History of the Church, Volume VI (pp. 533-537)
HEADQUARTERS CARTHAGE, June 22nd, 1844.
To the Mayor and Council of the City of Nauvoo:
GENTLEMEN.-After examining carefully all the allegations on the part of the citizens of the country in Hancock county, and the defensive matters submitted to me by the committee of your citizens concerning the existing disturbances, I find that there appears to be but little contradiction as to important facts, so that it may be safely assumed that the immediate cause of the existing excitement is the destruction of the press and Nauvoo Expositor, and the subsequent refusal of the individuals accused to be accountable therefore according to the general laws of this state, and the insisting on your parts to be accountable only before your own municipal court, and according to the ordinances of your city.
Many other facts have been asserted on both sides as tending to increase the excitement; but as they mostly relate merely to private persons, and committed by individuals, and tend simply to show the present state of affairs, I will not further notice them in this communication.
The material facts to be noticed are that a newspaper called the Nauvoo Expositor was established in Nauvoo; that this newspaper was deemed offensive to the people of that city; that the Common Council, without notice or process to the owners, entered into a trial and heard statements not under oath, and evidence which was under oath, in relation to the character, conduct and designs of the owners and editors of the press; that, upon hearing such statements and evidence, the Common Council passed an ordinance or resolution declaring said press and paper to be a public nuisance, and ordered the same to be abated as such; that a writ was issued by the Mayor to the Marshal of the city for that purpose; that a military order was issued at the same time by the Mayor, who is also Lieutenant-General of the Nauvoo Legion, to the Major-General in command of that Legion, for a force sufficient to ensure the execution of the writ aforesaid.
It appears also the press was destroyed in obedience to the foregoing ordinance and writ, according to a return on the same by the Marshal in the following words: "The within press and type is destroyed and pied according to order on this 10th day of June, 1844, at about six o'clock p.m.-J. P. GREENE, C. M."
It appears also that the owners of the press obtained from a justice of the peace at Carthage a warrant against the authors of this destruction for a riot; that the constable charged with the execution of this process, arrested some of the persons accused, who immediately obtained writs of habeas corpus from the Municipal Court of your city, by virtue of which they were tried in Nauvoo and discharged from arrest, and that they have ever since refused to be arrested or to submit to a trial at any other place or before any other court, except in the city and before the Municipal Court aforesaid.
It has also been reported to me that martial law has been declared in Nauvoo; that persons and properly have been and are now forcibly imprisoned and detained there, and that the Legion has been ordered under arms to resist any attempt to arrest the persons accused. I have not particularly inquired into the truth of these latter reports; for although they may become matters of great importance in the sequel, they are not necessary to be ascertained and acted upon at present.
I now express to you my opinion that your conduct in the destruction of the press was a very gross outrage upon the laws and the liberties of the people. It may have been full of libels, but this did not authorize you to destroy it.
There are many newspapers in this state which have been wrongfully abusing me for more than a year, and yet such is my regard for the liberty of the press and the rights of a free people in a republican government that I would shed the last drop of my blood to protect those presses from any illegal violence. You have violated the Constitution in at least four particulars. You have violated that part of it which declares that the printing presses shall be free, being responsible for the abuse thereof, and that the truth may be given in evidence. This article of the Constitution contemplates that the proprietors of a libelous press may be sued for private damages, or may be indicted criminally, and that upon trial they should have the right to give the truth in evidence. In this case the proprietors had no notice of the proceeding.
The Constitution also provides that the people shall be protected against unreasonable searches and seizures of their property and "That no man shall be deprived of life, liberty or property, except by the judgment of his peers (which means a jury trial) and the law of the land,” which means due process of law and notice to the accused.
You have also violated the Constitution and your own charter in this: Your Council, which has no judicial powers, and can only pass ordinances of a general nature, have undertaken to pass judgment as a court and convict without a jury a press of being libelous and a nuisance to the city.
The Council at most could only define a nuisance by general ordinance, and leave it to the courts to determine whether individuals or particulars accused came within such definition.
The Constitution abhors and will not tolerate the union of legislative and judicial power in the same body of magistracy, because, as in this case, they will first make a tyrannical law, and then execute it in a tyrannical manner.
You have also assumed to yourselves more power than you are entitled to in relation to writs of habeas under your charter. I know that you have been told by lawyers; for the purpose of gaining your favor that you have this power to any extent. In this they have deceived you for their own base purposes. Your charter supposes that you may pass ordinances, a breach of which will result in the imprisonment of the offender.
For the purpose of insuring more speedy relief to such persons, authority was given to the Municipal Court to issue writs of habeas corpus in all cases arising under the ordinances of the city.
It was never supposed by the Legislature, nor can the language of your charter be tortured to mean that a jurisdiction was intended to be conferred which would apply to all cases of imprisonment under the general laws of the state or of the United States, as well as the city ordinances.
It has also been reserved to you to make the discovery that a newspaper charged to be scurrilous and libelous may be legally abated or removed as a nuisance. In no other state, county, city, town or territory in the United States has ever such a thing been thought of before. Such an act at this day would not be tolerated even in England. Just such another act in 1830 hurled the king of France from his throne, and caused the imprisonment of four of his principal ministers for life. No civilized country can tolerate such conduct; much less can it be tolerated in this free country of the United States.
The result of my deliberations on this subject is, that I will have to require you and all persons in Nauvoo accused or sued to submit in all cases implicitly to the process of the court, and to interpose no obstacles to an arrest, either by writ of habeas corpus or otherwise; and that all of the people of the city of Nauvoo shall make and continue the most complete submission to the laws of the state, and the process of the courts and justices of the peace.
In the particular case now under consideration, I require any and all of you who are or shall be accused to submit yourselves to be arrested by the same constable, by virtue of the same warrant and be tried before the same magistrate whose authority has heretofore been resisted. Nothing short of this can vindicate the dignity of violated law and allay the just excitement of the people.
I am anxious to preserve the peace. A small indiscretion may bring on a war. The whole country is now up in arms, and a vast number of people are ready to take the matter into their own hands. Such a state of things might force me to call out the militia to prevent a civil war. And such is the excitement of the country that I fear the militia, when assembled, would be beyond legal control.
You are wrong in the first instance, and I can call out no portion of the militia for your defense until you submit to the law. You have made it necessary that a posse should be assembled to execute legal process; and that posse, as fast as it assembles is in danger of being imbued with the mobocratic spirit. If you, by refusing to submit, shall make it necessary to call out the militia, I have great fears that your city will be destroyed, and your people many of them exterminated.
You know the excitement of the public mind. Do not tempt it too far. A very little matter may do a very great injury; and if you are disposed to continue the causes of excitement and render a force necessary to coerce submission, I would say that your city was built, as it were, upon a keg of powder which a very little spark may explode.
It is my intention to do all I can to preserve the peace, and even, if obliged, to call the militia to prosecute the war so as not to involve the innocent and comprehend all in the same punishment. But excitement is a matter which grows very fast upon men when assembled. The affair, I much fear, may assume a revolutionary character, and the men may disregard the authority of their officers.
I tell you plainly that if no such submission is made as I have indicated, I will be obliged to call out the militia; and if a few thousand will not be sufficient, many thousands will be.
I sincerely hope that your people may do nothing which will make such a proceeding necessary. I hope also that they will be well disposed to co-operate with me in allaying the excitement of the public mind. Immediately discharge such persons as you have under martial law. Let them go without molestation. Abstain from all injury to private property. Let people go where they please without swearing them first to take no part against you. All such proceedings tend only to inflame the public mind, and raise up ten men disposed to fight you for everyone thus foolishly disabled.
Your committee assures me that you are sincerely desirous of preserving the peace; and if so, I hope you will co-operate with me in everything necessary to allay the excitement in the minds of the people.
The following-named persons are reported to me as being detained against their will by martial law: John A. Hicks, H. O. Norton, A. J. Higbee, John Eagle, P. J. Rolf, Peter Lemon, and T. J. Rolf. It will tend greatly to allay excitement if they shall be immediately discharged and suffered to go without molestation.
It is also reported here, and generally believed, (but whether true or not I have not yet learned) that there are many foraging parties abroad from Nauvoo committing depredations upon the cattle and properly in the vicinity. These acts, if correctly reported, must absolutely cease immediately, if you expect any person here to have the power to preserve the peace.
In case the persons accused should make no resistance to arrest, it will be against orders to be accompanied by others. If it should become necessary to have witnesses on the trials, I will see that such persons shall be duly summoned, and I will also guarantee the safety of all such persons as may thus be brought to this place from Nauvoo either for trial or as witnesses for the accused.
If the individuals accused cannot be found when required by the constable it will be considered by me as an equivalent to a refusal to be arrested, and the militia will be ordered accordingly.
I am, gentlemen, with great respect, your obedient servant,
Governor and Commander-in-Chief.