Hugins appears to have cited section 51 of Illinois’s justice of the peace act, which stated that justices were authorized to appoint temporary constables before a regular constable could be located, “where there is a probability that a person charged with any indictable offence will escape.” The act further stated that temporary appointments “shall be made by a written endorsement, under the seal of the justice, deputing, on the back of the process,” meaning the warrant. Hugins may have cited this statute because Hickok was deputized by William Prentiss, the United States marshal for Illinois, rather than Pope, who made out the warrant. However, Prentiss deputized Hickok under a federal statute that allowed marshals “to appoint, as there shall be occasion, one or more deputies.” (An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Revised Laws of Illinois, p. 399, sec. 51; Nathaniel Pope, Warrant for Jeremiah Smith, Springfield, IL, 21 May 1844, United States v. Jeremiah Smith [D. Ill. 1844], copy, Nauvoo, IL, Records, CHL; An Act to Establish the Judicial Courts of the United States [24 Sept. 1789], Public and General Statutes [1840], p. 62, sec. 27.)

The Revised Laws of Illinois, Containing All Laws of a General and Public Nature Passed by the Eighth General Assembly, at Their Session Held at Vandalia, Commencing on the Third Day of December, 1832, and Ending the Second Day of March, 1833, together with All Laws Required to Be Re-Published by the Said General Assembly. Vandalia, IL: Greiner and Sherman, 1833.

The Public and General Statutes Passed by the Congress of the United States of America. From 1789 to 1836 Inclusive. . . . 2nd ed. Philadelphia: T. and J. W. Johnson, 1840.

Jeremiah Smith, Motion, Nauvoo, IL, 30 May 1844, United States v. Jeremiah Smith on Habeas Corpus–B (Nauvoo Mun. Ct. 1844), Nauvoo, IL, Records, CHL. Although Willard Richards referred to the filed document as a plea, Hugins used the language of a motion in the document’s text: “And now the said Jeremiah Smith moves the Court here that he be discharged & suffered to go at large.” A plea was a legal document used in civil suits in which the defendant responded to factual points in the plaintiff’s declaration. (See Historical Introduction to Plea, ca. 21 May 1844.)

The first point in the loose copy of the motion initially stated that “the Court issuing the warrant on which he has been arrested has exceeded the limits of its jurisdiction, as to the matter concerning which it has undertaken to act.” This language was taken from a section in the 1827 Illinois habeas corpus act that outlined scenarios in which a court could discharge a prisoner on habeas corpus. However, prior to submitting the motion to the court, Hugins and Stiles revised the point by adopting language from another provision in the habeas corpus act, which stated that a court could discharge a prisoner on a writ of habeas corpus in instances where the warrant “has been issued or executed by a person either unauthorized to issue or execute the same.” (Jeremiah Smith, Motion, Nauvoo, IL, 30 May 1844, United States v. Jeremiah Smith on Habeas Corpus–B [Nauvoo Mun. Ct. 1844], Nauvoo, IL, Records, CHL; An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois [1839], pp. 323–324, sec. 3.)

The Public and General Statutes Passed by the Congress of the United States of America. From 1789 to 1836 Inclusive. . . . 2nd ed. Philadelphia: T. and J. W. Johnson, 1840.

This point reproduced language from the Illinois habeas corpus statute, which stated that a court could discharge a prisoner on habeas corpus in instances “where the process, though in proper form, has been issued in a case, or under circumstances where the law does not allow process.” (An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 324, sec. 3.)

The Public and General Statutes Passed by the Congress of the United States of America. From 1789 to 1836 Inclusive. . . . 2nd ed. Philadelphia: T. and J. W. Johnson, 1840.

This point reproduced language from the Illinois habeas corpus statute, which stated that a court could discharge a prisoner on habeas corpus in instances where the warrant “has been issued or executed by a person either unauthorized to issue or execute the same, or where the person having the custody of the prisoner under such process is not the person empowered by law to detain him.” (An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 324, sec. 3.)

The Public and General Statutes Passed by the Congress of the United States of America. From 1789 to 1836 Inclusive. . . . 2nd ed. Philadelphia: T. and J. W. Johnson, 1840.

Hugins and Stiles referred to Jeremiah Smith’s appearance on 17 February 1844 before Judge Charles Mason of Iowa Territory’s First Judicial District, who discharged Smith from custody on the grounds that the prosecution failed “to establish the identity of Mr. Smith as the Jeremiah Smith named in the indictment.” (“Release from Arrest,” Iowa Territorial Gazette and Advertiser [Burlington], 24 Feb. 1844, [2], italics in original; Historical Introduction to Docket Entry, 18–31 May 1844.)

Iowa Territorial Gazette and Advertiser. Burlington, Iowa Territory. 1840–1846.

This point reproduced language from the 1827 Illinois habeas corpus statute, which stated that a court could discharge a prisoner appearing on a writ of habeas corpus in instances where the warrant “is defective in some substantial form required by law.” It is unknown why Hugins and Stiles believed Pope’s warrant was legally deficient. (An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 323, sec. 3.)

The Public and General Statutes Passed by the Congress of the United States of America. From 1789 to 1836 Inclusive. . . . 2nd ed. Philadelphia: T. and J. W. Johnson, 1840.

Willard Richards incorrectly used the term count to refer to the individual points made in Hugins and Stiles’s motion. Count was a technical term used in civil suits to refer to individual actions discussed in a plaintiff’s declaration. (“Count,” in Bouvier, Law Dictionary, 1:359.)

Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; With References to the Civil and Other Systems of Foreign Law. 2 vols. Philadelphia: Deacon and Peterson, 1854.

Hugins cited the provision in the United States Constitution for the extradition of fugitives from justice, which stated that “a Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” This provision, however, did not indicate who in the state to which the fugitive fled was authorized to issue a warrant for the defendant. In 1793 Congress passed a law requiring “the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured.” This suggests that Hugins was arguing that only Illinois governor Thomas Ford could issue a warrant for Jeremiah Smith. Given that Smith was charged with a federal crime, however, the law governing interstate extradition did not apply to his situation. (U.S. Constitution, art. 4, sec. 2; An Act Respecting Fugitives from Justice, and Persons Escaping from the Service of Their Masters [12 Feb. 1793], Public Statutes at Large, 2nd Cong., 2nd Sess., chap. 7, p. 302, sec. 1.)

The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845. . . . Edited by Richard Peters. 8 vols. Boston: Charles C. Little and James Brown, 1846–1867.

TEXT: Possibly “3d [illegible] file”.

Hugins cited an Illinois statute that outlined how a justice of the peace could appoint a temporary constable to serve a warrant. He also cited the Illinois habeas corpus statute. (An Act concerning Justices of the Peace and Constables [3 Feb. 1827], Revised Laws of Illinois, p. 399, sec. 51; An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Revised Laws of Illinois, p. 324, sec. 3.)

The Revised Laws of Illinois, Containing All Laws of a General and Public Nature Passed by the Eighth General Assembly, at Their Session Held at Vandalia, Commencing on the Third Day of December, 1832, and Ending the Second Day of March, 1833, together with All Laws Required to Be Re-Published by the Said General Assembly. Vandalia, IL: Greiner and Sherman, 1833.

TEXT: Possibly “see”.

Dunlap’s certificate summarized the February 1844 discharge of Jeremiah Smith by Judge Charles Mason of the First Judicial District in Iowa Territory. (John S. Dunlap, Certificate, Burlington, Iowa Territory, 21 May 1844, United States v. Jeremiah Smith [1st D. Iowa Terr., Des Moines Co. 1844], copy, Nauvoo, IL, Records, CHL.)