History of the Church, Volume VI (pp. 538-541)
Letter: Joseph Smith to Governor Ford – Defending the action of the City Council in the “Expositor” Affair.
Nauvoo, June 22nd, 1844, 12 o'clock p.m.
To His Excellency, Thomas Ford:
SIR- Yours of this date is received by Messrs. Taylor and Bernhisel. A part of the fame delegation, Mr. Woodworth, who was detained yesterday, started for Carthage at 12 noon, this date, who, we perceive, had not arrived at your last date. Some documents conveyed by him would tend to counteract some of the views expressed in your Excellency’s communication, and we feel confident, if all the facts could be before your Excellency, you would have come to different conclusions.
Our "insisting to be accountable only before our own Municipal Court." is totally incorrect. We plead a habeas corpus as a last resort to save us from being thrown into the power of the mobocrats, who were then threatening us with death, and it was with neat reluctance we went before the Municipal Court, on account of the prejudice which might arise in the minds of the unbiased; and we did not petition for a habeas corpus until we had told the constable that on our lives we dare not go to Carthage for trial, and plead with him to go before any county magistrate he pleased in our vicinity, (which occurrence is common in legal proceedings) and not a member of our society, so that our lives might be saved from the threats thus already issued against us.
The press was declared a nuisance under the authority of the charter as written in 7th section of Addenda, the same as in the Springfield charter, so that if the act declaring the press a nuisance was unconstitutional, we cannot see how it is that the charter itself is not unconstitutional: and if we have erred in judgment, it is an official act, and belongs to the Supreme Court to correct it, and assess damages versus the city to restore property abated as a nuisance. If we have erred in this thing, we have done it in good company; for Blackstone on "Wrongs," asserts the doctrine that scurrilous prints may be abated as nuisances.
As to martial law, we truly say that we were obliged to call out the forces to protect our lives; and the Constitution guarantees to every man that privilege; and our measures were active and efficient, as the necessity or the case required; but the city is and has been continually under the special direction of the marshal all the time. No person, to our knowledge, has been arrested only for violation of the peace, and those some of our own citizens, all of whom we believe are now discharged.
And if any property has been taken for public benefit without a compensation, or against the will of the owner, it has been done without our knowledge or consent and when shown shall be corrected, if the people will permit us to resume our usual labors.
If we "have committed a gross outrage upon the laws and liberties of the people," as your Excellency represents, we are ready to correct that outrage when the testimony is forthcoming. All men are bound to act in their sphere on their own judgment, and it would be quite impossible for us to know what your Excellency's judgment would have been in the case referred to; consequently acted on our own and according to our best judgment, after having taken able counsel in the case. If we have erred, we again say we will make all right if we can have the privilege.
"The Constitution also provides that the people shall be protected against all unreasonable search and seizure." True. The doctrine we believe most fully, and have acted upon it; but we do not believe it unreasonable to search so far as it is necessary to protect life and property from destruction.
We do not believe in the "union of legislative and judicial power," and we have not so understood the action of the case in question.
Whatever power we have exercised in the habeas corpus has been done in accordance with the letter of the charter and Constitution as we confidently understood them, and that, too, with the ablest counsel; but if it be so that we have erred in this thing, let the Supreme Court correct the evil. We have never gone contrary to constitutional law, so far as we have been able to learn it. If lawyers have belied their profession to abuse us, the evil be on their heads.
You have intimated that no press has been abated as a nuisance in the United 8tates. We refer your Excellency to Humphrey versus Press in Ohio, who abated the press by his own arm for libel, and the courts decided on prosecution no cause of action. And we do know that it is common for police in Boston, New York, &c., to destroy scurrilous prints: and we think the loss of character by libel and the loss of life by mobocratic prints to be a greater loss than a little property, all of which, life alone excepted, we have sustained, brought upon us by the most unprincipled outlaws, gamblers, counterfeiters, and such characters as have been standing by me, and probably are now standing around your Excellency-namely, those men who have brought these evils upon us.
We have no knowledge of men's being sworn to pass our city. And upon receipt of your last message the Legion was disbanded and the city left to your Excellency's disposal.
How it could be possible for us now to be tried constitutionally by the same magistrate who first issued the writ at Carthage we cannot see, for the Constitution expressly says no man shall twice be put in jeopardy of life and limb for the same offense; and all you refer to, have been, since the issuance of the habeas corpus, complied with for the same offense, and trial before Daniel H. Wells, justice of the peace for Hancock county, and, after a full investigation, were discharged. But, notwithstanding this, we would not hesitate to stand another trial according to your Excellency's wish, were it not that we are confident our lives would be in danger. We dare not come. Writs, we are assured, are issued against us in various parts of the country. For what? To drag us from place to place, from court to court, across the creeks and prairies, till some bloodthirsty villain could find his opportunity to shoot us. We dare not come, though your Excellency promises protection. Yet, at the same time, you have expressed fears that you could not control the mob, in which case we are left to the mercy of the merciless. Sir, we dare not come, for our lives would be in danger, and we are guilty of no crime.
You say, "It will be against orders to be accompanied by others, if we come to trial." This we have been obliged to act upon in Missouri; and when our witnesses were sent for by the court, (as your honor promises to do) they were thrust into prison, and we left without witnesses. Sir, you must not blame us, for "a burnt child dreads the fire." And although your Excellency might be well-disposed in the matter, the appearance of the mob forbids our coming. We dare not do it.
We have been advised by legal and high-minded gentlemen from abroad, who came on the boat this evening to lay our grievances before the Federal Government, as the appearance of things is not only treasonable against us, but against the state on the part of Missouri, unless the same has been requested of Governor Ford by the Federal Government. And we suppose your Excellency is well aware by this time that the mass-meetings of the county declared utter extermination of the Mormons, and that the Legion was not called out until complaints were made to the Mayor, and the citizens were afraid of their lives, and losing their confidence in the authorities of the city, and that nothing on the part of the city authorities had been wanting, legally and judiciously, to allay excitement and restore peace. We shall leave the city forthwith to lay the facts before the General Government, and, as before stated, the city is left open and unprotected; and by everything that is sacred, we implore your Excellency to cause our helpless women and
children to be protected from mob violence, and let not the blood of innocence cry to heaven against you. We again say, if anything wrong has been done on our part, and we know of nothing, we will make all things right if the Government will give us the opportunity. Disperse the mob. and secure to us our constitutional privileges, that our lives may not be endangered when on trial.
I remain most respectfully, your Excellency's humble servant,
Mayor, and Lieut.-Gen. N. L.