privileges are, pertaining to that subject, and fully sustains the proceedings and views of the City Council, and the Municipal Court; it is sustained by the usages of all enlightened Courts, and accord with the opinion of every intelligent man,-the opinions of Ex-Governor Boggs, Gov. Reynolds, of Mo., and Gov. Carlin, to the contrary notwithstanding.
LETTER TO SIDNEY RIGDON, ESQ.
Chicago, Oct. 20th 1842.
SIDNEY RIGDON, ESQ:-
Dear Sir: In answer to your favors of the 17th inst. Mr. Warren was correct in the information he gave you of my opinion of the illegality of the requisition made by the Governor of Missouri, upon the Governor of this State, for the surrender of Joseph Smith, and that the Governor of this State should cause him to be arrested, for the purpose of being surrendered I had no doubt; but the Supreme Court of this State would discharge him upon Habeas Corpus,-subsequent examination has confirmed me in that opinion. I understand from your letter, and from the statement of facts made to me by Mr. Warren, that the requisition of the Governor of Missouri, is accompanied by an affidavit of Ex-Governor Boggs, stating in substance, that on the 6th day of May last he was shot while sitting in his house, with intent to kill, and as he verily believes, the act was committed by O. P. Rockwell, and that Joseph Smith was accessory to the crime before its commission, and that he has fled from justice; that it can be proved that Joseph Smith was not in the State of Missouri at the time the crime was committed, but was in this State; that it is untrue that he was in the State of Missouri at the time of the commission of the said crime, or has been there at any time since: he could not, therefore, have fled from that State since the commission of the said crime.
The right on the part of the Governor of Missouri to demand Smith, and the duty on the part of the Governor of this State to deliver him up: if they exist; are given and imposed by that clause of the Constitution of the United States. which declares 'that a person charged in any State with Treason, Felony, or other crime who shall flee from justice and be found in another State; shall on demand of the Executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime.'
It is unnecessary to refer to the act of Congress in relation to the delivery up of fugitives from justice, as Congress has just so much power and no more than is expressly given by the said clause in the Constitution-the Constitution is the best exponent of itself-what person then can be surrendered up by the Governor of one State to the Governor of another? First, He must be a person charged with Treason, Felony, or other crime; it is sufficient if he be charged with the commission of crime, either by indictment found or by affidavit. Second, 'He must be a person who shall flee from justice and be found in another State.' It is not sufficient to satisfy this branch of the Constitution, that he should be 'charged' with having fled from justice, unless he has actually fled from the State where the offence [offense] was committed to another State, the Governor of this State has no jurisdiction over his person and cannot deliver him up. When Mr. Smith is brought up on a Habeas Corpus, he will have a right, under the 3rd Sec of our Habeas Corpus Act, to introduce testimony and shew [show] that the 'process upon which he is arrested was obtained by false pretence [pretense],' that it is untrue, that he fled from the State of Missouri, to evade being brought to justice there, for the crime of which he is charged, he will have the right to place himself upon the platform of the Constitution of the United States, and say I am a citizen of the State of Illinois; I have not fled from the State of Missouri or from the 'justice' of that State, on account of the commission of the crime with which I am charged. I am ready to prove that the charge of having fled from that State is false, and I am not, therefore, subject under the Constitution of the United States to be delivered up to that State for trial.
You say in your letter to me that you doubt whether on a Habeas corpus the Court would have a right to try the question whether Smith was in Missouri at the time of the commission of the crime of which he is charged. To this I answer that upon a Habeas Corpus the Court would be bound to try the question whether Smith fled from justice from Missouri to this State; the affidavit of Mr. Boggs is not conclusive on this point-it may be rebutted-unless Smith is a person who has fled from justice he
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