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Petition to Nauvoo Municipal Court, 30 June 1843 [Extradition of JS for Treason]

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Petition to Nauvoo Municipal Court, 30 June 1843 [Extradition of JS for Treason]

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. [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. [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. [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. [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. [5]

    See the full bibliographic entry for JS Collection, 1827–1844, in the CHL catalog.

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.”
See also Introduction to Extradition of JS for Treason.

Footnotes

  1. [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. [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. [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. [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. [5]

    See “Part 4: June–July 1843.”

  6. [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. [7]

    Nauvoo City Council Minute Book, 8 Aug. 1842, 98; see also Ordinance, 5 July 1842.

  8. [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. [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. [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. [11]

    Ordinance, 14 Nov. 1842; see also Historical Introduction to Discourse, 30 June 1843.

  12. [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. [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. [14]

    Docket Entry, ca. 30 June 1843, Extradition of JS for Treason (Nauvoo Mun. Ct. 1843), Nauvoo Municipal Court Docket Book, 55; Act to Incorporate the City of Nauvoo, 16 Dec. 1840; Habeas Corpus, 30 June 1843, Extradition of JS for Treason (Nauvoo Mun. Ct. 1843), copy, JS Collection, CHL.

  15. [15]

    Minutes, 1 July 1843, Extradition of JS for Treason (Nauvoo Mun. Ct. 1843), JS Collection, CHL; Docket Entry, ca. 1 July 1843, Extradition of JS for Treason (Nauvoo Mun. Ct. 1843), Nauvoo Municipal Court Docket Book, 55.

  16. [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. [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.)

Asterisk (*) denotes a "featured" version, which includes an introduction and annotation. History, 1838–1856, volume D-1 [1 August 1842–1 July 1843] “History of Joseph Smith” Petition to Nauvoo Municipal Court, 30 June 1843 [ Extradition of JS for Treason ] Docket Entry, 1–circa 6 July 1843 [Extradition of JS for Treason] Trial Report, 8–26 July 1843, as Published in Nauvoo Neighbor [Extradition of JS for Treason] Trial Report, 8–26 July 1843, as Published in Times and Seasons [Extradition of JS for Treason] Trial Report, 8–26 July 1843, as Published in Evidence [Extradition of JS for Treason]
of the State of or otherwise as the agent of the State of in the State of , or in any other character & capacity to imprison your petitioner within the said State of —
7th Your petitioner before the making of the said arrest upon which he is now detained & imprisoned had been arrested for the same cause <​& upon a charge for the same offence​> for which he is now arrested & imprisoned by virtue of a warrant issued by the of the said State of upon a requisition of the Executive authority of the said State of & was discharged from said arrest & imprisonment by judgement of the Circuit Court of the Warren County at a court holden in the said County of Warren in <​or about​> the month of <​June​> A.D. 1841 in such manner as not to be liable to the said second arrest for the same cause
8th Your petitioner is not a fugitive from justice & has not fled from the justice of the said State of ; & he is not <​guilty​> & has not been guilty of tr[e]ason in or against the said State of
9th Your petitioner was not & has not been within the limits of the said State of for more than four years next before the making of said arrest & imprisonment whereby he is now detained, nor for or during four years before any indictments or other legal accusation was preferred against him— 10 [p. [3]]
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Related Case Documents
Editorial Title
Petition to Nauvoo Municipal Court, 30 June 1843 [Extradition of JS for Treason]
ID #
2776
Total Pages
4
Print Volume Location
JSP, D12:408–412
Handwriting on This Page
  • Shepherd Goodwin Patrick

Footnotes

  1. [6]

    Missouri governor Thomas Reynolds’s 13 June 1843 power of attorney appointed Joseph H. Reynolds “as the agent of the said State of Missouri” authorized to receive “from the proper authorities” of Illinois “Joseph Smith Jr” and to “convey” the prisoner “from the State of Illinois, and deliver him to the custody of the Sheriff of Daviess County in the State of Missouri.” In turn, Ford’s warrant ordered that “Joseph Smith Jr” be arrested and “delivered to the custody of Joseph H. Reynolds Esquire who has been duly constituded the agent of the State of Missouri to receive said fugitive from the justice of said State.” By contending that Joseph H. Reynolds lacked authority to detain the “petitioner” in custody, JS may have been arguing that Wilson could transfer JS into Reynolds’s custody only at the Illinois-Missouri border or that Reynolds had no authority to detain JS as “Joseph Smith Senior.”

  2. [7]

    On 1 September 1840, Missouri state officials sent a requisition to Illinois governor Thomas Carlin demanding that JS be apprehended and extradited to answer an 1839 indictment for treason. In compliance with the requisition, Carlin issued a warrant for JS’s arrest, but after JS went into hiding, the warrant was returned to the governor unserved. In June 1841, Carlin reissued the same warrant, upon which JS was arrested. On 9–10 June 1841, in the Warren County Circuit Court in Monmouth, Illinois, judge Stephen A. Douglas discharged JS on a writ of habeas corpus, citing the technical grounds that the warrant, as it had been returned unserved, was no longer valid. In the 30 June 1843 petition, JS and his attorneys referenced the Illinois habeas corpus statute, which stated that “no person who has been discharged by order of a court or judge, on a habeas corpus, shall be again imprisoned, restrained, or kept in custody, for the same cause.” However, the statute clarified that the accused individual could be arrested again if “he be afterwards indicted for the same offence.” JS may not have been aware that the 1843 extradition was based on a new indictment. (Requisition, 1 Sept. 1840, Extradition of JS et al. for Treason and Other Crimes [Warren Co. Cir. Ct. 1841], Joseph Smith Extradition Records, Abraham Lincoln Presidential Library and Museum, Springfield, IL; Editorial, Times and Seasons, Sept. 1840, 1:169–170; “The Late Proceedings,” Times and Seasons, 15 June 1841, 2:447–448; Ford, History of Illinois, 266; An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois, p. 325, sec. 7, italics in original; see also Historical Introduction to Extradition of JS et al. for Treason and Other Crimes.)

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

    Ford, Thomas. A History of Illinois, from Its Commencement as a State in 1818 to 1847. Containing a Full Account of the Black Hawk War, the Rise, Progress, and Fall of Mormonism, the Alton and Lovejoy Riots, and Other Important and Interesting Events. Chicago: S. C. Griggs; New York: Ivison and Phinney, 1854.

    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.

  3. [8]

    An 1840 editorial in the Times and Seasons argued that JS was not a fugitive from justice because the 1838–1839 legal proceedings against him in Missouri were unlawful, as was Lilburn W. Boggs’s 1838 order expelling all Latter-day Saints from the state. In an affidavit written on 7 July 1843, JS further argued that he was not a fugitive from justice because Missouri state officials had released him from custody in 1839. This objection also echoed an argument JS made in January 1843 before the United States Circuit Court for the District of Illinois: that because JS was not in Missouri when Boggs was shot, he could not have “fled from the justice of the State of Missouri.” (Editorial, Times and Seasons, Sept. 1840, 1:169–170; Affidavit, 7 July 1843; Affidavit, 2 Jan. 1843.)

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

  4. [9]

    The Missouri Constitution defined treason as “consist[ing] only in levying war” against the state “or in adhering to its enemies.” Conviction required “the testimony of two witnesses to the same overt act” or the defendant’s confession in open court. (Missouri Constitution of 1820, art. 13, sec. 15; see also Historical Introduction to State of Missouri v. Gates et al. for Treason;; and Madsen, “Joseph Smith and the Missouri Court of Inquiry,” 92–136.)

    Missouri Constitution, 1820. Record Group 5, Office of the Secretary of State. MSA.

    Madsen, Gordon A. “Joseph Smith and the Missouri Court of Inquiry: Austin A. King’s Quest for Hostages.” BYU Studies 43, no. 4 (2004): 93–136.

  5. [10]

    This objection adapted a claim JS made in the January 1843 proceedings before the United States Circuit Court for the District of Illinois, in which he argued that “he was not in the State of Missouri” when Boggs was shot in May 1842, “nor had he [JS] been in said State for more than three years previous to that time, nor has he been in that State since that time.” JS may not have been aware that the June 1843 indictment was based on the 1838 conflict, not on more recent allegations. In any case, Missouri law permitted the prosecution of individuals charged with treason “at any time after the offence shall be committed.” (Affidavit, 2 Jan. 1843; Lilburn W. Boggs, Affidavit, 20 July 1842; An Act to Regulate Proceedings in Criminal Cases [21 Mar. 1835], Revised Statutes of the State of Missouri [1834–1835], p. 502, art. 9, sec. 23; An Act concerning Crimes and Their Punishments [20 Mar. 1835], Revised Statutes of the State of Missouri [1834–1835], p. 166, art. 1, sec. 1.)

    The Revised Statutes of the State of Missouri, Revised and Digested by the Eighth General Assembly, During the Years One Thousand Eight Hundred and Thirty-Four, and One Thousand Eight Hundred and Thirty-Five. Together with the Constitutions of Missouri and of the United States. 3rd ed. St. Louis: Chambers and Knapp, 1841.

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