TREASON OR NO TREASON. 175
march on the town with the small force under his command, but was dissuaded. He hesitated to make a further call on the militia, as the harvest was nigh and the men were needed to gather it. Meanwhile, ascer- taining that the Mormons had three pieces of cannon and two hundred and fifty stand of arms belonging to the state, the possession of which gave offence to the gentiles, he demanded a surrender of the state arms, again promising protection.
On the 24th of June'^^ Joseph and Hyrum Smith, the members of the council, and all others demanded, proceeded to Carthage, gave themselves up, and were charged with riot. All entered into recognizances before the justice of the peace to appear for trial, and were released from custody. Joseph and Hyrum, however, were rearrested, and, saj^s Ford, were charged with overt treason, having ordered out the legion to resist the posse comitatus, though, as he states, the degree of their crime would depend on circum- stances. The governor's views on this matter are worthy of note. "The overt act of treason charged against them," he remarks, "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 cat's- paws to compass the possession of their persons for the purpose of murdering them afterward, as the
- ' Report, ut supra, 10-1 1 . In Times and Seasons, v. 560, it is stated that ' on
Monday, June 24th, after Ford had sent word that eighteen persons demanded on a warrant, among whom were Joseph Smith and Hyrum Smith, should be protected by the militia of the state, they in company with ten or twelve others start for Carthage. '
