Law in Joseph Smith's day
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SPRINGFIELD, ILL.
American law in Joseph Smith's day is almost unrecognizable today, because so much has changed, and one must be careful and meticulous in combining the tools, legal research and statutory and documentary analysis in drawing conclusions, said John W. Welch, a professor at the J. Reuben Clark Law School at BYU.
Brother Welch chaired a May 23 session on Joseph Smith and the law in Illinois at the 44th annual Mormon History Association Conference in Springfield. He introduced three presenters, each associated with the Legal and Business Series of the Joseph Smith Papers project of the Church History Department.
Jeffrey N. Walker's paper dealt with Joseph Smith's use of the writ of habeas corpus in defending himself against the charges of his enemies toward the end of his life.
"It is a fundamental safeguard," Brother Walker said, "that has been established to protect individual personal liberty. The basic concept is that if you believed you've been imprisoned wrongfully, you have the right to petition a court, other than the one that put you in prison, to have it reviewed."
That said, the reason for use of habeas corpus is different today than in Joseph's day, he noted. Today, more than 99 percent of the time it is used after someone has been convicted, sentenced and is in prison; less than 1 percent of the time it is used in the post-arrest phase of a criminal proceeding. The reason for that, he said, is greater efficiency today in moving through the legal system.
Looking at 906 reported cases between 1800 and 1850, Brother Walker found that about 40 percent came post-arrest. "The reason for that is that in early American law, we held people much more commonly for this phase," he said.
In such an early stage, the use of habeas corpus is different in that it requires a "mini-trial" of sorts to be held to decide the merits of the case, he said. In a later stage, habeas corpus would be used to scrutinize whether proper procedure was followed in the case. Thus, under then-existing law, the greatest amount of factual scrutiny was permitted in the post-arrest phase.
"One of the great complaints was that Nauvoo was abusing the right of habeas corpus," he said. Due to past experience with legal injustice, Nauvoo city officials enacted ordinances ensuring the use of habeas corpus to grant a full review of a case prior to indictment. The ordinance most criticized was, in fact, modeled after Illinois state statute, Brother Walker said.
He quoted a sentence reported from a speech given in Nauvoo June 30, 1843, by Joseph Smith who had returned after avoiding extradition to Missouri: "Deny me the right of habeas corpus and I will fight with guns, sword, cannon behind and thunder till I am used up like the Kilkenny Cat."
Attorney Morris A. Thurston spoke of Joseph Smith's visit to Springfield in 1842 to answer an attempt to extradite him as an accessory in the attempted assassination of former Missouri Gov. Lilburn W. Boggs.
"After avoiding Illinois law men for several months, Joseph decided to travel to Springfield for a hearing on a habeas corpus motion," Brother Thurston said.
Spurred on by an apostate Mormon, Boggs had given an affidavit accusing Joseph Smith and Orrin Porter Rockwell in the crime. Based on that affidavit, Missouri Gov. Thomas Reynolds requisitioned the extradition of the two to stand trial. Illinois Gov. Thomas Carlin issued warrants for their arrest.
When served in Nauvoo, Joseph and Porter Rockwell immediately obtained a writ of habeas corpus from the municipal court under a recently enacted statute granting the court the authority to hear such writs on the merits of the motion.
It was a non-traditional use of habeas corpus, and opponents of the Mormons criticized it.
In early December 1842, Thomas Ford was elected governor of Illinois. "Joseph sent a delegation to Springfield to sound out the new chief executive," Brother Thurston recounted, "as to whether he would be willing to rescind the arrest warrant that Carlin had issued. Although Ford would not take unilateral action, he did receive encouraging informal opinions from most of the Illinois Supreme Court justices that Joseph would prevail in his case if it were heard in the proper court."
On Dec. 27, 1842, Joseph and close associates journeyed to Springfield. They arrived on Dec. 30 and stayed at the home of Mormon Judge James Adams.
Joseph's attorney, Justin Butterfield, had determined it would best to bring the case before the U.S. District Court for Illinois to be heard by Judge Nathanael Pope. The courtroom where the case was heard is part of a tourist attraction today in the Tinsley Building, across from the Old Capitol Building in Springfield.
"It's difficult to overstate the commotion that the arrival of Joseph Smith and his entourage caused in Springfield," Brother Thurston said.
The speaker of the House of Representatives offered the hall where they met to the Mormons for preaching; Joseph designated apostles Orson Hyde and John Taylor for that assignment, and they preached to packed houses.
Brother Thurston said the courtroom was packed on each day of the hearing, and a number of society ladies were present, including Abraham Lincoln's wife, Mary Todd Lincoln.
A key question in the extradition case was whether Joseph could have fled from Missouri justice, since that was a prerequisite for extradition, if he had not been in the state at the time of the shooting. Butterfield submitted affidavits from several individuals attesting that Joseph had been in Nauvoo at the time. One of these affidavits was signed by Stephen A. Douglas, then a justice of the Illinois Supreme Court and later candidate for U.S. President against Lincoln.
Pope said in his opinion that nothing in Boggs' affidavit showed that Joseph had actually fled from Missouri.
"The Mormon Prophet stood, bowed to the judge and thanked him," Brother Thurston recounted. "And then Pope invited Smith and Butterfield to his chambers where they spent an hour in conversation together."
Riding home to Nauvoo in snow-covered mud, the Mormon contingent suffered damage to one of their carriages. In good spirits, they jokingly agreed they should send the bill to Gov. Boggs, Brother Thurston said.
He assessed Joseph's experience in Springfield as "a moment of sunshine in the midst of a gathering storm."
Joseph I. Bentley, the third presenter in the session, said, "The suppression of the Nauvoo Expositor is commonly thought to be the event that led to the death of Joseph Smith."
He added, "But much less known is a completely different matter that did lead directly to the martyrdom, and more obscure still are the types and frequency of legal cases that arose from those actions and their ultimate outcomes."
As a response to mob outrage stemming from the Expositor incident, Joseph declared martial law "to preserve the city and the lives of its citizens," Brother Bentley said. The Nauvoo Legion was thus called to duty. At the same time, Joseph requested Gov. Thomas Ford come and help him keep the peace.
"Joseph boldly addressed the legion with a drawn and uplifted sword defying mob rule but not official authority," Brother Bentley said. "This show of force may have actually forestalled an expected invasion of Nauvoo that was actually planned for that same week, and it certainly did protect the saints for the moment, but it is what ultimately caused the death of Joseph and Hyrum Smith, this one act."
It provoked a charge of treason, which placed Joseph and Hyrum in Carthage Jail to await trial. There they were murdered by a mob.
