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The Habeas Corpus Protection of Joseph Smith from Missouri Arrest Requisitions View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by ResearchOnline@ND The University of Notre Dame Australia ResearchOnline@ND Law Papers and Journal Articles School of Law 2018 The habeas corpus protection of Joseph Smith from Missouri arrest requisitions A Keith Thompson The University of Notre Dame Australia, [email protected] Follow this and additional works at: https://researchonline.nd.edu.au/law_article Part of the Law Commons This article was originally published as: Thompson, A. K. (2018). The habeas corpus protection of Joseph Smith from Missouri arrest requisitions. Interpreter: A Journal of Mormon Scripture, 29, 273-306. Original article available here: https://www.mormoninterpreter.com/journal/ This article is posted on ResearchOnline@ND at https://researchonline.nd.edu.au/law_article/80. For more information, please contact [email protected]. This is an Open Access article distributed in accordance with the Creative Commons Attribution-Non Commercial-No Derivatives 4.0 International license (CC BY-NC-ND 4.0), which permits others to copy and redistribute the material in any medium or format. You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may not use the material for commercial purposes. If you remix, transform, or build upon the material, you may not distribute the modified material. See: https://creativecommons.org/licenses/by-nc-nd/4.0/ This article originally published in Interpreter: A Journal of Mormon Scripture available at: https://www.mormoninterpreter.com/the-habeas-corpus-protection-of-joseph-smith-from- missouri-arrest-requisitions/ No changes have been made to this article. Thompson, A.K. (2018) The habeas corpus protection of Joseph Smith from Missouri arrest requisitions. Interpreter: A Journal of Mormon Scripture, 29, 273-306. Retrieved from https://www.mormoninterpreter.com/the-habeas-corpus-protection-of-joseph-smith-from- missouri-arrest-requisitions/ INTERPRETER§ A Journal of Mormon Scripture Volume 29 · 2018 · Pages 273 - 306 The Habeas Corpus Protection of Joseph Smith from Missouri Arrest Requisitions A. Keith Thompson Offprint Series © 2018 The Interpreter Foundation. A 501(c)(3) nonprofit organization. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/4.0/ or send a letter to Creative Commons, 444 Castro Street, Suite 900, Mountain View, California, 94041, USA. ISSN 2372-1227 (print) ISSN 2372-126X (online) The goal of The Interpreter Foundation is to increase understanding of scripture through careful scholarly investigation and analysis of the insights provided by a wide range of ancillary disciplines, including language, history, archaeology, literature, culture, ethnohistory, art, geography, law, politics, philosophy, etc. Interpreter will also publish articles advocating the authenticity and historicity of LDS scripture and the Restoration, along with scholarly responses to critics of the LDS faith. We hope to illuminate, by study and faith, the eternal spiritual message of the scriptures—that Jesus is the Christ. Although the Board fully supports the goals and teachings of the Church, The Interpreter Foundation is an independent entity and is neither owned, controlled by nor affiliated with The Church of Jesus Christ of Latter-day Saints, or with Brigham Young University. All research and opinions provided are the sole responsibility of their respective authors, and should not be interpreted as the opinions of the Board, nor as official statements of LDS doctrine, belief or practice. This journal is a weekly publication of the Interpreter Foundation, a non-profit organization located at InterpreterFoundation.org. You can find other articles published in our journal at MormonInterpreter.com. You may subscribe to this journal at MormonInterpreter.com/annual- print-subscription. The Habeas Corpus Protection of Joseph Smith from Missouri Arrest Requisitions A. Keith Thompson Abstract: This is the first of two articles discussing Missouri’s requisitions to extradite Joseph Smith to face criminal charges and the Prophet’s recourse to English habeas corpus practice to defend himself. In this article, the author presents research rejecting the suggestion that the habeas corpus powers of the Nauvoo City Council were irregular and explains why the idea that the Nauvoo Municipal Court lacked jurisdiction to consider interstate habeas corpus matters is anachronistic. In the second article, the author analyzes the conduct of Missouri Governor Thomas Reynolds in relation to the requisitions for Joseph Smith’s extradition. Even by the standards of the day, given what he knew, his conduct was unethical. ormer Illinois Governor Thomas Ford and the Warsaw Signal editor FThomas Sharp, together with Sharp’s correspondents, popularized the view that the use Joseph Smith and the Latter-day Saints made of the English writ of habeas corpus during the Nauvoo period was suspect.1 In fact, it was Missouri’s willingness to pursue Joseph Smith’s extradition, even though it had dismissed the underlying indictments, that forced 1. Thomas Ford, History of Illinois, From Its Commencement as a State in 1818 to 1847 (Chicago: S.C. Griggs and Co, 1854), 265. Note that Governor Ford had criticized the Mormon use of powers under the Nauvoo Charter in his letter to the Saints dated 22 June 1844 which was published by Thomas Sharp in the Warsaw Signal on 29 June 1844. 274 • Interpreter: A Journal of Mormon Scripture 29 (2018) Smith’s recourse to the now-misunderstood English habeas corpus process and seeded the resentment of later enemies.2 In his History of Illinois in 1854, Ford wrote that the Nauvoo Charter’s provisions were “unheard of, and anti-republican in many particulars; and capable of infinite abuse by a people disposed to abuse them.”3 Though he had formerly held office as an Illinois Supreme Court Justice,4 objectivity was not to be expected from Governor Ford. He had promised Joseph Smith safe conduct if he went to Carthage5 and was thus considered responsible for the martyrdom by the Latter-day Saints. Thomas Sharp quoted Charles Foster in his newspaper, suggesting that “Joseph’s escape from arrest through habeas corpus writs in the Nauvoo municipal court,”6 was just one example of “galling oppression”7 by the Mormon majority in Nauvoo. Sharp began his relationship with the Mormons as a “neutral observer”8 who “reported the issuance of the Nauvoo Charter without editorial comment” in January 1841,9 but he became a Mormon-hater within a few months, largely because of the Mormon reaction to his criticism of John C. Bennett’s appointment 2. See, for example, Jeffrey N. Walker, “Habeas Corpus in Early Nineteenth- Century Mormonism, Joseph Smith’s Legal Bulwark for Personal Freedom,” BYU Studies Quarterly 52, no. 1 (2013), 4–97. I discuss Judge Thomas Reynolds’ dismissal of the underlying indictments in my following article, “Missourian Efforts to Extradite Joseph Smith and the Ethics of Governor Thomas Reynolds of Missouri,” Interpreter: A Journal of Mormon Scripture (forthcoming). 3. Ford, History of Illinois, 265. 4. “Thomas Ford,” Governors of Illinois, Online Biographies (website), accessed February 8, 2018, http://www.onlinebiographies.info/gov/il/ford-t.htm. 5. Letter from Governor Ford to Joseph Smith, June 22, 1844, History of the Church 6:533–537, accessed April 23, 2016, http://law2.umkc.edu/faculty/projects/ ftrials/carthage/fordletter.html. Note that Governor Ford sets out some of his objections to the Nauvoo Charter and the Nauvoo Municipal Court’s exercise of its habeas corpus powers in this letter. However, note also that Governor Ford had earlier received Joseph Smith favorably and cooperated with him and his counsel, Justin Butterfield, in connection with the dismissal of his predecessor’s warrants to arrest Joseph in connection with the attempted murder of former Governor Boggs in Missouri. 6. Richard Bushman, Rough Stone Rolling, A Cultural History of Mormonism’s Founder (New York: Alfred A. Knopf, 2005), 533; quoting from January 10, 17, and February 7 editions of the Warsaw Message in 1844, and from Charles A. Foster’s letter to the Editor of the same newspaper renamed the Warsaw Signal on April 12, 1844. 7. Ibid. 8. Ibid., 427. 9. Ibid. Thompson, The Habeas Corpus Protection of Joseph Smith • 275 as Mayor of Nauvoo and his concern about “the political power of the growing number of Mormons in Hancock County.”10 That political power was demonstrated in Sharp’s loss in the 1842 Hancock County election for the Illinois legislature to William Smith, the Mormon Apostle and brother of the Prophet.11 Joseph Smith became something of an expert in the law12 as a result of the many legal cases in which he was involved.13 The purpose of this article is to show that neither he nor the other Latter-day Saints misused the English writ of habeas corpus in connection with Missouri’s efforts to extradite him to face criminal charges in that state. Indeed, the habeas corpus power in the Nauvoo Charter and the use that was made of it was reasonable, predictable, and legal according to the standards of the times. I have approached this task in four parts. First, I summarize the nature of the habeas corpus powers provided to Nauvoo by its charter, and I concur with the assessment of James L. Kimball and Jeffrey N. Walker that despite what Governor Ford wrote in 1854, there was nothing particularly unusual about those powers when they were granted in 1840. Second, to correct misunderstanding as to how habeas corpus worked in Illinois in the 1840s, I trace the history of the habeas corpus writ from England into the Western United States during the period before the Civil War, and I reject the notion that this writ predated Magna Carta and was always an instrument designed to protect the rights of prisoners.
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