Ordinance, 5 July 1842–A
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Source Note
Nauvoo City Council, Ordinance, [, Hancock Co., IL], 5 July 1842. Featured version copied [ca. 5 July 1842] in Nauvoo City Council Minute Book, pp. 86–87; handwriting of . For more complete source information, see the source note for Nauvoo City Council Minute Book, 1841–1845.
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Historical Introduction
On the morning of 5 July 1842, the city council of , Illinois, met and passed an ordinance granting Nauvoo citizens the protection of . This ordinance was passed in response to allegations of JS’s involvement in the attempted assassination of former governor and growing concern that JS would be extradited to Missouri to face charges. On 24 June, JS had written to governor , expressing fears that the alienated , who was no longer affiliated with the , was “colleaguing with some of our former cruel persecuters the missourians.” In a 27 June letter to the Sangamo Journal, Bennett declared that he was willing to help extradite JS to Missouri. It was during this tense time that the city council passed the ordinance featured here.The right of habeas corpus, which has roots in English common law, allowed individuals who had been arrested or detained to appeal for a writ of habeas corpus. When granted by a judge with proper jurisdiction, that writ required authorities to bring the individual before a court to consider the legality of the arrest or detainment. This right appears in the Constitution, as well as the 1818 Constitution. JS first attempted to use the right of habeas corpus in . In early 1839, after he and other Latter-day Saints were jailed in Missouri, they petitioned for a writ of habeas corpus. This effort resulted in ’s release, but JS and the others remained imprisoned. A second petition to the Missouri Supreme Court also failed to secure their release. JS had more success using habeas corpus in Illinois, in large part because the church had better relations with state officials there. In June 1841, JS was arrested as part of Missouri officials’ first effort to extradite him to Missouri, which was based on crimes JS had allegedly committed during the Missouri War, but JS obtained a writ of habeas corpus and the arrest warrant was found to be invalid.Additionally, JS’s efforts proved more successful in because the Saints had greater ability to control local laws. The charter gave the municipal court “power to grant writs of habeas corpus in all cases arising under the ordinances of the City Council.” Other cities in Illinois had been granted municipal courts with habeas corpus powers during the 1830s, although those courts were given explicit authorization to issue writs for alleged violations of state law. Even though a provision in the 1840 city charter allowed writs of habeas corpus, the 5 July 1842 ordinance was the first time the city formally acted on such an option.In expanding the power of the municipal court, the ordinance featured here went beyond an 1827 statute regulating habeas corpus. While the statute allowed officials to remove individuals “demanded by the executive” of any state “from one place to another,” the 5 July 1842 ordinance granted citizens a right to trial in . The ordinance later drew sharp criticism from some outside the church, including , who challenged the legality of allowing Nauvoo’s municipal court to grant a writ of habeas corpus in cases involving crimes unrelated to Nauvoo’s city ordinances or to investigate “any writ,” which presumably included those issued outside of Nauvoo. Latter-day Saints would justify their actions by arguing that because the charter granted them the authority to make laws “not repugnant to the Constitution of the , or of this State,” they could pass laws that contradicted state law. The ordinance was published in the 16 and 30 July 1842 issues of the Wasp. It was the first in a series of ordinances on habeas corpus passed by the city council in response to fears of JS’s potential extradition in 1842., the city recorder, inscribed this 5 July ordinance on a loose sheet, presumably during the council meeting. He apparently used the loose sheet, still extant, to record the final version of the ordinance in the Nauvoo City Council Minute Book, which is the version featured here. No substantial differences exist between these and later versions.
Footnotes
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1
Allegations that JS was involved began to spread within weeks of the attempted assassination on 6 May 1842. (“Assassination of Ex-Governor Boggs of Missouri,” Quincy [IL] Whig, 21 May 1842, [3]; see also Letter to Sylvester Bartlett, 22 May 1842.)
Quincy Whig. Quincy, IL. 1838–1856.
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3
John C. Bennett, Nauvoo, IL, 27 June 1842, Letter to the Editor, Sangamo Journal (Springfield, IL), 8 July 1842, [2].
Sangamo Journal. Springfield, IL. 1831–1847.
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4
According to Bouvier’s Law Dictionary, a writ of habeas corpus was an order signed by a judge that directed the arresting officer or more generally “any one having a person in his custody or under his restraint” to produce a specified person “at a certain time and place, and to state the reasons why he is held in custody, or under restraint.” (“Habeas Corpus,” in Bouvier, Law Dictionary, 1:454.)
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.
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5
Blackstone, Commentaries, 2:103–107; “Habeas Corpus,” in Bouvier, Law Dictionary, 1:454–456; U.S. Constitution, art. 1, sec. 9; Illinois Constitution of 1818, art. 8, sec. 13; see also Walker, “Habeas Corpus in Early Nineteenth-Century Mormonism,” 5–97.
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: Deacon and Peterson, 1854.
Illinois Office of Secretary of State. First Constitution of Illinois, 1818. Illinois State Archives, Springfield.
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.
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6
The earliest instance of JS petitioning for habeas corpus was apparently in August 1838, when JS’s clerks prepared a petition to be given to Elias Higbee. (See Petition to Elias Higbee, ca. 16 Aug. 1838 [State of Missouri v. JS et al. for Riot], George W. Robinson, Papers, CHL.)
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8
See Petition to George Tompkins, between 9 and 15 Mar. 1839.
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9
JS obtained the writ of habeas corpus in Quincy, Illinois, and the subsequent hearing was held in Monmouth, Illinois, and presided over by Stephen A. Douglas, an associate justice of the Illinois Supreme Court. Douglas ruled that the writ used to arrest JS, although originally valid, had been returned to Illinois governor Thomas Carlin before it was used to arrest JS and was therefore no longer valid. (“The Late Proceedings,” Times and Seasons, 15 June 1841, 2:447–449; see also Historical Introduction to Statement of Expenses to Thomas King, 30 Sept. 1841.)
Times and Seasons. Commerce/Nauvoo, IL. Nov. 1839–Feb. 1846.
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10
Act to Incorporate the City of Nauvoo, 16 Dec. 1840; see also Kimball, “Nauvoo Charter,” 41–43.
Kimball, James L., Jr. “A Wall to Defend Zion: The Nauvoo Charter.” BYU Studies 15, no. 4 (Summer 1975): 491–497.
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11
The judge of the Chicago Municipal Court was authorized to issue writs of habeas corpus and “to perform all the judicial duties appertaining to the office of judge of the circuit courts.” Likewise, the judge of the Alton Municipal Court was authorized to issue writs of habeas corpus, “and the same proceedings shall be had thereon before said judge and court as may be had in like cases before the circuit judges and circuit courts of this State, respectively.” (An Act in Relation to the Municipal Court of Chicago, and for Other Purposes [21 July 1837], Laws of the State of Illinois [10–23 July 1837], pp. 15–16; An Act to Amend an Act, Entitled, “An Act to Incorporate the City of Alton” [2 Mar. 1839], Incorporation Laws of the State of Illinois [1838–1839], p. 240, sec. 1.)
Incorporation Laws of the State of Illinois; Passed at a Session of the General Assembly, Begun and Held at Vandalia the 6th Day of December, 1836. Vandalia, IL; William Walters, 1837.
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12
The first section of the 1827 Illinois law on habeas corpus allowed individuals who had been charged or detained to “apply to the supreme or circuit courts . . . or any judge thereof . . . for a writ of habeas corpus.” (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. 322, sec. 1, 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.
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13
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. 326, sec. 11. This statute accorded with a state law, passed during the same month, regarding fugitives from justice. (See 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.
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14
See Thomas Carlin, Quincy, IL, to Emma Smith, [Nauvoo, IL], 7 Sept. 1842; “Recent Attempt to Arrest the Prophet,” Warsaw (IL) Signal, 13 Aug. 1842, [3]; and “An Ordinance,” Warsaw Signal, 20 Aug. 1842, [2].
Warsaw Signal. Warsaw, IL. 1841–1853.
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15
Act to Incorporate the City of Nauvoo, 16 Dec. 1840. Emma Smith made this argument in her 27 August 1842 letter to Governor Carlin, and JS made the same argument in a discourse given on 30 June 1843. (Emma Smith, Nauvoo, IL, to Thomas Carlin, 27 Aug. 1842; JS, Discourse, 30 June 1843, in Woodruff, Journal, 30 June 1843; see also “Vested Rights of Nauvoo,” Nauvoo Neighbor, 30 Aug. 1843, [2]; and Kimball, “Nauvoo Charter,” 41.)
Nauvoo Neighbor. Nauvoo, IL. 1843–1845.
Kimball, James L., Jr. “A Wall to Defend Zion: The Nauvoo Charter.” BYU Studies 15, no. 4 (Summer 1975): 491–497.
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16
“An Ordinance in Relation to Writs of Habeas Corpus,” Wasp, 16 July 1842, [4]; “An Ordinance Entitled ‘An Ordinance, in Relation to Writs of Habeas Corpus,’” Wasp, between 30 July and 4 Aug. 1842, [3].
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17
Later ordinances are found in Nauvoo City Council Minute Book, 8 Aug. 1842, 98–99; 9 Sept. 1842, 101; 14 Nov. 1842, 119–129; 8 Dec. 1843, 190–191.
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18
See Ordinance in Relation to Writs of Habeas Corpus, 5 July 1842, Nauvoo, IL, Records, CHL.
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