History, 1838–1856, volume D-1 [1 August 1842–1 July 1843]

  • Source Note
  • Historical Introduction
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commonly called the Mormon Prophet, was accessary before the fact of the intended [HC 5:226] murder, and that the said Joseph Smith is a citizen or resident of the State of .” This affidavit is certified by the Governor of to be authentic. The affidavit being thus verified, furnished the only evidence upon which the of could act Smith presented affidavits proving that he was not in at the date of the shooting of . This testimony was objected to by the Attorney General of— , 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 authorize the arrest in this case the affidavit should have stated distinctly. 1st. That Smith had committed a crime. 2nd. That he committed it in . It must appear that he fled from to authorize the Governor of 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 to warrant the of in ordering him to be sent to for trial. The 2nd 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 , the of could not cause him to be removed to that , unless it can be maintained <​that​> the State of—— can entertain jurisdiction of crimes committed in other States. The Affirmative of this proposition was taken in the argument with a zeal indicatingsincerity. 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 aegis 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 [HC 5:227] 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 furnished 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 where 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 would stand on this subject in the same relation to the State of , that Spain does to . In this particular the States are independent of each other. A criminal, fugitive from one State to another, 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—— [p. 1440]
commonly called the Mormon Prophet, was accessary before the fact of the intended [HC 5:226] murder, and that the said Joseph Smith is a citizen or resident of the State of .” This affidavit is certified by the Governor of to be authentic. The affidavit being thus verified, furnished the only evidence upon which the of could act Smith presented affidavits proving that he was not in at the date of the shooting of . This testimony was objected to by the Attorney General of— , 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 authorize the arrest in this case the affidavit should have stated distinctly. 1st. That Smith had committed a crime. 2nd. That he committed it in . It must appear that he fled from to authorize the Governor of 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 to warrant the of in ordering him to be sent to for trial. The 2nd 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 , the of could not cause him to be removed to that , unless it can be maintained that the State of—— can entertain jurisdiction of crimes committed in other States. The Affirmative of this proposition was taken in the argument with a zeal indicatingsincerity. 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 aegis 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 [HC 5:227] 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 furnished 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 would stand on this subject in the same relation to the State of , that Spain does to . In this particular the States are independent of each other. A criminal, fugitive from one State to another, 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—— [p. 1440]
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