Habeas corpus was a common law remedy that allowed authorized judges to review the legality of a prisoner’s detention. In habeas corpus hearings, courts did not have authority to acquit; they had authority only to remand prisoners to jail, set their bail, or discharge them from custody. Following a discharge, an individual could be rearrested and tried once the defective legal process was corrected. By presenting JS’s legal victories as acquittals, the ordinance implied that Missouri officials’ continued attempts to prosecute him violated the United States Constitution’s provision against double jeopardy. The Nauvoo Neighbor, in publishing the ordinance, explicitly complained that Missouri officials unconstitutionally “put Joseph Smith in jeopardy no less than four, or five times.” (Tucker, Blackstone’s Commentaries, 1:291–292; Kent, Commentaries on American Law, 2:25–27; U.S. Constitution, amend. V; “Public Meeting,” Nauvoo Neighbor, 13 Dec. 1843, [2].)

Tucker, St. George. Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia. 5 vols. Philadelphia: William Young Birch and Abraham Small, 1803.

Kent, James. Commentaries on American Law. Vol. 2. New York: O. Halsted, 1827.

In summer 1842, Missouri officials attempted to extradite JS based on his alleged involvement in the attempt to assassinate former governor Lilburn W. Boggs. After spending months in hiding to avoid arrest, JS submitted himself to authorities and obtained a writ of habeas corpus from the federal court in Springfield, Illinois, in December 1842. After a hearing on the writ in early January 1843, Judge Nathaniel Pope held that Missouri officials had not provided sufficient evidence that JS committed a crime in Missouri or that he fled from justice after the attempted assassination. Illinois governor Thomas Ford therefore revoked former governor Thomas Carlin’s proclamation calling for JS’s arrest. (“Circuit Court of the U. States for the District of Illinois,” Times and Seasons, 16 Jan. 1843, 4:65–71; Historical Introduction to Extradition of JS for Accessory to Assault.)

Times and Seasons. Commerce/Nauvoo, IL. Nov. 1839–Feb. 1846.

In 1840, Missouri officials attempted to extradite JS and five others based on their 1839 indictments for treason, burglary, and murder. Immediately after his arrest in Adams County, Illinois, in 1841, JS obtained a writ of habeas corpus. At the subsequent hearing before the Warren County Circuit Court, Judge Stephen A. Douglas discharged JS based on procedural issues surrounding the arrest warrant. (Historical Introduction to Extradition of JS et al. for Treason and Other Crimes; “The Late Proceedings,” Times and Seasons, 15 June 1841, 2:447–449.)

Times and Seasons. Commerce/Nauvoo, IL. Nov. 1839–Feb. 1846.

In June 1843, Missouri officials attempted to extradite JS based on a new treason indictment. After his arrest in Lee County, Illinois, JS obtained a writ of habeas corpus, after which he and his attorneys decided to go to Nauvoo, where he obtained a second writ of habeas corpus from the Nauvoo Municipal Court. The Nauvoo court discharged JS “for want of substance in the Warrant . . . as well as the merits” of the case. (Nauvoo Municipal Court Docket Book, 55–56; see also “Part 4: June–July 1843”; and Historical Introduction to Extradition of JS for Treason.)

A nolle prosequi (Latin for “we shall no longer prosecute”) is a formal notice that a case is being dropped or that the charges cannot be proved. In August 1840, the Boone County, Missouri, circuit attorney filed a dismissal for the Latter-day Saints indicted following the 1838 Missouri War, including JS. This left the state of Missouri free to revive charges later while avoiding violation of the Saints’ right to Missouri’s constitutional protection against double jeopardy. In June 1843, Missouri officials obtained a new treason indictment against JS. (“Nolle Prosequi,” in Bouvier, Law Dictionary, 2:216; Missouri Constitution of 1820, art. 13, sec. 10; Boone Co., MO, Circuit Court Records, 1821–1925, vol. C, pp. 316–317, microfilm 981,755, U.S. and Canada Record Collection, FHL; Indictment, Daviess Co., MO, [5] June 1843, State of Missouri v. JS for Treason [Daviess Co. Cir. Ct. 1843], Western Americana Collection, Beinecke Rare Book and Manuscript Library, Yale University, New Haven, CT.)

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.

U.S. and Canada Record Collection. FHL.

Indictment, June 1843, State of Missouri v. Joseph Smith for Treason [Daviess Co. Cir. Ct. 1843]. Western Americana Collection. Beinecke Rare Book and Manuscript Library, Yale University, New Haven, CT.

On 6 or 7 December 1843, a rumor reached Nauvoo that Missouri officials were planning a new extradition request. There was no substance to the rumor. (See Historical Introduction to Affidavit from Dellmore Chapman and Letter to Thomas Ford, 6 Dec. 1843.)

In July 1843, shortly after JS was discharged by the Nauvoo Municipal Court, he complained in a public sermon that Missouri officials’ attempts to extradite him had caused him “much trouble & expense.” The first extradition attempt cost JS $350 in attorney fees and $335 in travel and other expenses, and the second extradition attempt cost him $500 in attorney fees alone. The June 1843 extradition attempt resulted in $1,750 in attorney fees and over $1,300 in other expenses. (Discourse, 4 July 1843; Statement of Expenses to Thomas King, 30 Sept. 1841; JS, Journal, 6 Jan. 1843; Statement of Account, June 1843, copy, Emma Hale Smith Bidamon Financial Papers, 1843–1852, Bidamon Family Papers, CHL.)

See Constitution of the State of Illinois [1818], art. 8, sec. 1, in Public and General Statute Laws of the State of Illinois (1839), p. 33.

The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

Though the language of this clause suggests that the city council was referring to an existing legal requirement, it is unclear what that perceived requirement was. Illinois had a statute titled, in part, “for avoiding vexatious Law Suits,” but that law merely provided a statute of limitations for noncriminal legal actions. An affidavit from Willard Richards and Philip B. Lewis, taken earlier on 8 December 1843, called upon city officials to “prevent difficulties of such a vexatious nature.” JS and other Latter-day Saints had previously complained of “vexatious law suits” during earlier periods of legal turmoil, such as from 1837 to 1839. (An Act for the Limitation of Actions and for Avoiding Vexatious Law Suits [10 Feb. 1827], Public and General Statute Laws of the State of Illinois [1839], pp. 454–455; Willard Richards and Philip B. Lewis, Affidavit, Nauvoo, IL, 8 Dec. 1843, JS Office Papers, CHL; see also, for example, Motto, ca. 16 or 17 Mar. 1838.)

The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

The Nauvoo city charter granted the city council the ability to pass ordinances deemed necessary “for the peace, benefit, good order, regulation, convenience, and cleanliness” of the city. (Act to Incorporate the City of Nauvoo, 16 Dec. 1840.)