The Nauvoo Municipal Court and the Writ of Habeas Corpus

The writ of emerged in the sixteenth century as an English common law remedy that permitted an authorized judge or court to review the legality of a prisoner’s detention. After reviewing the reasons for the detention, the court was allowed to remand the prisoner to jail or, if there were procedural irregularities, to discharge or bail the detainee. The court was not permitted, however, to proceed to hear the merits of the case or make a determination of guilt or innocence.
As American colonies established courts of law, they also adopted the writ of as part of the common law. The Constitution prohibited Congress from suspending the writ except in times of rebellion or invasion. In 1789, Congress authorized federal courts to issue writs of habeas corpus, but only for prisoners detained under “the authority of the United States.” The Constitution of 1818 contained a provision similar to that in the federal constitution. An 1827 Illinois statute authorized the state supreme court and circuit courts to issue writs of habeas corpus to review the detentions of prisoners who were held for alleged violations of state laws. The same law prohibited state courts from discharging prisoners held “for any offence exclusively cognizable by the courts of the United States.” The statute permitted the court to hear the petitioner’s arguments concerning the unlawful nature of the detention, and the court could discharge the prisoner under specific narrowly defined scenarios dealing with jurisdictional or procedural problems. This discharge, however, did not function as an acquittal, meaning that the charge could be brought again under certain circumstances. More broadly, some English and American courts had begun to review not only jurisdictional and procedural issues but also the grounds supporting the detention, and to discharge prisoners when it appeared that the evidence was insufficient. However, the degree to which a court could “enquire into any facts behind the Writs” remained a contested issue in the 1840s.
In 1840, the state legislature approved ’s , which authorized the city to operate a municipal court with power to grant writs of . The incorporating act permitted the city council—made up of the mayor, four aldermen, and nine councilors—to pass any ordinance for the benefit and well-being of the city, as long as the ordinance was “not repugnant” or inconsistent with the or Illinois constitutions. The charter empowered the mayor and the aldermen to operate courts to adjudicate alleged violations of city ordinances. The municipal court—composed of the mayor as chief justice and aldermen as associate justices—heard appeals from decisions made by the mayoral or aldermen courts. In addition, the municipal court was authorized to issue writs of habeas corpus “in all cases arising under the ordinances of the City Council.”
In 1842, the City Council passed ordinances that further defined and expanded the municipal court’s habeas corpus powers because of threats that the government would extradite JS on charges related to the May 1842 shooting of former Missouri governor . First, ordinances of 5 July and 8 August 1842 authorized the municipal court to issue writs of habeas corpus to review any warrant, regardless of whether it was issued by city, state, or federal authorities. Second, the 5 July ordinance guaranteed that Nauvoo citizens would have the “right of trial” in the city, rather than being taken to the originating jurisdiction for trial. The 8 August ordinance further specified that if the municipal court found procedural problems with the warrant, the prisoner was entitled to a discharge. If the court found no procedural issues, the judges would “fully hear the merits of the case” and reach a decision regarding the prisoner’s guilt or innocence. These ordinances laid out general principles but did not provide a detailed description of the process the municipal court should follow in habeas corpus proceedings—from granting a petition, through issuing and serving the writ, to conducting hearings once the prisoner was brought before the court. On 14 November 1842, the city council remedied these deficiencies when it passed an ordinance that incorporated much of the language from the 1827 habeas corpus act while eliminating or revising some provisions that contradicted previous Nauvoo city ordinances.
Under these ordinances, the Municipal Court issued at least fifteen writs of between 1842 and 1844. Thirteen of these writs were issued in cases in which prisoners were being held for alleged violations of either or state law; the other two cases involved alleged violations of law. The municipal court discharged nearly all of the petitioners from their detention in these cases. At times, the municipal court went beyond a discharge and proceeded to hear the “merits of the case” and acquit the petitioner of the underlying charge. The municipal court’s habeas corpus powers proved to be a significant point of controversy between the Latter-day Saints and their antagonists in Illinois.
  1. 1

    The Magna Carta of 1215 included a provision that forbade arbitrary imprisonment, but it was not until the sixteenth century that English common law courts developed the writ of habeas corpus as it would come to be understood. (Baker, Introduction to English Legal History, 156–158, 506–510; Blackstone, Commentaries, 2:103–110; “Habeas Corpus,” in Bouvier, Law Dictionary, 1:454–456; Walker, “Habeas Corpus in Early Nineteenth-Century Mormonism,” 21.  

    Baker, John. An Introduction to English Legal History. 5th ed. Oxford: Oxford University Press, 2019.

    Blackstone, William. Commentaries on the Laws of England: In Four Books; with an Analysis of the Work. By Sir William Blackstone, Knt. One of the Justices of the Court of Common Pleas. In Two Volumes, from the Eighteenth London Edition. . . . 2 vols. New York: W. E. Dean, 1840.

    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: T. and J. W. Johnson, 1839.

    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.

  2. 2

    Gregory, Power of Habeas Corpus in America, chaps. 3–4.  

    Gregory, Anthony. The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror. Oakland, CA: Independent Institute, 2013.

  3. 3

    U.S. Constitution, art. 1, sec. 9.  

    Constitution of the United States of America . . . to Which Are Added, Standing Rules and Orders for Conducting Business in the House of Representatives of the United States. Washington DC: Gales and Seaton, 1843.

  4. 4

    An Act to Establish the Judicial Courts of the United States [24 Sept. 1789], Public and General Statutes [1840], 1:59, sec. 14; see also An Act Further to Provide for the Collection of Duties on Imports [2 Mar. 1833], Public Statutes at Large [1846], 4:634–635, sec. 7.  

    The Public and General Statutes Passed by the Congress of the United States of America. From 1789 to 1836 Inclusive. . . . 2nd ed. Philadelphia: T. and J. W. Johnson, 1840.

    The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845. . . . Edited by Richard Peters. 8 vols. Boston: Charles C. Little and James Brown, 1846–1867.

  5. 5

    Illinois Constitution of 1818, art. 8, sec. 13.  

    Illinois Office of Secretary of State. First Constitution of Illinois, 1818. Illinois State Archives, Springfield.

  6. 6

    An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 322, 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.

  7. 7

    An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 325, sec. 8.  

    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.

  8. 8

    “If it appear that the prisoner is in custody by virtue of process from any court, legally constituted, he can be discharged only for some of the following causes: first, where the court has exceeded the limits of its jurisdiction, either as to the matter, place, sum, or person; second, where, though the original imprisonment was lawful, yet by some act, omission, or event, which has subsequently taken place, the party has become entitled to his discharge; third, where the process is defective in some substantial form required by law; fourth, where the process, though in proper form, has been issued in a case, or under circumstances where the law does not allow process, or orders for imprisonment or arrest to issue; fifth, where, although in proper form, the process has been issued or executed by a person either unauthorized to issue or execute the same, or where the person having the custody of the prisoner under such process is not the person empowered by law to detain him; sixth, where the process appears to have been obtained by false pretense or bribery; seventh, where there is no general law, nor any judgment, order, or decree of a court, to authorize the process, if in a civil suit, nor any conviction, if in a criminal proceeding. No court or judge, on the return of a habeas corpus, shall, in any other matter, inquire into the legality or justice of a judgment or decree of a court legally constituted.” (An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois [1839], pp. 323–324, sec. 3.)  

    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. 9

    “No person who has been discharged by order of a courtor judge, on a habeas corpus, shall be again imprisoned, restrained, or kept in custody, for the same cause, unless he be afterwards indicted for the same offence, or unless by the legal order or process of the court wherein he is bound by recognizance to appear.” In June 1841, an Illinois state judge declined to admit such evidence in JS’s habeas corpus proceedings resulting from the first attempt by Missouri officials to have him extradited. Similarly, in January 1843 a federal judge declined to consider evidence of JS’s guilt or innocence in the habeas corpus proceedings that resulted from Missouri officials’ second extradition attempt. (An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 325, sec. 7; Halliday, Habeas Corpus, 102–116; Farbey and Sharpe, Law of Habeas Corpus, chap. 3; JS, Journal, 4 Jan. 1843; Walker, “Habeas Corpus in Early Nineteenth-Century Mormonism,” 15–21; Introduction to Extradition of JS et al. for Treason and Other Crimes; Introduction to Extradition of JS for Accessory to Assault; see also “Acquittal” and “Discharge,” in Bouvier, Law Dictionary, 1:49, 326–327.)  

    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.

    Halliday, Paul D. Habeas Corpus: From England to Empire. Cambridge, MA: Belknap Press, 2010.

    Farbey, Judith, and R. J. Sharpe. The Law of Habeas Corpus. With Simon Atrill. 3rd ed. Oxford: Oxford University Press, 2011.

    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.

    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: T. and J. W. Johnson, 1839.

  10. 10

    Act to Incorporate the City of Nauvoo, 16 Dec. 1840, secs. 4 and 11.  

  11. 11

    The charter also appointed the mayor and aldermen justices of the peace with limited jurisdiction over alleged violations of state laws and minor civil disputes within the city’s boundaries. (Act to Incorporate the City of Nauvoo, 16 Dec. 1840, secs. 16–17.)  

  12. 12

    Act to Incorporate the City of Nauvoo, 16 Dec. 1840, sec. 17; see also Oaks, “Suppression of the Nauvoo Expositor,” 880–881; and Kimball, “Nauvoo Charter,” 73–75.  

    Oaks, Dallin H. “The Suppression of the Nauvoo Expositor.Utah Law Review 9 (Winter 1965): 862–903.

    Kimball, James L., Jr. “The Nauvoo Charter: A Reinterpretation.” Journal of the Illinois State Historical Society 44 (Spring 1971): 66–78.

  13. 13

    Nauvoo City Council Minute Book, 5 July and 8 Aug. 1842, 86–87, 98. The city council passed an additional habeas corpus ordinance regarding a minor procedural issue on 26 September 1842. Nauvoo officials cited the charter’s non-repugnancy clause to defend these ordinances as early as August 1842. (Nauvoo City Council Minute Book, 26 Sept. 1842, 102–103; “Persecution,” Times and Seasons, 15 Aug. 1842, 3:886.)  

  14. 14

    For a detailed discussion of the changes, see Historical Introduction to Ordinance, 14 Nov. 1842, in JSP, D11:207–210. The November 1842 ordinance did not impact or supersede the earlier ordinances, which remained in force.  

    JSP, D11 / McBride, Spencer W., Jeffrey D. Mahas, Brett D. Dowdle, and Tyson Reeder, eds. Documents, Volume 11: September 1842–February 1843. Vol. 11 of the Documents series of The Joseph Smith Papers, edited by Matthew C. Godfrey, R. Eric Smith, Matthew J. Grow, and Ronald K. Esplin. Salt Lake City: Church Historian’s Press, 2020.

  15. 15

    Habeas Corpus, 8 Aug. 1842 [Extradition of JS for Accessory to Assault]; Habeas Corpus, 8 Aug. 1842 [Extradition of Rockwell for Assault]; Habeas Corpus, 19 Nov. 1842 [State of Illinois v. Brown on Habeas Corpus]; Habeas Corpus, 4 Feb. 1843 [State of Illinois vs. Goddard et al. on Habeas Corpus]; Habeas Corpus, 4 Apr. 1843 [State of Illinois vs. J. Hoopes and L. Hoopes on Habeas Corpus]; Habeas Corpus, 30 June 1844 [Extradition of JS for Treason]; Habeas Corpus, 10 Oct. 1843 [State of Illinois v. Drown on Habeas Corpus]; Habeas Corpus, 23 Nov. 1843 [State of Illinois v. Finch on Habeas Corpus]; Habeas Corpus, 2 Apr. 1844 [State of Illinois v. Greene et al. on Habeas Corpus]; Habeas Corpus, 12 Apr. 1844 [State of Illinois v. Colton on Habeas Corpus]; Habeas Corpus, 6 May 1844 [F. M. Higbee v. JS on Habeas Corpus]; Habeas Corpus, 16 May 1844 [U.S. v. Jeremiah Smith on Habeas Corpus–A]; Habeas Corpus, 30 May 1844 [U.S. v. Jeremiah Smith on Habeas Corpus–B]; Habeas Corpus, 12 June 1844 [State of Illinois v. JS on Habeas Corpus]; Habeas Corpus, 13 June 1844 [State of Illinois v. H. Smith et al. on Habeas Corpus].  

  16. 16

    In State of Illinois v. Goddard et al. on Habeas Corpus, the municipal court remanded two of the three petitioners—Stephen Goddard and William Riley—for trial. (Docket Entry, ca. 4 Feb. 1843 [State of Illinois v. Goddard et al. on Habeas Corpus]; Warrant, 3 Feb. 1843 [State of Illinois v. Goddard et al. on Habeas Corpus].)  

  17. 17

    For example, in State of Illinois v. J. Hoopes and L. Hoopes on Habeas Corpus, the court “acquitted” the prisoners “of the charges.” In another instance, Extradition of JS et al. for Treason and Other Crimes, the court “discharged” the petitioner “on the merits of the case,” which was seen as equivalent to an acquittal. (Docket Entry, 4–ca. 26 Apr. 1843 [State of Illinois v. J. Hoopes and L. Hoopes on Habeas Corpus]; Introduction to Extradition of JS et al. for Treason and Other Crimes; Nauvoo City Council Minute Book, 8 Dec. 1843, 192.)  

  18. 18

    Church members viewed the municipal court’s habeas corpus powers as a necessary bulwark against persecution in the form of legal process, while the church’s antagonists saw the city court’s use of habeas corpus powers as a cover for criminality and resistance to state laws. The controversy was rooted in the clause in Nauvoo’s incorporating act that permitted the city council to pass any ordinance that was not repugnant to the national or state constitutions. The city council evidently viewed this as authorization to pass ordinances that diverged from state laws and from common law principles governing habeas corpus. Furthermore, there was no explicitly defined mechanism for reviewing the constitutionality of the city’s habeas corpus ordinances. Although the charter indicated that the circuit court would hear appeals from the municipal court, it was unclear if habeas corpus proceedings could be appealed. The Illinois state legislature debated whether to repeal the incorporating act or amend the habeas corpus provision during the 1842–1843 session, but the measure failed. Arguing that the state government’s inaction on the issue threatened the rule of law in western Illinois, the church’s opponents instead advocated for an extralegal solution. Finally, in 1845 the legislature repealed the charter. (“Persecution,” Times and Seasons, 15 Aug. 1842, 3:886; “Great Meeting of Anti-Mormons,” Boon’s Lick Times (Fayette, MO), 30 Sept. 1843, [1]; Act to Incorporate the City of Nauvoo, 16 Dec. 1840, secs. 4, 11, and 17; “Remarks on Chartered Rights,” Wasp, 24 Dec. 1842, [2]–[3]; “Vested Rights of Nauvoo,” Nauvoo Neighbor, 30 Aug. 1843, [2]–[3]; Journal of the Senate . . . of Illinois, 10 Dec. 1842; 23 Feb. 1843; 4 and 6 Mar. 1843, 55–56, 412, 515, 533; “Preamble and Resolutions,” Warsaw [IL] Signal, 14 June 1844, [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; see also Smith, “Joseph Smith’s Use of the Law as Catalyst for Assassination,” 8–42.)  

    Boon’s Lick Times. Fayette, MO. Mar. 1840–Sept. 1848.

    The Wasp. Nauvoo, IL. Apr. 1842–Apr. 1843.

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

    Journal of the Senate of the Thirteenth General Assembly of the State of Illinois, at Their Regular Session, Begun and Held at Springfield, December 5, 1842. Springfield, IL: William Walters, 1842.

    Warsaw Signal. Warsaw, IL. 1841–1853.

    Illinois General Assembly. Enrolled Acts of the General Assembly, 1818–2012. Illinois State Archives, Springfield.

    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.