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Petition to Nauvoo Municipal Court, 6 May 1844 [F. M. Higbee v. JS–A on Habeas Corpus]
Source Note
Source Note
JS, Petition, to Nauvoo Municipal Court, , Hancock Co., IL, 6 May 1844, F. M. Higbee v. JS on Habeas Corpus (Nauvoo, IL, Municipal Court 1844); handwriting of ; signature of JS in the handwriting of ; docket and notation by , [, Hancock Co., IL], 6 May 1844; four pages; JS Collection, CHL. Includes docket and notations.
Bifolium measuring 9¾ × 7⅞ inches (25 × 20 cm). The paper is ruled with twenty-nine horizontal lines printed in blue ink. The document was trifolded and docketed for filing.
The petition to the Nauvoo Municipal Court was likely filed among other documents belonging to the city of . When the state of disincorporated the city of Nauvoo, church recordkeepers retained the city papers along with church papers and brought them from Nauvoo to Great Salt Lake City. A notation, “A.J.”, was added by Andrew Jenson, who began working in the Church Historian’s Office (later Church Historical Department) in 1891 and served as assistant church historian from 1897 to 1941. The document was listed in an inventory that was produced by the Church Historian’s Office circa 1904. By 1973 the document had been included in the JS Collection at the Church Historical Department (now CHL). The document’s notation, its listing in a circa 1904 inventory, and its later inclusion in the JS Collection suggest continuous institutional custody.
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]
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.
- [3]
“Letters to and from the Prophet,” ca. 1904, [4], Historian’s Office, Catalogs and Inventories, 1846–1904, CHL.
Historian’s Office. Catalogs and Inventories, 1846–1904. CHL. CR 100 130.
- [4]
See the full bibliographic entry for JS Collection, 1827–1844, in the CHL catalog.
Historical Introduction
Historical Introduction
On 6 May 1844, JS prepared a petition of in , Illinois, directed to the municipal court of the city of Nauvoo arguing that his recent arrest was made with a defective arrest warrant and was therefore unlawful. The arrest was based on a complaint brought before the Circuit Court in , Illinois, by Nauvoo resident . Although Higbee’s relationship with JS had been strained for a few years, the immediate catalyst of Higbee’s complaint was remarks JS made at a Nauvoo City Council meeting on 5 January 1844. The city council was investigating rumors that member and Nauvoo president were disloyal to JS as the religious and political leader of Nauvoo. According to the minutes of the meeting, Higbee testified that he had “received the impression from some source” that Law, Marks, and others in the “could not subscribe to all things in the church, and it might make trouble.” Higbee then left the meeting without the council’s permission, violating council etiquette, after which JS said that Higbee “had better stay at home & hold his tongue, lest rumor turn upon him” and that “the young men of the city had better withdraw from him & let him stand on his own merits, not consider him the standard, for the city.” According to Law, who was at the meeting, JS also stated that Higbee was “conniving with Missouri” and that he disgraced his associates. Law further noted that JS implied that Higbee had a sordid sexual reputation.
On 10 January, wrote a letter to JS complaining of JS’s “unwarented, and unheard of Attack” on his character during the 5 January meeting. He stated that he could not understand JS’s motive for making such accusations but intimated that he thought it might be connected to Higbee’s opposition to plural marriage. Higbee concluded by demanding that an ecclesiastical court immediately investigate the charges against him. Five days later, filed a complaint before , clerk of the Municipal Court, in which he accused Higbee of using “slanderous and abusive epithets and language” toward JS and declaring that he would “put him [JS] under ten thousand dollar bonds.” JS ordered Richards to issue a warrant for Higbee’s arrest, and Higbee was brought before the municipal court. , who was present at the court proceedings on 16 January, described Higbee as “very wrathy and vicious” and noted that Higbee “threatened to sue J. [JS] at the County court.” JS was evidently not present at the opening of the court, but during an adjournment JS and Higbee met together. JS then announced to the city council that he had reconciled with Higbee and ordered the comments he made about Higbee on 5 January 1844 stricken from the city council minutes. The municipal court then dropped the charges against Higbee.
Despite the reconciliation, JS and ’s relationship deteriorated over the following months. Higbee began associating with dissenters in , and on 28 April he was appointed as an apostle in a new opposition church led by . On 1 May 1844, Higbee followed through on his earlier threat to sue JS in the Circuit Court. Based on testimony Higbee gave in an affidavit, the circuit court issued a writ of capias ad respondendum for JS’s arrest, featured here. On 6 May, Hancock County deputy sheriff arrested JS. In response, JS petitioned the Nauvoo Municipal Court for a writ of habeas corpus, also featured here.
Habeas corpus—a legal device that JS had used repeatedly with success—allowed JS to challenge the legality of his arrest or incarceration. In his petition for habeas corpus, JS argued that the capias, a copy of which he attached to the petition, was “informal, and not of that character which the Law recognises as valid.” His second argument was that the writ was deficient on the grounds that it did not name any legally known charge, saying only that JS was to appear before the circuit court to answer ’s complaint. These two arguments contested the validity of the documents authorizing the arrest, falling within the traditionally accepted purview of habeas corpus. JS, however, went on to add other rationale for challenging his arrest, declaring his own innocence and his belief that Higbee’s actions were malicious and intended to harass JS and deliver him into the hands of his enemies. These further arguments were “looking behind the writ”—examining the veracity of the allegations on which the complaint and arrest warrant were made. Such examination, which was usually reserved for regular court hearings and trials, was controversial in habeas corpus hearings. However, the city council had passed an ordinance in 1842 granting its municipal court authority to consider evidence relating to guilt or innocence based on the original charge during habeas corpus hearings.
The municipal court granted the writ and met on the morning of 8 May 1844, with —an alderman and justice of the peace—presiding at the hearing in JS’s place as president pro tempore of the court. The court discharged JS, citing the “illegality of the writ” and stating that “s characters having been so fully shown— before the[m] as infamous. the [that] the court are convinced the suit was instituetd through malice.”
retained the original capias, later returning it to the Circuit Court. Between 6 and 8 May, the Municipal Court made a file copy of the capias. JS’s original petition to the municipal court for habeas corpus, with the capias, was filed with the court. Versions of both the petition and capias were later published, along with other legal documents pertaining to the case, in the 15 May 1844 issues of the Times and Seasons and Nauvoo Neighbor. The original petition to the court is featured here, along with the court’s copy of the capias.
Footnotes
- [1]
Nauvoo City Council Rough Minute Book, 5 Jan. 1844, 36–40. In an address to forty newly sworn Nauvoo policemen on 29 December 1843, JS said he felt as if he were in more danger from “some little doe head of a fool” or a “Brutus” in the city than from the state of Missouri or other outside threats. Within a few days, rumors were circulating that JS was referring to either William Law or William Marks. The rumors and resulting rift between JS and these men were discussed at city council meetings on 3 and 5 January 1844, during which Law’s opposition to plural marriage was discussed as part of the reason Law had been identified as the target of JS’s remarks. (Nauvoo City Council Rough Minute Book, 29 Dec. 1843, 30–32; 3 Jan. 1844, 32–36; 5 Jan. 1844, 36–40; JS, Journal, 3–5 Jan. 1844.)
- [2]
- [3]
Law, Record of Doings, 5 Jan. 1844, in Cook, William Law, 45–46.
Cook, Lyndon W. William Law: Biographical Essay, Nauvoo Diary, Correspondence, Interview. Orem, UT: Grandin Book, 1994.
- [4]
- [5]
Tensions between Higbee and JS over plural marriage surfaced as early as May 1842, when Higbee began spreading rumors about Sidney Rigdon’s family and JS—likely in connection with JS’s possible proposal to Nancy Rigdon. (JS, Journal, 13 May and 29 June 1842; Francis M. Higbee, Letter to the Editor, Warsaw [IL] Signal, 29 May 1844, [2]; see also “Municipal Court,” Times and Seasons, 15 May 1844, 5:539.)
Warsaw Signal. Warsaw, IL. 1841–1853.
Times and Seasons. Commerce/Nauvoo, IL. Nov. 1839–Feb. 1846.
- [6]
Orson Pratt, Complaint, 15 Jan. 1844, City of Nauvoo v. F. M. Higbee (Nauvoo Mun. Ct. 1844), Nauvoo, IL, Records, CHL.
- [7]
JS, Journal, 15 Jan. 1844; Richards, Journal, 15 Jan. 1844.
Richards, Willard. Journals, 1836–1853. Willard Richards, Papers, 1821–1854. CHL. MS 1490, boxes 1–2.
- [8]
Clayton, Journal, 16 Jan. 1844.
Clayton, William. Journals, 1842–1845. CHL.
- [9]
- [10]
- [11]
Praecipe, 1 May 1844, F. M. Higbee v. JS (Hancock Co. Cir. Ct. 1844), Circuit Court Case Files, 1830–1900, CHL.
- [12]
- [13]
A capias ad respondendum is a writ ordering a sheriff to take custody of someone to answer, or respond to, the plea of a plaintiff. (“Capias ad Respondendum,” in Bouvier, Law Dictionary, 1:232.)
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.
- [14]
- [15]
“Habeas Corpus,” in Bouvier, Law Dictionary, 1:618; Smith, “Untouchable,” 16–17, 19.
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.
Smith, Alex D. “Untouchable: Joseph Smith’s Use of the Law as Catalyst for Assassination.” Journal of the Illinois State Historical Society 112, no. 1 (Spring 2019): 8–42.
- [16]
Both the Illinois statute regarding habeas corpus and an 1842 Nauvoo ordinance required a person submitting a petition for habeas corpus to attach a copy of the warrant under which he or she was held in custody. (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; Ordinance, 14 Nov. 1842.)
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.
- [17]
Walker, “Habeas Corpus in Early Nineteenth-Century Mormonism,” 15–21.
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.
- [18]
- [19]
Minutes, 6–8 May 1844, F. M. Higbee v. JS on Habeas Corpus (Nauvoo Mun. Ct. 1844), Nauvoo, IL, Records, CHL. Testimony about Higbee’s character centered on his reported sexual promiscuity. JS and former Nauvoo marshal Henry G. Sherwood testified that Higbee had cohabited with a “French Lady” from Warsaw, Illinois, who was “diseased” with “the Pox” and that Higbee had contracted it, nearly died, and risked infecting others. Hyrum Smith, Brigham Young, Sidney Rigdon, Cyrus Wheelock, and others also testified of Higbee’s involvement in a conspiracy to take JS’s life and of his relationship with former Nauvoo mayor and excommunicated church member John C. Bennett.
- [20]
Capias ad Respondendum, 1 May 1844, F. M. Higbee v. JS (Hancock Co. Cir. Ct. 1844), Circuit Court Case Files, 1830–1900, CHL.
- [21]
State of Illinois)
City of )
To the Honorable Municipal Court in and for the City of —
The undersigned Your Petitioner most respectfully represents that he is an inhabitant of Said Your Petitioner further represents that he is under arrest in Said and is now in the custody of one Deputy Sherriff of the County of & State of — that the Said holds your Petitioner by virtue of a Writ or “Capias Ad respondendum” Issued by the of the Circuit Court of the County of in the State of at the instance of one of Said requiring your Petitioner to answer the Said “of a Plea of the Case” Damage five Thousand Dollars—
Your Petitioner further represents that the procedings against your Petitioner him are Illegal— that the Said Warrant of Arrest is informal, and not of that character which the Law recognises as valid, that the Said Writ is Wanting and Deficient in the pleas therein contained that the charge or complaint which your Petitioner is therein contained required to answer is not of that of known to the Law—
Your Petitioner further avers that the [p. [1]]
Source Note
Source Note
Document Transcript
Document Information
Document Information
Footnotes
Footnotes
George Stiles handwriting begins.
- [1]
Jacob B. Backenstos was the clerk of Hancock County. The writ was issued on his behalf by deputy clerk David E. Head, as indicated on the capias ad respondendum.