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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.
aforesaid, 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 at the County of in said State of and that the said Joseph Smith has fled from the justice of said and taken refuge in the State of :
Now therefore, I, , Governer of the State of , pursuant to the Constitution and Laws of the , and of this , do hereby command you to arrest and apprehend the said Joseph Smith, if he be found within the limits of the aforesaid, and cause him to be safely kept and delivered to the custody of at Ills, who has been duly constituted the Agent of the said State of to receive said fugitive from the Justice of said , he paying all fees and charges for the arrest and apprehension of said Joseph Smith and make due return to the Executive Department of this , the manner in which this writ may be executed
In Testimony whereof I have hereunto set my hand, and caused the Great Seal of to be affixed. Done at the City of , this second day of August in the year of our Lord one thousand eight hundred and forty two and of the Independance of the , the sixty-seventh
By the Governor,
Secretary of State
All of which I respectfully represent to your honors this Eighth day of August A.D 1842
Joseph Smith [p. [2]]
Source Note
Source Note
Document Transcript
Document Information
Document Information
Footnotes
Footnotes
- [5]
See U.S. Constitution, art. 4, sec. 2; and An Act concerning Fugitives from Justice [6 Jan. 1827], Public and General Statute Laws of the State of Illinois [1834–1837], p. 318, sec. 1.
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.
- [6]
In his requisition, Reynolds had named Ford as the officer to receive JS. (Thomas Reynolds, Requisition, 22 July 1842.)
- [7]
Carlin, who lived in Quincy, may have traveled to Springfield to issue this arrest warrant. According to state law, warrants for the arrest of a fugitive from justice had to be issued “under the seal of the state,” and the secretary of state, “the keeper of the seal,” had to reside “at the seat of government.” (An Act concerning Fugitives from Justice [6 Jan. 1827], Public and General Statute Laws of the State of Illinois [1834–1837], p. 318, sec. 1; An Act Defining and Regulating the Duties and Term of Service of the Secretary of State [14 Feb. 1831], Public and General Statute Laws of the State of Illinois [1834–1837], p. 646, sec. 1.)
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.
William Clayton handwriting ends; Sylvester Emmons begins.
Signature of JS.