Warsaw Message/February 11, 1843/Page 1

PRINTED AND PUBLISHED BY GREGG & SKINNER. --- TERMS. For 1 Year, $2,00 For 6 Months, 1,00 For 3 Months, .30 Single Numbers, Six Cents. --- ON THE CASH SYSTEM. --- ADVERTISEMENTS Conspicuously inserted at the following rates-- One Square, First Insertion $1.00 Each Subsequent One, 23 A liberal discount made to yearly advertisers--Terms made known on application. No paper will be sent out of Hancock county until paid for--and to no person in it, except when a special arrangement has been made to the contrary. All letters and communications, to ensure attention, must be post paid. Legal Notices must in all cases be paid for, before certificates of publication will be given. --- BOOK, JOB, AND PAMPHLET WORK, Done in Good Style, and on Moderate Terms LEGAL OPINION. OPINION Of His Honor, NATHANIEL POPE, Judge of the United States Circuit Court for the District of Illinois, Delivered at the Dec. Term, A. D. 1842. --- EXPARTE JOSEPH SMITH, ON HABEAS CORPUS. --- [We insert this week, to the exclusion of much other useful matter, the correct and able opinion of Judge Pope, in the case of the arrest of Smith, on the demand made by the Governor of Missouri. The important principles there laid down render it a document worthy of preservation for future reference.] --- This case came before Judge Pope, on the 4th of January last, on a writ of Habeas Corpus, sued out of the United States Circuit Court, at the instance of Smith, and served on William F. Elkin, Sheriff of Sangamon county. The Sheriff made return, that he held said Smith by virtue of a warrant issued by the Governor of the State of Illinois, on a requisition made by the Governor of Missouri, on the affidavit of Liburn W. Boggs, copies of which were annexed. The Counsel on behalf of the State filed objections denying the jurisdiction of the Court--which were overruled. The case was argued by Justin Butterfield, Esq., of Chicago, and Benjamin S. Edwards, Esq., of Springfield, on the part of Smith, and by Josiah Lamborn, Esq., Attorney General of the State of Illinois, on behalf of the State. OPINION. The importance of this case, and the consequences which may flow from an erroneous precedent, affecting the lives and liberties of our citizens, have impelled the Court to bestow upon it the most anxious consideration. The able arguments of the Counsel for the respective parties, have been of great assistance in the examination of the important question arising in this cause. When the patriots and wise men who framed our constitution were in anxious deliberation to form a perfect union among the States of the confederacy, two great sources of discord presented themselves to their consideration: the commerce between the States, and fugitives from justice and labor. The border collisions in other countries had been seen to be a fruitful source of war and bloodshed, and most wisely did the Constitution confer upon the National Government, the regulation of those matters, because of its exemption from the excited passions awakened by conflicts between neighboring States, and its ability alone to adopt a uniform rule, and establish uniform laws among all the States in these cases. This case presents the important question arising under the constitution and laws of the Unites States, whether a citizen of the State of Illinois can be transported from his own State to the State of Missouri, to be there tried for a crime, which, if he ever committed was committed in the State of Illinois; whether he can be transported to Missouri, as a fugitive from justice, when he has never fled from that State. Joseph Smith is before the Court, on habeas corpus, directed to the Sheriff of Sangamon county, State of Illinois, professedly issued in pursuance of the Constitution and laws of the United States, and of the State of Illinois, ordering said Smith to be delivered to the agent of the Executive of Missouri, who had demanded him as a fugitive from justice, under the 2d section, 4th article of the Constitution of the United States, and the act of Congress passed to carry into effect that article. The article is in these words, viz: '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.' The act of Congress made to carry into effect this article, directs that the demand be made on the Executive of the State where the offender is found, and prescribes the proof to support the demand vix: Indictment or affidavit. The Court deemed it respectful to inform the Governor and Attorney General of the State of Illinois, of the action upon the habeas corpus; on the day appointed for the hearing, the Attorney General of the State of Illinois, appeared, and denied the jurisdiction of the Court to grant the habeas corpus. 1st. Because the warrant was not issued under color or by authority of the United States, but by the State of Illinois. 2d. Because no habeas corpus can issue in this case from either the Federal or State Courts, to enquire into facts behind this writ. In support of the first point, a law of Illinois was read, declaring that whenever the Executive of any other State shall demand of the Executive of this State, any person, as a fugitive from justice, and shall have complied with the requisition of the act of Congress in that case made and provided, it shall be the duty of the Executive of this State to issue his warrant to apprehend the said fugitive, &c. It would seem that this act does not purport to confer any additional power upon the Executive of this State, independent of the power conferred by he Constitution and Laws of the United States, but to make it the duty of the Executive to obey and carry into effect the act of Congress. The warrant onto its face purports to be issued in pursuance of the Constitution and laws of the United States, as well as of the State of Illinois. To maintain the position that this warrant was not issued under color or by authority of the laws of the United States, it must be proved, that the United States could not confer the power on the Executive of Illinois. Because if Congress could and did confer it, no act of Illinois could take it away, for the reason that the Constitution and Laws of the United States passed in pursuance of it, and treaties, are the Supreme law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding. This is enough to dispose of that point. If the Legislature of Illinois, as is probable, intended to make it the duty of the Governor to exercise the power granted by Congress, and no more, the Executive would be acting by authority of the United States. It may be that the Legislature of Illinois, appreciating the importance of the proper execution of those laws,k and doubting whether the Governor could be punished for refusing to carry them into effect, deemed it prudent to impose it as a duty, the neglect of which would expose him to impeachment. If it intended more, the law is unconstitutional and void.--16 Peters 614 Prigg vs. Pensylvania. In supporting the second point the Attorney General seemed to urge that there was greater sanctity in a warrant issued 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 action, as obligatory upon the 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 arbitary monarch and that it was billed as a second Magna Charta, and that it was to protect the subject from arbitary imprisonment by the King and his minions, which brought into existance that great Palladium of liberty in the latter part of the reign of Charles the Second. It was indeed a magnificent achievement over arbitrary power. Magna Charta established the principles of liberty; the Habeas Corpus protected them. It matters not how great or obscure the prisoner, how great or obscure the prison-keeper, this munificient writ, wielded by an independent Judge, reaches all. It penetrates, alike the Royal Towers and the local prisons, from the garret to the secret recesses of the dungeon.--All doors fly open at its command, and the shackles fall from the limbs of prisoners of State as readily as from those committed by subordinate officers. The warrant of the King and his Secretary of State could claim no more exemption from that searching inquiry, 'The cause of his caption and detention,' than 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 exercise powers not granted. This is true. But the grant is to be found in the 2d section of the 3d article of the Constitution of the United States. 'The Judicial power shall extend to all cases in law or equity, arising under this Constitution, the laws of the United States, and treaties made and which shall be made under their authority.' The matter under consideration presents a case arising under the 2d section,

4th article of the Constitution of the United States, and the act of Congress of February 12, 1793, to carry it into effect. The Judiciary act of 1789 confers on this Court (indeed, on all the Courts of the United States,) power to issue the writ of Habeas Corpus, when a person is confined 'under color of or by the authority of the United States.' Smith is in custody under color of, and by the authority of the 2d sec. 4th art. of the Constitution of the United States. As to the instrument employed or authorized to carry into effect that article of the Constitution (as he derives from it the authority to issue the warrant) he must be regarded as acting by the authority of the United States. The power is not official in the Governor, but personal. It might have been granted to any one else by name, but considerations of convenience and policy recommended the selection of the Executive, who never dies. The citizens of the States are citizens of the United States; hence the U. States are as much bound to afford them protection in their sphere, as the States are in their's. This Court has jurisdiction. Whether the State Courts have jurisdiction or not, this Court is not called upon to decide. The return of the Sheriff shows that he has arrested and now holds Smith, in virtue of a warrant issued by the Governor of Illinois, under the 2d section of the 4th article of the Constitution of the United States, relative to fugitives from justice, and the act of Congress passed to carry it into effect. The article of the Constitution does not designate the person upon whom the demand for the fugitive shall be made; nor does it prescribe the proof upon which he shall act. But Congress has done so. The proof is 'an indictment or affidavit,' to be certified by the Governor demanding. The return brings before the Court the warrant, the demand and the affidavit. The material part of the latter is in these words, viz:--'Lilburn W. Boggs, who being duty sworn, doth depose and say that on the night of the sixth day of May, 1812, while sitting in his dwelling in the town of Independence, in the county of Jackson, he was shot with intent to kill, and that his life was despaired of for several days, and that he believes and has good reason to believe from evidence and information now in his possession, that Joseph Smith, commonly called the Mormon prophet, was accessary before the fact of the intended 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 Missouri at the date of the shooting of Boggs. This testimony was objected to by the Attorney General of Illinois, on the ground that the Court could not look behind the return. The Court deems it unnecessary to decide that point, inasmuch as it thinks Smith entitled to his discharge for defect in the affidavit. To authorise the arrest in this case the affidavit should have stated distinctly, 1st, That Smith had committed a crime. 2d, That he committed it in Missouri. It must appear that he fled from Missouri to authorize the Governor of Missouri to demand him, as none other than the Governor of the State from which he fled can make the demand. He could not have fled from justice, unless he committed a crime, which does not appear. It must appear that the crime was committed in Missouri to warrant the Governor of Illinois in ordering him to be sent to Missouri for trial. The 2d section, 4th article declares he 'shall be removed to the State having jurisdiction of the crime.' As it is not charged that the crime was committed by Smith in Missouri, the Governor of Illinois could not cause him to be removed to that State, unless it can enter tain jurisdiction of crimes committed in other States. The affirmative of this proposition was taken in the argument with zeal indicating sincerity. But no adjudged case or dictum was adduced in support of it. The Court conceives that none can be. Let it be tested by principle. Man in a state of nature is a sovereign, with all the prerogatives of King, Lords and Commons. He may declare war and make peace, and as nations often do who 'feel power and forget right,'--may oppress, rob and subjugate his weaker and unoffending neighbors. He unites in his person the legislative, judicial and executive power--can do no wrong, because there is none to hold him to account.--But when he unites himself with a community, he lays down all the prerogatives of sovereign (except self-defence,) and becomes a subject. He owes obedience to its laws and the judgments of its tribunals which he is supposed to have participated in establishing, either directly or indirectly. He surrenders also the right of self-redress. In consideration of all which, he is entitled to the ægis of that community to defend him from wrongs. He takes upon himself no allegiance to any other community, so owes it no 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 be a gross violation of the social compact if the State were to deliver up one of its citizens to be tried and punished by a foreign State, to which he owes no allegiance and whose laws were never binding on him. No State can or will do it. In the absence of the constitutional provision, the State of Missouri would stand on this subject in the same relation to the State of Illinois, that Spain does to England. In this particular the States are independant of each other. A criminal, fugitive from the one State to the other, could not be claimed as of right to be given up. It is most true as mentioned by writers on the laws of nations that every state is responsible 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. But for this, the involability of territory, or private dwelling, could not be maintained. This obligation creates the right, and makes it the duty of the State to impose such restraints upon the citizen as the occasion demands. It was in the performance of this duty, that the United States passed laws to restrain the citizens of the United States from setting on foot and fitting on military expeditions against their neighbors. While the violators of this law kept themselves within the United States, their conduct was cognizable in the courts of the United States and not of the offended State, even if the meaes provided had assisted in the invasion of the foreign State. A demand by the injured State upon the United States for the offenders, whose operation were in their own country, would be answered, that the United Stats' laws alone could act upon them, and that as a good neighbor it would punish them. It is the duty of the State of Illinois, to make it criminal in one of its citizens to aid, abet counsel, or advise, any person to commit a crime in her sister State,--any one violating the law would be amenable to the laws of Illinois, executed by its own tribunals. Those of Missouri could have no agency in his conviction and punishment. But if he shall go into Missouri, he owes obedience to her laws, and is liable before her courts, to be tried and punished for any crime he may commit there and a plea that he was a citizen of another State, would not avail him. If he escape, he may be surrendered to Missouri for trial. But when the offence is perpetrated in Illinois, the only right of Missouri, is, to insist that Illinois, compel her citizens to forbear to annoy her. This she has a right to expect;--for the neglect of it nations go to war and violate territory. The court must hold that where a necessary fact is not stated in the affidavit, it does not exist. It is not averred that Smith was accessary before the fact, in the State of Missouri: nor that he committed a crime in Missouri,--did not flee from Missouri to avoid punishment. Again, the Affidavit charges the shooting on the 6th of May in the County of Jackson and State of Missouri, 'that he believes and has good reason to believe, from evidence and information now (then) in his possession, that Joseph Smith was accessary before the fact, and is a resident or citizen of Illinois.' There are several objections to this. Mr. Boggs having the 'evidence and information is his possession,' should have incorporated it in the affidavit to enable the Court to judge of their sufficiency to support his 'belief.'--Again, he swears to a legal conclusion when he says that Smith was accessary before the fact. What acts constitute a man an accessary is a question of law and not always of easy solution. Mr. Boggs' opinion, then, is not authority. He should have given the facts. He should have shown that they were committed in Missouri, to see if they amounted to a crime. Again, the affidavit is fatally defective in this, that Boggs swears to this belief. The language in the Constitution is 'charged with felony, or other crime.' Is the Constitution satisfied with a charge upon suspicion? It is to be regretted that no American adjudged case has been cited to guide the Court in expounding this article. Language is ever interpreted by the subject matter. If the object were to arrest a man near home, and there were fears of escape if the movement to detain him from examination were known the word charged might warrant the issuing of a capias on suspicion. Rudyard (reported in Skin. 676) was committed to Newgate for refusing to give bail for his good behavior, and was brought before the Common Pleas on Habeas Corpus. The return was that he had been complained of for exciting the subjects to disobedience of the laws against seditious conventicles, and upon examination they found cause to suspect him. Vaugn, Chief Justice 'Tyrrel and Archer against Wild held the return insufficient, '1st because it did not appear but that he might abet frequenters of conventicles in the way the law allows. 2d, To say that he was complained of or was examined, is no proof of his guilt. And then to say that he had cause to suspect him is too cautious; for who can tell what they count a cause of suspicion, and how can that ever be tried? At this rate they would have arbitrary power upon their own allegation, to commit whom they please. From this case it appears that suspicion

does not warrant a commitment, and that all legal intendments are to avail the prisoner. That the return is to be most strictly constructed in favor of liberty. If suspicion in the foregoing case did not warrant a commitment in London by its officers, of a citizen of London, might not the objection be urged with greater force against a commitment of a citizen of our State to be transported to another on suspicion? No case can arise demanding a more searching scrutiny into the evidence than in cases arising under this part of the constitution of the United States. It is proposed to deprive a freeman of his liberty; to deliver him into the custody of strangers, to be transported to a foreign State, to be arraigned for trial before a foreign tribunal, governed by laws unknown to him; separated from his friends, his family and his witnesses, unknown and unknowing. Had he an immaculate character, it would not avail him with strangers. Such a spectacle is appalling enough to challenge the strictest analysis. The framers of the Constitution were not insensible of the importance of courts possessing the confidence of the parties. They therefore provided that citizens of different States, might resort to the federal courts in civil causes. How much more important that the criminal have confidence in his Judge and Jury? Therefore, before the capias is issued, the officers should see that the case is made out to warrant it. Again Boggs was shot on the 6th of May. The affidavit was made on the 20th of July following. Here was time for enquiry, which would confirm into certainty or dissipate his suspicions. He had time to collect facts to be laid before a grand jury, or be incorporated in this affidavit. The court is bound to assume that this would have been the course of Mr. Boggs, but that his suspicions were light and unsatisfactory. The affidavit is insufficient, 1st, Because it charges no crime. 3d, It charges no crime committed in the State of Missouri. Therefore he did not flee from the justice of the State of Missouri, nor has he taken refuge in the State of Illinois. The proceedings in this affair from the affidavit in the arrest affords a lesson to Governors and Judges whose action may hereafter be invoked in cases of this character. The affidavit simply says that the affiant was shot with intent to kill, and he believes that Smith was accessary before the fact to the intended murder, and is a citizen or resident of the State of Illinois. It is not said who sot him, or that the person was unknown. The Governor of Missouri in his demand calls Smith a fugitive from justice, charged with being accessary before the fact to an assault with intent to kill, made by one O. P. Rockwell, on Lilburn W. Boggs, in this State (Missouri.) This Governor expressly refers to the affidavit as his authority for that statement. Boggs in his affidavit does not call Smith a fugitive from justice, nor does he state a fact from which the Governor had a right to infer it. Neither does the name of O. P. Rockwell appear in the affidavit, nor does Boggs say Smith fled. Yet the Governor says he has fled to the State of Illinois. But Boggs only says he is a citizen or resident of the State of Illinois. The Governor of Illinois responding to the demand of the Executive of Missouri, for the arrest of Smith, issues his warrant for the arrest of Smith, reciting that 'whereas Joseph Smith stands charged by the affidavit of Lilburn W. Boggs with being accessary before the fact to an assault with intent to kill, made by one O. P. Rockwell on Lilburn W. Boggs, on the night of the 6th day of May, 1842, at the county of Jackson, in said State of Missouri, and that the said Joseph Smith has fled from the justice of said State, and taken refuge int he State of Illinois.' Those facts do not appear by the affidavit of Boggs. On the contrary it does not assert that Smith was accessary to O. P. Rockwell; nor that he had fled from the justice of the State of Missouri, and taken refuge in the State of Illinois. The Court can alone regard the facts set forth in the affidavit of Boggs, as having any legal existance. The mis-recitals and over statements in the requisition and warrant, are not supported by oath, and cannot be received as evidence to deprive a citizen of his liberty, and transport him to a foreign State for trial. For these reasons Smith must be discharged. At the request of J. Butterfield, counsel for Smith, it is proper to State in justice to the present Executive of the State of of Illinois, Governor Ford, that it was admitted on the argument, that the warrant which originally issued upon the said requisition, was issued by his predecessor; that when Smith came to Springfield to surrender himself up, upon that warrant, it was in the hands of the person to whom it had been issued at Quincy in this State and that the present warrant, which is a copy of the former one, was issued at the request of Smith, to enable him to test its legality by writ of Habeas Corpus. Let an order be entered that Smith be discharged from his arrest. --- Rev. Dr. Palfry has retired from the editorial chair of the North American Review, and been succeeded by Mr. Bowen.

GEN. JACKSON'S LETTER. 'National Intelligencer--Extract from the Letters of a Kentuckian on Martial Law.' Sir:--I have just received from a friend the National Intelligencer of the 12th December, containing a lengthy publication under the above caption. The statement in that publication, so far as it regards myself, being a tissue of falsehoods and false coloring, I have felt myself compelled to reply to it, lest my silence should be construed into an acknowledgment of its truth. I therefore request that you will give place to the following statement in the Nashville Union. 1st. It is positively untrue that I either trust the members of the Legislature out of their hall, or that I kept them out by an armed force. On the 28th December, 1814, when the troops under my command, were engaged with the enemy and I was passing along the line to give orders, Mr. A. L. Duncan, one of my voluntary aids-de-camp, came to me in great haste with a message from the Governor, that the Legislature were about to surrender the city, and that he waited my orders. I replied, 'I cannot believe them guilty of so traitorous an act; but say to the Governor, 'examine strictly into the matter, and if it is true, blow them up.' The Governor shut them out. Not such my orders would have been; and in conversation with the Governor afterwards, I remarked to him that I would have shut them in, provided them all necessaries, and let them, if so disposed, legislate at their leisure, under the sound of the British cannon, while their patriotic colleagues were nobly battling with the enemy. 2d. Louallier and Judge Hall were both arrested on the 5th of March. On the same day I was told by the Marshal that, in order hereafter to show that I had imprisoned the Judge before he had interfered with the police of my camp, the Judge had sent for the Clerk, and had altered the record from the 5th to the 6th. I immediately sent for the Clerk, Major Claiborne, and on the evening of the same day on which Louallier and Hall were arrested, viz: the 5th of March--he produced the record, on which plainly appeared the alteration from the 5th to the 6th.--This change could only have been made for the base purpose of showing, when he indicted or sued me for false imprisonment, that I had arrested him before he had attempted judicially to interfere with the police of my camp. This learned 'Kentuckian,' not withstanding his great anxiety to exonerate the Judge from any imputation of blame in this transaction, can hardly have the effrontery to say that this was not a forgery, and for the basest purpose. I would like to see the testimony by which, this anonymous writer would prove that I ordered the arrest of Messrs. Lewis and Dick. Judge Lewis was a soldier in Capt. Beal's company of riflemen, and on all occasions, from the beginning of the siege to the declaration of peace was meeting or ready to meet the foe, and defend his country. Dick (if my recollection does not fail me) was one of the troop of cavalry under command of Peter Ogden. It is not to be supposed that either of them would attempt to interfere with, or resist the order of his General. Had such interference or resistance been attempted by them, they would certainly have been treated similarly to Judge Hall. Neither Lewis nor Dick was arrested; nor did I ever before hear that either of them had interfered until after the order imposing martial law was revoked, and Judge Hall had returned. Then Dick and Hall commenced the prosecution against me, the Judge presiding on his own cause, imposing rules to appear and show cause why an attachment should not issue, and then refusing to hear the cause tendered under his own rules, but condemning his own victim unheard. Will this enlightened 'Kentuckian' determine whether or not this was administering justic eaagreeably to the constitutional right of every American citizen? On the subject of Louallier's arrest, it should be known that he secreted himself from the issuing of the order for his arrest until he had arrangements with Judge Hall for the habeas corpus; and when arrested and delivered to the Colonel of the provost guard being told that I had given directions for his good treatment, he replied with thanks, that it was unnecessary as he would be there but a short time.--He was asked why? His reply was that Judge Hall had issued a writ of habeas corpus for him, on which Colonel Arbuckle wrote to me asking advice. I directed him to keep the prisoner as long as he could wield a bayonet, unless he was liberated by my order. Having made inquiry into the matter and found that Hall had so issued the writ, I forthwith gave orders for the arrest of Dominick A. Hall, and sent Captain Butler, of South Carolina, and Dr. William Butler, with a file of men for that purpose. 2d. It is positively false that Judge Hall was confined until the militia were discharged. The moment of the official announcement of the ratification of the treaty reached me, the order of martial law was revoked, and the militia discharged. I never before heard of any publication made by Judge Hall, such as this veracious Kentuckian asserts was made; nor do