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Petition to Nauvoo Municipal Court, 8 August 1842 [Extradition of JS for Accessory to Assault]
Source Note
Source Note
JS, Petition, , Hancock Co., IL, to Municipal Court, , Hancock Co., IL, 8 Aug. 1842; Extradition of JS for Accessory to Assault (Nauvoo, IL, Municipal Court 1842); handwriting of and ; signature of JS; docket by , , Hancock Co., IL, ca. 8 Aug. 1842; two pages; JS Collection, CHL. Includes docket and archival notation.
Bifolium measuring 12⅛ × 7½ inches (31 × 19 cm). The document was folded twice horizontally, then folded in half.
The document was docketed by , who served as the city recorder and clerk for the Nauvoo Municipal Court from February 1841 to July 1843. The recto of the first page also includes an archival notation added by the Church Historian’s Office. By 1973 the document had been included in the JS Collection at the Church Historical Department (now CHL). The document’s docket, archival notation, and inclusion in the JS Collection by 1973 suggest continuous institutional custody.
Footnotes
- [1]
- [2]
See the full bibliographic entry for JS Collection, 1827–1844, in the CHL catalog.
Historical Introduction
Historical Introduction
On 8 August 1842, JS petitioned the municipal court of , Illinois, for a writ of in response to his arrest by Thomas C. King, undersheriff of , Illinois, earlier that day. On 5 July 1842, in light of rumored efforts to extradite JS to for his alleged involvement in the attempted assassination of former Missouri governor , Nauvoo’s city council had passed an ordinance meant to bolster and localize the already existing right to habeas corpus. The ordinance allowed the municipal court to investigate all writs presented for the arrest and removal of Nauvoo citizens. Two weeks later, on 20 July, Boggs signed an affidavit stating that he believed JS was an accessory before the fact in the attempt on his life and asked Missouri’s governor to formally request that ’s governor give JS up to Missouri authorities. Two days after that, Missouri governor filled out a printed requisition form that called for JS’s extradition from Illinois to Missouri. While Boggs’s affidavit failed to claim or show that JS was a fugitive from justice from one state to another—a constitutional requirement for extradition—Reynolds’s requisition described JS in just those terms. It also named him as an accessory before the fact and charged with the attempted murder of Boggs, even though Boggs did not include Rockwell in his affidavit. On 2 August, Illinois governor signed warrants for the arrest of JS and Rockwell. Three days later, Nauvoo’s city council formed a committee to consider an ordinance on the municipal court’s powers in habeas corpus proceedings. On 8 August, King arrived in Nauvoo with Adams County constable and another officer, perhaps —whom Reynolds had designated in his requisition as the man to receive the prisoner. The three men arrested JS and Rockwell that morning.
In response to being arrested, JS immediately filed the 8 August habeas corpus petition featured here to demonstrate the “insufficiency of the writ” and the “groundlessness of the charge.” Whoever crafted the petition for JS seems to have followed the instructions outlined in a habeas corpus statute passed by the legislature in 1827, which required inclusion of the arresting warrant. transcribed the warrant at the end of the petition, which JS then signed. filed a similar petition at the same time.
At about noon on 8 August, shortly after JS’s and ’s arrest and before the municipal court met to consider their petitions, the City Council convened to hear the report of the committee that was considering an expanded ordinance on habeas corpus proceedings. Apparently the committee was concerned that existing laws did not provide enough protection from extradition attempts. In light of the committee’s findings, the council amended and passed the bill, which directed the municipal court to “examine into the origin, validity, & legality of the Writ or Process, under which such arrest was made” in “all cases, where any Person or Persons, shall . . . be arrested . . . in this city,” and also to “discharge the Prisoner” if the writ was illegal or issued with “malicious intent.” By allowing the court to examine both procedural and substantive issues, the 5 July ordinance gave the court more power than was allowed by the 1827 state law. Most significantly, the ordinance allowed the court to proceed to a full trial on the merits of the case. The ordinance also granted the aldermen of the municipal court the power to select a chief justice or president pro tempore of the court when mitigating circumstances prevented the mayor, in this case JS, from officiating as chief justice. The ordinance decreed that the law would take effect “from and after its passage.” , Nauvoo’s vice mayor and JS’s brother, signed the law as president pro tempore of the city council.
At about one o’clock in the afternoon, the municipal court met and, in accordance with the new ordinance, elected alderman to act as president pro tempore “in the absence of the Chief Justice, who was under arrest.” , as counsel for both JS and , presented their petitions. The court then issued writs of habeas corpus directing King and to bring JS and Rockwell before the court. , the city marshal, delivered the writs between two and three o’clock. Uncertain about the municipal court’s power to issue such writs, the arresting officers did not comply with the court’s command but instead left JS and Rockwell in the custody of Sherwood while they returned to , Illinois, for further instructions from . In the absence of a warrant, which the officers took with them, Sherwood released JS and Rockwell without a hearing.
and wrote the petition, which was signed by JS and delivered to the municipal court. The petition was then filed, presumably by , the court’s clerk.
Footnotes
- [1]
Ordinance, 5 July 1842. For more on habeas corpus, see Historical Introduction to Ordinance, 5 July 1842.
- [2]
Lilburn W. Boggs, Affidavit, 20 July 1842. Boggs’s affidavit was made amid accusations from John C. Bennett that JS had conspired with Orrin Porter Rockwell to assassinate Boggs. Bennett’s claims were included in his letters to the editor printed in the 15 July and 22 July issues of the Sangamo Journal. (John C. Bennett, Carthage, IL, 2 July 1842, Letter to the Editor, Sangamo Journal [Springfield, IL], 15 July 1842, [2]; John C. Bennett, St. Louis, MO, 15 July 1842, Letter to the Editor, Sangamo Journal, 22 July 1842, [2].)
Sangamo Journal. Springfield, IL. 1831–1847.
- [3]
The United States Constitution 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.” Congress and then the Illinois state legislature subsequently passed statutes that enacted this provision in their respective jurisdictions and specified procedures to be followed. (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, pp. 302–305; An Act concerning Fugitives from Justice [6 Jan. 1827], Public and General Statute Laws of the State of Illinois [1834–1837], pp. 318–320.)
Sangamo Journal. Springfield, IL. 1831–1847.
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.
- [4]
An influential nineteenth-century law dictionary defined an accessory as “he who is not the chief actor in the perpetration of the offence, nor present at its performance, but is some way concerned therein.” An accessory before the fact was defined as “one who being absent at the time of the crime committed, yet procures, counsels, or commands another to commit it.” (“Accessary,” in Bouvier, Law Dictionary, 1:36.)
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.
- [5]
Thomas Reynolds, Requisition, 22 July 1842. Boggs created two affidavits on 20 July 1842. The first accused Rockwell of assaulting him with attempt to kill, and the second accused JS of being an accessory before the fact. Relying on Boggs’s two affidavits, Reynolds wrote two requisitions, one for Rockwell and another for JS. The requisition for Rockwell is not extant, but it is referenced in Carlin’s 2 August warrant for Rockwell, which was copied into Rockwell’s 8 August petition for habeas corpus. The fact that Boggs did not mention Rockwell in his affidavit for JS was a mistake. Reynolds complicated the problem by including Rockwell’s name in his requisition for JS, rather than insisting that Boggs correct the underlying affidavit. (Lilburn W. Boggs, Affidavit, 20 July 1842; Affidavit, 20 July 1842 [Extradition of Rockwell for Assault], JS Office Papers, CHL; Orrin Porter Rockwell, Petition to Nauvoo Municipal Court, 8 Aug. 1842, copy, Nauvoo, IL, Records, CHL; Thomas Reynolds, Requisition, 22 July 1842.)
- [6]
Orrin Porter Rockwell, Petition to Nauvoo Municipal Court, 8 Aug. 1842, copy, Nauvoo, IL, Records, CHL.
- [7]
- [8]
An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois [1834–1837], p. 323, 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.
- [9]
Orrin Porter Rockwell, Petition to Nauvoo Municipal Court, 8 Aug. 1842, copy, Nauvoo, IL, Records, CHL.
- [10]
Nauvoo City Council Rough Minute Book, 8 Aug. 1842, 37. The city council had passed an initial ordinance regarding writs of habeas corpus on 5 July 1842. Then on 5 August, John Taylor introduced an ordinance to regulate proceedings in the Nauvoo Municipal Court. His proposed ordinance was referred to a committee composed of Taylor, Orson Spencer, and William Law. On 8 August, the committee reported its findings and introduced a new ordinance that laid out the process to be used for an individual to receive a writ of habeas corpus from the Nauvoo Municipal Court. (Nauvoo City Council Rough Minute Book, 5 and 8 Aug. 1842, 37.)
- [11]
Nauvoo City Council Rough Minute Book, 8 Aug. 1842, 37; Nauvoo City Council Minute Book, 8 Aug. 1842, 98; see also Ordinance, Nauvoo, IL, 8 Aug. 1842, Nauvoo, IL, Records, CHL.
- [12]
See An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois [1834–1837], pp. 323–324, sec. 3. While this 8 August ordinance gave the municipal court broad powers, some Nauvoo citizens acknowledged that the municipal court could not pass judgment on the individual who had been brought before the court by a habeas corpus petition. An editorial published in the 15 August 1842 issue of the Times and Seasons granted that “habeas corpus can only test the validity, not the virtue of a process, (as testimony to prove the guilt or innocence of a person—under an investigation by habeas corpus, is inadmissible).” (“Persecution,” Times and Seasons, 15 Aug. 1842, 3:888–889, italics in original.)
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.
- [13]
The mayor and aldermen of the city council constituted the municipal court. Sections 16 and 17 of the Nauvoo charter granted both the mayor and aldermen jurisdiction over appeals for alleged violations of city ordinances. (Act to Incorporate the City of Nauvoo, 16 Dec. 1840.)
- [14]
Nauvoo City Council Minute Book, 8 Aug. 1842, 99. The city council’s rules of order specified that the vice mayor would “serve as President pro tempore, who shall preside during the absence of the Mayor.” (Nauvoo City Council Minute Book, 22 Jan. 1842, 46.)
- [15]
Nauvoo Municipal Court Docket Book, 8 Aug. 1842, 6 (second numbering). Although Emmons apparently was not admitted to the bar until 1843, he acted as a lawyer on Nauvoo City Council business on a few occasions in 1841 and 1842. In such settings, he was referred to as “Judge Emmons.” (Perrin, History of Cass County, Illinois, 239; Nauvoo City Council Minute Book, 30 Oct. 1841, 26; 1 Nov. 1841, 28; 1 Jan. 1842, 38.)
Perrin, William Henry, ed. History of Cass County Illinois. Chicago: O. L. Baskin, 1882.
- [16]
Writ of habeas corpus for JS, 8 Aug. 1842, Nauvoo, IL, Records, CHL; Writ of habeas corpus for Orrin Porter Rockwell, 8 Aug. 1842, Nauvoo, IL, Records, CHL.
- [17]
JS, Journal, 8 Aug. 1842; “The Arrest,” Wasp, 13 Aug. 1842, [2]; Times and Seasons, 15 Aug. 1842. In a letter to Emma Smith in September 1842, Carlin argued against the municipal court’s decision to grant a writ of habeas corpus to JS and Rockwell, since the charges against them were not governed by Nauvoo’s ordinances. (Thomas Carlin, Quincy, IL, to Emma Smith, [Nauvoo, IL], 7 Sept. 1842.)
The Wasp. Nauvoo, IL. Apr. 1842–Apr. 1843.
State of Illinois)
City of )
To the <Judges of the> Municiple Court of the City of
Whereas I Joseph Smith of said being under arrest illegally <and in the custody of officer> by virtue of a Writ issued by Gov— of said do hereby apply to the Municiple Court of Said for and pray that they may grant me a writ of in pursuance of <a provision in> the City Charter and an ordinance in pursuance of said provision, that I may be entitled to the privilege of showing to your honors the insufficiency of the writ and the impossibility of utter groundlessness of the charge prefered in said Writ which charges me with being accessary before the fact to an assault with intent to Kill made by one on on the night of the sixth day of May A D 1842 in the State of and having fled from the Justi[c]e of said and taking refuge in the State of when as I shall be able to prove before your honors that I was not out of the State of nor in the State of for the last two years and that I was not accesory to said assault of on said not knowing anything about the intended assault nor anything concerning it untill I was informed of it some time after it had occured the copy of said Writ doth hereby follow
The people of the State of
To
Whereas it has been made known to me by the Executive authority of the State of that one Joseph Smith stands charged by the affidavit of made on the 20th. day of July A.D 1842 at the county of in the State of before a Justice of the Peace within and for the County of [p. [1]]
Source Note
Source Note
Document Transcript
Document Information
Document Information
Footnotes
Footnotes
Sylvester Emmons handwriting begins.
- [1]
- [2]
Rockwell’s petition for habeas corpus stated that he was “not any where in the region of Country when the offense was committed.” Although an extra edition of the Wasp noted that Rockwell could “prove that he was in Nauvoo the day after the aforesaid assault on Ex-Governor Boggs,” it appears that Rockwell was actually in Missouri. He had evidently gone to Independence, Missouri, to be with his wife, Luana Hart Beebe Rockwell, when she gave birth to their daughter, Sarah Jane Rockwell, on 25 March 1842. The Rockwells were likely staying with Luana’s brother, Isaac Beebe, in Independence. Rockwell reportedly later claimed that “he could prove that he was seven miles north of Independence on the night that Governor Boggs was shot.” Rockwell was one of at least three individuals who were suspected of attempting to murder Boggs. (Lilburn W. Boggs, Affidavit, 20 July 1842; Thomas Reynolds, Requisition, 22 July 1842; Orrin Porter Rockwell, Petition to Nauvoo Municipal Court, 8 Aug. 1842, copy, Nauvoo, IL, Records, CHL; “The Arrest,” Wasp, 13 Aug. 1842, [2]; “Bennettiana,” Wasp, Extra, 27 July 1842, [1]; Jorgensen and Leary, “Luana Hart Beebe,” 126; Joseph O. Boggs, Independence, MO, to John C. Bennett, 12 Sept. 1842, in Bennett, History of the Saints, 286; see also Switzler et al., Switzler’s Illustrated History of Missouri, 251; James H. Hunt, Knoxville, MO, to Nathan Daggett, Kirtland, OH, 16 July 1842, typescript, Daggett Papers, Lake County Historical Society, Mormon Related Archives, CHL; and McLaws, “Attempted Assassination of Missouri’s Ex-Governor, Lilburn W. Boggs,” 58–62.)
The Wasp. Nauvoo, IL. Apr. 1842–Apr. 1843.
Jorgensen, Danny L., and Andrew Leary. “Luana Hart Beebe (1814–1897): A Biographical Sketch of a Remarkable Early Latter-day Saint.” Journal of Mormon History 42, no. 3 (July 2016): 120–154.
Bennett, John C. The History of the Saints; or, an Exposé of Joe Smith and Mormonism. Boston: Leland and Whiting, 1842.
Switzler, W. F., A. J. Conant, G. C. Swallow, and R. A. Campbell. Switzler’s Illustrated History of Missouri, from 1541 to 1877. Edited by C. R. Barns. St. Louis: C. R. Barns, 1879.
Lake County Historical Society. Mormon Related Archives, 1791–1902. CHL.
McLaws, Monte B. “The Attempted Assassination of Missouri’s Ex-Governor, Lilburn W. Boggs.” Missouri Historical Review 60, no. 1 (Oct. 1965): 50–62.
- [3]
Both the United States Constitution and an 1827 Illinois law described fugitives from justice as those who commit a crime in one state and then flee to another state. Commenting on JS’s arrest, the Wasp noted, “We have yet to learn by what rule of right he [JS] was arrested to be transported to Missouri,” as “‘an accessory to an assault with an intent to kill,’ does not come under the purview of the fugitive act, when the person charged has not been out of Illinois &c.” (U.S. Constitution, art. 4, sec. 2; An Act concerning Fugitives from Justice [6 Jan. 1827], Public and General Statute Laws of the State of Illinois [1834–1837], p. 319, sec. 4; “The Arrest,” Wasp, 13 Aug. 1842, [2], italics in original; see also “Persecution,” Times and Seasons, 15 Aug. 1842, 3:888.)
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 Wasp. Nauvoo, IL. Apr. 1842–Apr. 1843.
- [4]
According to JS’s journal, rumor of the attempted assassination reached Nauvoo on 14 May 1842. News reports confirmed the rumors the following day. (JS, Journal, 14–15 May 1842.)
Sylvester Emmons handwriting ends; William Clayton begins.