History Mormon Battalion Chapter 01 Section F

“In relation to the writ served upon us, we were willing to abide the consequences of our own acts, but were unwilling, in answering a writ of that kind, to submit to illegal exactions, sought to be imposed upon us under the pretense of law, when we knew they were in open violation of it. When that document was presented to me by Mr. Bettesworth, I offered, in the presence of more than twenty persons, to go to any other magistrate, either in our city, in Appanoose, or any other place where we should be safe, but we all refused to put ourselves into the power of a mob. What right had that constable to refuse our request? He had none according to law; for you know, Governor Ford, that the statute law in Illinois is, that the parties served with the writ `shall go before him who issued it, or some other justice of the peace.’ Why, then, should we be dragged to Carthage, where the law does not compel us to go? Does not this look like many others of our persecutions with which you are acquainted? And have we not a right to expect foul play? This very act was a breach of law on his part, an assumption of power that did not belong to him, and an attempt, at least, to deprive us of our legal and constitutional rights and privileges. What could we do, under the circumstances, different from what we did do? We sued for, and obtained a writ of habeas corpus from the municipal court, by which we were delivered from the hands of Constable Bettesworth; and brought before and acquitted by the municipal court. After our acquittal, in a conversation with Judge Thomas, although he considered the acts of the party illegal, he advised that, to satisfy the people, we had better go before another magistrate who was not in our Church. In accordance with his advice, we went before Esquire Wells, with whom you are well acquainted; both parties were present, witnesses were called on both sides, the case was fully investigated, and we were again dismissed. And what is this pretended desire to enforce law, and wherefore are these lying, base rumors put into circulation but to seek, through mob influence, under pretense of law, to make us submit to requisitions which are contrary to law and subversive of every principle of justice? And when you, sir, required us to come out here, we came, not because it was legal, but because you required it of us, and we were desirous of showing to you, and to all men, that we shrunk not from the most rigid investigation of our acts. We certainly did expect other treatment than to be immured in a jail at the instance of these men, and I think, from your plighted faith, we had a right so to expect, after disbanding our own forces, and putting ourselves entirely in your hands. And now, after having fulfilled my part, sir, as a man and an American citizen, I call upon you, Governor Ford, to deliver us from this place, and rescue us from this outrage that is sought to be practiced upon us by a set of infamous scoundrels.”

Governor Ford.-“But you have placed men under arrest, detained men as prisoners, and given passes to others, some of which I have seen.”

John P. Green, City Marshal.-“Perhaps I can explain. Since these difficulties have commenced, you are aware that we have been placed under very peculiar circumstances; our city has been placed under a very rigid police guard; in addition to this, frequent guards have been placed outside the city to prevent any sudden surprise, and those guards have questioned suspected or suspicious persons as to their business. To strangers, in some instances, passes have been given to prevent difficulty in passing those guards; it is some of these passes that you have seen. No person, sir, has been imprisoned without a legal cause in our city.”

Governor.-“Why did you not give a more speedy answer to the posse that I sent out?”

General Smith.-“We had matters of importance to consult upon; your letter showed anything but an amiable spirit. We have suffered immensely in Missouri from mobs, in loss of property, imprisonment, and otherwise. It took some time for us to weigh duly these matters; we could not decide upon matters of such importance immediately, and your posse were too hasty in returning; we were consulting for a large people, and vast interests were at stake. We had been outrageously imposed upon, and knew not how far we could trust any one besides, a question necessarily arose, how shall we come? Your request was that we should come unarmed. It became a matter of serious importance to decide how far promises could be trusted, and how far we were safe from mob violence.’

Colonel Geddes.-“It certainly did look, from all I have heard, from the general spirit of violence and mobocracy that here prevails, that it was not safe for you to come unprotected.”

Governor Ford.-“I think that sufficient time was not allowed by the posse for you to consult and get ready. They were too hasty; but I suppose they found themselves bound by their orders. I think, too, there is a great deal of truth in what you say, and your reasoning is plausible, but I must beg leave to differ from you in relation to the acts of the City Council. That Council, in my opinion, had no right to act in a legislative capacity and in that of the judiciary. They should have passed a law in relation to the matter, and then the Municipal Court, upon complaint, could have removed it; but for the City Council to take upon themselves the law-making and the execution of the law, is, in my opinion, wrong; besides, these men ought to have had a hearing before their property was destroyed; to destroy it without was an infringement on their rights; besides, it is so contrary to the feelings of American people to interfere with the press. And, furthermore, I cannot but think that it would have been more judicious for you to have gone with Mr. Bettesworth to Carthage, notwithstanding the law did not require it. Concerning your being in jail, I am sorry for that; I wish it had been otherwise. I hope you will soon be released, but I can not interfere.”

Joseph Smith.-“Governor Ford, allow me, sir, to bring one thing to your mind that you seem to have overlooked. You state that you think it would have been better for us to have submitted to the requisition of Constable Bettesworth, and to have gone to Carthage. Do you not know, sir, that that writ was served at the instance of an `anti-Mormon’ mob, who had passed resolutions, and published them, to the effect that they would exterminate the `Mormon’ leaders? And are you not informed that Captain Anderson was not only threatened but had a gun fired at his boat by this said mob in War-saw when coming up to Nauvoo, and that this very thing was made use of as a means to get us into their hands; and we could not, without taking an armed force with us, go there without, according to their published declarations, going into the jaws of death? To have taken a force with us would only have fanned the excitement, and they would have stated that we wanted to use intimidation; therefore, we thought it the most judicious to avail ourselves of the protection of law.”

Governor Ford.-“I see, I see.”

Joseph Smith.-“Furthermore, in relation to the press, you say that you differ from me in opinion. Be it so; the thing, after all, is only a legal difficulty, and the courts, I should judge, are competent to decide on that matter. If our act was illegal, we are willing to meet it; and although I can not see the distinction that you draw about the acts of the City Council, and what difference it could have made in point of fact, law, or justice between the City Councils acting together or separate, or how much more legal it would have been for the Municipal Court, who were a part of the City Council, to act separately instead of with the councilors, yet, if it is deemed that we did a wrong in destroying that press, we refuse not to pay for it; we are desirous to fulfill the law in every particular, and are responsible for our acts. You say that the parties ought to have had a hearing. Had it been a civil suit, this of course, would have been proper; but there was a flagrant violation of every principle of right-a nuisance; and it was abated on the same principle that any nuisance, stench, or putrefied carcass would have been removed. Our first step, therefore, was to stop the foul, noisome, filthy sheet, and then the next in our opinion would have been to have prosecuted the man for a breach of public decency. And, furthermore, again let me say, Governor Ford, I shall look to you for our protection. I believe you are talking of going to Nauvoo; if you go, sir, I wish to go along. I refuse not to answer any law, but I do not consider myself safe here.”

Governor.-“I am in hopes that you will be acquitted, and if I go I will certainly take you along. I do not, however, apprehend danger. I think you are perfectly safe either here or anywhere else. I can not, however, interfere with the law. I am placed in peculiar circumstances, and seem to be blamed by all parties.”

Joseph Smith.-“Governor Ford, I ask nothing but what is legal; I have a right to expect protection, at least from you; for, independent of law, you have pledged your faith and that of the State for my protection, and I wish to go to Nauvoo.”

Governor.-“And you shall have protection, General Smith. I did not make this promise without consulting my officers, who all pledged their honor to its fulfillment. I do not know that I shall go to-morrow to Nauvoo, but if I do I will take you along.”

At a quarter past ten o’clock the governor left.

At about half past twelve o’clock, Mr. Reed, one of Joseph’s counsel, came in, apparently much elated; he stated that, upon an examination of the law, he found that the magistrate had transcended his jurisdiction, and that, having committed them without an examination, his jurisdiction ended; that he had him upon a pinhook; that he ought to have examined them before he committed them, and that having violated the law in this particular, he had no farther power over them; for, once committed, they were out of his jurisdiction, as the power of the magistrate extended no farther than their committal, and that now they could not be brought out except at the regular session of the Circuit Court, or by a writ of habeas corpus; but that if Justice Smith would consent to go to Nauvoo for trial, he would compromise matters with him, and overlook this matter.

Mr. Reed farther stated that the “anti-Mormons,” or mob, had concocted a scheme to get out a writ from Missouri, with a demand upon Governor Ford for the arrest of Joseph Smith, and his conveyance to Missouri, and that a man by the name of Wilson had returned from Missouri the night before the burning of the press for this purpose.

At half past two o’clock Constable Bettesworth came to the jail with a man named Simpson, professing to have some order, but he would not send up his name, and the guard would not let him pass. Dr. Bernhisel and Brother Wasson went to inform the governor and council of this. At about twenty minutes to three Dr. Bernhisel returned, and stated that he thought the governor was doing all he could. At about ten minutes to three Hyrum Kimball appeared with news from Nauvoo.

Soon after Constable Bettesworth came with an order from Esquire Smith to convey the prisoners to the court-house for trial. He was informed that the process was illegal, that they had been placed there contrary to law, and that they refused to come unless by legal process. I was informed that Justice Smith (who was also captain of the Casrthage Grays) went to the governor and informed him of the matter, and that the governor replied, “You have your forces, and of course can use them.” The constable certainly did return, accompanied by a guard of armed men, and by force, and under protest, hurried the prisoners to the court.

About four o’clock the case was called by Captain Robert F. Smith, J. P. The counsel for the prisoners called for subpoenas to bring witnesses. At twenty-five minutes past four he took a copy of the order to bring the prisoners from jail to trial, and afterwards he took names of witnesses.

Counsel present for the State; Higbee, Skinner, Sharp, Emmons, and Morrison. Twenty-five minutes to five the writ was returned as served, June 25th.

Many remarks were made at the court that I paid but little attention to, as I considered the whole thing illegal and a complete burlesque. Wood objected to the proceedings in toto, in consequence of its illegality, showing that the prisoners were not only illegally committed, but that, being once committed, the magistrate had no farther power over them; but as it was the same magistrate before whom he was pleading who imprisoned them contrary to law, and the same who, as captain, forced them from jail, his arguments availed but little. He then urged that the prisoners be remanded until witnesses could be had, and applied for a continuance for that purpose. Skinner suggested until twelve o’clock next day. Wood again demanded until witnesses could be obtained; that the court meet at a specified time, and that, if witnesses were not present, again adjourn, without calling the prisoners. After various remarks from Reed, Skinner, and others, the court stated that the writ was served yesterday, and that it will give until to-morrow at twelve M. to get witnesses.

We then returned to jail. Immediately after our return Dr. Bernhisel went to the governor, and obtained from him an order for us to occupy a large open room containing a bedstead. I rather think that the same room had been appropriated to the use of debtors; at any rate, there was free access to the jailer’s house, and no bars or locks except such as might be on the outside door of the jail. The jailer, Mr. George W. Steghall, and his wife, manifested a disposition to make us as comfortable as they could; we ate at their table, which was well provided, and, of course, paid for it.