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Petition to Nauvoo Municipal Court, 30 June 1843 [Extradition of JS for Treason]
Source Note
Source Note
JS, Petition, , Hancock Co., IL, to Municipal Court, , Hancock Co., IL, 30 June 1843, Extradition of JS for Treason (Nauvoo, IL, Municipal Court 1843); handwriting of ; signature of JS; certified by , 30 June 1843; notation by , [, Hancock Co., IL], 30 June 1843; four pages; JS Collection, CHL. Includes notations and archival marking.
Bifolium measuring 9½ × 7¾ inches (24 × 20 cm). The leaves of the bifolium were separated along the fold except for approximately one inch at the top, presumably to facilitate continuous inscription by . Accordingly, the versos of both leaves were turned upside down for inscription. The petition was folded for filing and included in a packet of documents with a copy of the 17 June 1843 arrest warrant issued by governor and a copy of the 13 June 1843 power of attorney issued by governor . Unlike the other two documents, the petition lacks residue of adhesive wafers. There are pin holes at the top of the bifolium where it was subsequently attached to the two documents.
Municipal Court clerk certified and filed the document. The petition was presumably kept with Nauvoo city records until 1845, when the city of Nauvoo was disincorporated. Many if not most of the city records were listed in an inventory that was produced by the Church Historian’s Office (later Church Historical Department) in 1846, when they were packed up with church records that were taken to the Salt Lake Valley. The city records were also listed in inventories of church records created in 1855, 1878, and circa 1904. Andrew Jenson, who began working in the Church Historian’s Office in 1891 and served as assistant church historian from 1897 to 1941, added a notation on the final page. By 1973 the document had been included in the JS Collection at the Church Historical Department (now CHL). The notation and inclusion in city records and then the JS Collection indicate continuous institutional custody since the mid-1840s.
Footnotes
- [1]
“An Act to Repeal the Nauvoo Charter,” 14th General Assembly, 1844–1845, Senate Bill no. 35 (House Bill no. 42), Illinois General Assembly, Enrolled Acts of the General Assembly, 1818–2012, Illinois State Archives, Springfield.
Illinois General Assembly. Enrolled Acts of the General Assembly, 1818–2012. Illinois State Archives, Springfield.
- [2]
“Schedule of Church Records. Nauvoo 1846,” [1], Historian’s Office, Catalogs and Inventories, 1846–1904, CHL.
Historian’s Office. Catalogs and Inventories, 1846–1904. CHL. CR 100 130.
- [3]
“Inventory. Historian’s Office. 4th April 1855,” [1]–[2]; “Index of Records and Journals in the Historian’s Office 1878,” [11]; “Index to Papers in the Historians Office,” ca. 1904, 7, Historian’s Office, Catalogs and Inventories, 1846–1904, CHL.
Historian’s Office. Catalogs and Inventories, 1846–1904. CHL. CR 100 130.
- [4]
Jenson, Autobiography, 192, 389; Cannon, Journal, 9 Feb. 1891; Jenson, Journal, 9 Feb. 1891 and 19 Oct. 1897; Bitton and Arrington, Mormons and Their Historians, 47–52.
Jenson, Andrew. Autobiography of Andrew Jenson: Assistant Historian of the Church of Jesus Christ of Latter-day Saints. . . . Salt Lake City: Deseret News Press, 1938.
Cannon, George Q. Journals, 1855–1864, 1872–1901. CHL. CR 850 1.
Jenson, Andrew. Journals, 1864–1941. Andrew Jenson, Autobiography and Journals, 1864–1941. CHL.
Bitton, David, and Leonard J. Arrington. Mormons and Their Historians. Salt Lake City: University of Utah Press, 1988.
- [5]
See the full bibliographic entry for JS Collection, 1827–1844, in the CHL catalog.
Historical Introduction
Historical Introduction
On 30 June 1843, JS prepared a petition of directed to the municipal court in , Illinois, arguing that his recent arrest was unlawful. The arrest was part of the attempt by and state officials to have JS extradited to stand trial for allegedly committing treason during the 1838 conflict between the Latter-day Saints and other Missourians. On 17 June 1843, Illinois governor had issued a warrant for JS’s arrest, which was served on 23 June by Constable of , Illinois, near , Illinois. Wilson then transferred custody of JS to the agent authorized to convey JS to Missouri, Sheriff of , Missouri, who had accompanied him to make the arrest. In Dixon, JS hired local attorneys and , who were subsequently joined by congressional candidate and lawyer . JS and his attorneys initiated several legal actions intended to delay the extradition and potentially secure JS’s freedom.
These actions included obtaining a writ of habeas corpus, a legal remedy that was deeply rooted in English common law as a potent safeguard against wrongful incarceration. The writ commanded the arresting officer to present the prisoner before a judge or court and explain in a notation, called a “return,” the grounds upon which the prisoner was detained. If the court found the grounds for detention noted in the return to be insufficient, the prisoner would be set at liberty. The writ obtained in commanded Reynolds to present JS “before the nearest Judge or Judicial tribunal . . . authorised to hear and determine upon writs of Habeas Corpus” in the fifth judicial circuit of the state of . On 26 June 1843, JS, his captors, his attorneys, and a few others departed Dixon. Their stated destination was , Illinois, which was located within the fifth circuit and was also the residence of Illinois circuit judge . However, JS and his attorneys decided to appear before the Municipal Court rather than continue on to Quincy.
In 1840, the legislature granted the city of a charter that created the municipal court and gave it “power to grant writs of habeas corpus in all cases arising under the ordinances of the City Council.” Although the legislature evidently intended this provision to empower the municipal court to review the legality of detentions for alleged violations of local city ordinances only, the Nauvoo City Council subsequently passed an ordinance that substantially expanded the court’s habeas corpus powers. Under the new ordinance, the municipal court was allowed to “examine into the Origin, validity, & legality” of any arrest warrant, regardless of its originating jurisdiction, and to “fully hear the merits of the case.” There was considerable controversy in western Illinois during the early 1840s surrounding the Nauvoo Municipal Court’s expanded habeas corpus powers, but as no higher court had determined the legality of the city council’s ordinances granting those powers, it remained an unsettled legal question.
When realized that the traveling party was going to rather than continuing on to , he protested the move, arguing that the municipal court lacked jurisdiction over JS’s case. By that time, however, several members of the had joined the party, and Reynolds was unable to redirect the group. JS’s attorney later explained that JS’s counsel believed the “jurisdiction of said case was very properly entertained by said court,” although he acknowledged that Reynolds’s attorney—Edwin Mason—was “of a different opinion.” Southwick further argued that because “the language of the writ of habeas corpus” obtained in stated that the writ was returnable before the nearest court with habeas corpus powers within the fifth judicial circuit, the writ gave JS “the right to go before the municipal authority of said city.”
After arriving in on 30 June 1843, JS and his attorney prepared a petition for a new writ of habeas corpus. They may have done so because the writ that JS obtained in was issued in accordance with the habeas corpus statute, which authorized only the state supreme court and circuit courts to review detentions. The new petition was prepared according to provisions included in a Nauvoo city ordinance passed on 14 November 1842, which outlined the municipal court’s procedures for hearing cases on habeas corpus. The ordinance permitted prisoners held “for any criminal or supposed criminal matter” to submit a signed petition that described the facts of their imprisonment and identify the officer who detained them. The petition was also required to be accompanied by a copy of the warrant that held the prisoner in custody.
The petition listed ten challenges, some more substantive than others, to the legality of the warrant issued by and JS’s subsequent detention by and . The repeated use of the words purports and supposed to describe Ford’s warrant suggests that JS and his attorneys were skeptical of the warrant’s authenticity. Several of the objections listed in the petition alluded to previous attempts by officers to extradite JS in 1840–1841 and 1842–1843 and the legal arguments employed in the resulting habeas corpus proceedings. The objections also included JS and his attorneys’ understanding of the outcomes of those proceedings. After JS signed the document, it was certified by municipal court clerk .
In compliance with the November 1842 ordinance, the petition was accompanied by copies of the two documents under which JS was held in custody. The first was ’s 17 June arrest warrant that had used to arrest JS. The second was a power of attorney issued on 13 June by governor designating as the agent authorized to convey JS to Missouri. The copies of the documents that accompanied the petition are featured here along with the petition.
The municipal court assembled at two in the afternoon. Because JS, as mayor, ordinarily served as the municipal court’s chief justice, the court elected to serve as its president pro tempore. Marks and the court’s other justices jointly granted JS’s petition by issuing the writ of habeas corpus and then scheduled a hearing for the following morning. city marshal served the writ on , who released JS into the court’s custody for the hearing. Upon receiving the writ, Reynolds wrote on it a return notation explaining the grounds upon which he held JS in custody.
At the 1 July 1843 hearing, , , , , , and testified in support of JS. Although the witnesses discussed problems with the warrant, they focused primarily on the 1838 conflict and the unfair treatment of the Saints to demonstrate that JS was not guilty of committing treason. Subsequently, JS’s attorneys—, , and —addressed the court. At the conclusion of the hearing, the municipal court discharged JS “for want of substance in the warrant upon which he was arrested as well as upon the merits of said Case.”
Footnotes
- [1]
“Part 4: June–July 1843”; Clayton, Journal, 23 June 1843; Edward Southwick, St. Louis, MO, 12 July 1843, Letter to the Editor, Old School Democrat and Saint Louis Herald, 12 July 1843, [2]; JS History, vol. D-1, 1583–1584; Affidavit, 24 June 1843.
Clayton, William. Journals, 1842–1845. CHL.
Old School Democrat and Saint Louis Herald. St Louis, MO. 1843–1844.
- [2]
Kent, Commentaries on American Law, 2:25–31; “Habeas Corpus,” in Bouvier, Law Dictionary, 1:454–456; see also Walker, “Habeas Corpus in Early Nineteenth-Century Mormonism,” 5–8.
Kent, James. Commentaries on American Law. Vol. 2. New York: O. Halsted, 1827.
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.
Walker, Jeffrey N. “Habeas Corpus in Early Nineteenth-Century Mormonism: Joseph Smith’s Legal Bulwark for Personal Freedom.” BYU Studies 52, no. 1 (2013): 4–97.
- [3]
The original writ of habeas corpus is apparently not extant, but JS’s attorneys described its language in a contemporaneous affidavit. (Shepherd Patrick et al., Affidavit, [Nauvoo, IL], 2 July 1843, JS Office Papers, CHL.)
- [4]
“Arrest of Joseph Smith,” Nauvoo Neighbor, 19 July 1843, [2]; JS History, vol. D-1, 1587; An Act to Establish Circuit Courts [23 Feb. 1841], Laws of the State of Illinois [1840–1841], p. 104, sec. 4; Snyder, “Forgotten Statesmen of Illinois,” 318, 320; “Part 4: June–July 1843.”
Nauvoo Neighbor. Nauvoo, IL. 1843–1845.
General Laws of the State of Illinois, Passed by the Eighteenth General Assembly, Convened January 3, 1853. Springfield: Lanphier and Walker, 1853.
Snyder, John F. “Forgotten Statemen of Illinois. Hon. Conrad Will.” In Transactions of the Illinois State Historical Society for the Year 1905, 350–377. Springfield, Illinois: Illinois State Historical Library, 1906.
- [5]
See “Part 4: June–July 1843.”
- [6]
Act to Incorporate the City of Nauvoo, 16 Dec. 1840; see also Edward Southwick, St. Louis, MO, 12 July 1843, Letter to the Editor, Old School Democrat and Saint Louis Herald, 12 July 1843, [2].
Old School Democrat and Saint Louis Herald. St Louis, MO. 1843–1844.
- [7]
- [8]
See Historical Introduction to Discourse, 30 June 1843; and “An Enquiry,” Warsaw (IL) Message, 18 Oct. 1843, [1].
Warsaw Message. Warsaw, IL. 1843–1844.
- [9]
Joseph H. Reynolds, St. Louis, MO, 10 July 1843, Letter to the Editor, Old School Democrat and Saint Louis Herald, 10 July 1843, [2]; Edward Southwick, St. Louis, MO, 12 July 1843, Letter to the Editor, Old School Democrat and Saint Louis Herald, 12 July 1843, [2]; Stevens, History of Lee County, Illinois, 1:169.
Old School Democrat and Saint Louis Herald. St Louis, MO. 1843–1844.
Stevens, Frank. History of Lee County, Illinois. 2 vols. Chicago: S. J. Clarke Publishing Company, 1914.
- [10]
An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois, p. 322, sec. 1; see also An Act to Provide for Issuing Writs of Ne Exeat and Habeas Corpus, and for Other Purposes [11 Feb. 1835], Public and General Statute Laws of the State of Illinois, p. 145, sec. 2.
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.
- [11]
Ordinance, 14 Nov. 1842; see also Historical Introduction to Discourse, 30 June 1843.
- [12]
Although the original warrant is apparently not extant, Ford confirmed in early July 1843 that he had issued the warrant based on Missouri governor Thomas Reynolds’s requisition. (Thomas Ford, Springfield, IL, to Mason Brayman, 3 July 1843, Illinois Governor’s Correspondence, 1816–1852, Illinois State Archives, Springfield.)
Carlin, Thomas. Correspondence, 1838–1842. In Office of the Governor, Records, 1818–1989. Illinois State Archives, Springfield.
- [13]
For more information on the earlier extraditions, see “Part 1: March 1843”; “Part 4: June–July 1843”; Historical Introduction to Extradition of JS et al. for Treason and Other Crimes; and Historical Introduction to Extradition of JS for Accessory to Assault.
- [14]
- [15]
- [16]
In his return notation, Reynolds narrated Wilson’s arrest of JS as authorized by Ford’s 17 June 1843 warrant and Wilson’s transfer of JS to Reynolds on 23 June. He then explained that he held JS in custody based on the 13 June 1843 power of attorney, which designated him as the agent authorized to convey JS to Missouri. (Habeas Corpus, 30 June 1843, Extradition of JS for Treason (Nauvoo Mun. Ct. 1843), copy, JS Collection, CHL.)
- [17]
Minutes, 1 July 1843, Extradition of JS for Treason (Nauvoo Mun. Ct. 1843), JS Collection, CHL. Associate judges William Marks, Daniel H. Wells, Newel K. Whitney, George W. Harris, Gustavus Hills, and Hiram Kimball were present. (Docket Entry, ca. 1 July 1843, Extradition of JS for Treason [Nauvoo Mun. Ct. 1843], Nauvoo Municipal Court Docket Book, 55–56, 60–87, 116–150; see also Historical Introduction to Extradition of JS for Treason.)
10th Your petitioner avers that the said supposed warrant so issued by the said of the said State of & under color of which your petitioner is now imprisoned & the document purporting to be an authority to receive the said Joseph Smith Junior are wholly defective & insufficient legally to authorize the arrest & imprisonment of your petitioner: Copies of which said supposed warrant & the supposed authority from the of the State of are hereunto annexed— [approximately 5 lines blank]
Wherefore your petitioner prays that a writ of may be awarded directed to the said , commanding him that he bring your petitioner forthwith & without delay before this honorable Court, together with the causes of his caption & detention, in order that your petitioner may be dealt with according to law— & your petitioner as in duty bound will ever pray—
Joseph Smith
Subscribed & sworn to before)
me this <30th.> day of Jun A.D. 1843)
at the City of Ills.—) , Clerk of the)
Municipal Court of the City)
of , Ills.—)
Filed June 30th. 1843.
, Clerk M. C. [p. [4]]
Source Note
Source Note
Document Transcript
Document Information
Document Information
Footnotes
Footnotes
Signature of JS.
Certification in the handwriting of James Sloan.
Notation in the handwriting of James Sloan. “M. C.” is an abbreviation for municipal court.