| 757 It is but fair to Governor Ford to give his account of these events. His account also contains some items of historical value.
It is as follows:-
"On the 23d or 24th day of June, Joseph Smith, the Mayor of Nauvoo, together with his brother Hyrum, and all the members of the council, and all others demanded, came into Carthage and surrendered themselves prisoners to the constable, on the charge of riot. They all voluntarily entered into a recognizance before the justice of the peace for their appearance at court to answer the charge. And all of them were discharged from custody, except Joseph and Hyrum Smith, against whom the magistrate had issued a new writ, on a complaint for treason. They were immediately arrested by the constable, on this new charge, and retained in his custody, to answer it.
"The overt act of treason charged against them consisted in the alleged levying of war against the State by declaring martial law in Nauvoo, and in ordering out the legion to resist the posse comitatus. Their actual guiltiness of the charge would depend upon circumstances. If their opponents had been seeking to put the law in force in good faith, and nothing more, then an array of a military force in open resistance to the posse comitatus and the militia of the State, most probably would have amounted to treason. But if those opponents merely intended to use the process of the law, the militia of the State, and the posse comitatus, as catspaws to compass the possession of their persons for the purpose of murdering them afterwards, as the sequel demonstrated the fact to be, it might well be doubted whether they were guilty of treason.
"Soon after the surrender of the Smiths, at their request
"That, in making up their verdict, they will exclude from their consideration all that was testified by Daniels, Brackenbury, and Miss Graham (witnesses).
"That, whenever the probability is of a definite and limited nature, whether in the proportion of one hundred to one, or of one thousand to one, or any ratio, is immaterial, it cannot be safely made the ground of conviction; for to act upon it in any case, would be to decide that for the sake of convicting many criminals the life of an innocent man might be sacrificed. (Starkie. 508)"-Gregg, pp. 300, 301.
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