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Ordinance, 14 November 1842

Source Note

Nauvoo City Council, Ordinance, , Hancock Co., IL, 14 Nov. 1842. Featured version drafted [9–14 Nov. 1842]; handwriting of , two unidentified scribes, and JS; signatures of JS and ; twenty-two pages; Nauvoo, IL, Records, CHL. Includes revisions, docket, and redactions.
Ten leaves measuring 12⅜ × 7⅝ inches (31 × 19 cm). The leaves are ruled with about thirty-five horizontal printed lines (now faded). Embossed in the upper left corner of each recto is an oval containing seven stars and “D. & J. Ames”, the insignia of a Springfield, Massachusetts, paper mill firm established by brothers David and John Ames in 1828. Scribes left roughly every other line blank to save room for revisions. The pages are numbered 1–18. At some point, the leaves were fastened together at the top left corners of the rectos with a pin, which was subsequently removed. Additionally, two smaller leaves—measuring 11⅛ × 7⅝ inches (28 × 19 cm) and 3⅞ × 7⅝ inches (10 × 19 cm), respectively, and containing further textual revisions—were fastened with pins to the second and third pages. Upon completion, the ordinance was folded for filing and docketed.
This document was presumably kept among city records. In 1845 the city of Nauvoo was disincorporated. Many if not most of the city records were likely included in the various collections of city records listed in an inventory produced by the Church Historian’s Office (later Family and Church History Department) in 1846, when they were packed up along with church records that were taken to the Salt Lake Valley. The city records are also listed in inventories of church records created in 1855, 1878, and circa 1904. The Nauvoo, Illinois, records collection was arranged and cataloged by the Family and Church History Department (now CHL) in 2006. The document’s likely inclusion with the city records listed in early church inventories and its inclusion in the Nauvoo, Illinois, records collection in 2006 indicate continuous church custody since 1845.

Footnotes

  1. [1]

    Whiting, “Paper Making in New England,” 309; Gravell et al., American Watermarks, 235.

    Whiting, William. “Paper-Making in New England.” In The New England States: Their Constitutional, Judicial, Educational, Commercial, Professional and Industrial History, edited by William T. Davis, vol. 1, pp. 303–333. Boston: D. H. Hurd, 1897.

  2. [2]

    “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. Bills, Resolutions, and Related General Assembly Records, 1st–98th Bienniums, 1819–2015. Illinois State Archives, Springfield.

  3. [3]

    “Schedule of Church Records. Nauvoo 1846,” [1], Historian’s Office, Catalogs and Inventories, 1846–1904, CHL.

    Illinois General Assembly. Bills, Resolutions, and Related General Assembly Records, 1st–98th Bienniums, 1819–2015. Illinois State Archives, Springfield.

  4. [4]

    “Inventory. Historian’s Office. 4th April 1855,” [1]–[2]; “Index of Records and Journals in the Historian’s Office 1878,” [11]; “Index to Papers in the Historians Office,” ca. 1904, 7, Historian’s Office, Catalogs and Inventories, 1846–1904, CHL.

    Illinois General Assembly. Bills, Resolutions, and Related General Assembly Records, 1st–98th Bienniums, 1819–2015. Illinois State Archives, Springfield.

  5. [5]

    See the full bibliographic entry for Nauvoo, IL, Records, 1841–1845, in the CHL catalog.

Historical Introduction

On 14 November 1842, the city council of , Illinois, passed an ordinance expanding the municipal court’s power to grant writs of . Habeas corpus is a legal measure that guarantees prisoners the right to appear in court to challenge the legality of their arrest or detention. The right originated in English common law and was included in both the Constitution and the 1818 Constitution. In 1827 an Illinois statute specified that individuals who were charged or detained in the state could “apply to the supreme or circuit courts . . . or any judge thereof . . . for a writ of habeas corpus.” While this particular law did not apply to the Nauvoo Municipal Court, the city’s charter—granted by the state legislature—gave the court “power to grant writs of habeas corpus in all cases arising under the ordinances of the City Council.”
Since 1839, JS had used or attempted to use the right of habeas corpus to protect himself from what he saw as persecution in the form of wrongful legal prosecution at least three times, twice in 1839 when he was imprisoned in and once in 1841 when Supreme Court justice discharged him from custody during an attempt to extradite him to Missouri. Beginning in July 1842, Nauvoo’s city council passed a series of four ordinances, of which the ordinance featured here was the last, that delineated and expanded the municipal court’s authority to issue writs of habeas corpus. The first ordinance guaranteed citizens the right to habeas corpus hearings. The second ordinance, passed in August, clarified that the municipal court had authority to broadly investigate the “origin, validity, & legality” of the arrest and charge and specified the general conditions for discharging a prisoner. The third ordinance, passed in September, granted the court the ability to hold an immediate hearing on the writs it had issued.
The city council’s interest in clarifying and expanding its chartered right to issue writs of habeas corpus in summer and fall 1842 grew out of the renewed threat of JS’s extradition to . The council passed the city’s first ordinance on habeas corpus just days before the publication of a letter from that called for another attempt to extradite JS to Missouri. Bennett also accused JS of orchestrating the assassination attempt on former Missouri governor , which increased concerns about extradition. The council passed the second ordinance on the same day that JS sought a writ of habeas corpus from the municipal court following his arrest for extradition. The persistent attempts to extradite him to Missouri caused JS to spend much of August and October in hiding.
The measures to expand the city’s power to issue writs of habeas corpus were controversial in . In September, Illinois governor received word that had passed ordinances giving the municipal court power to issue writs to anyone arrested or imprisoned in the city regardless of whether they were arrested by state or federal authorities, and he warned that the city’s ordinances were a “gross usurpation of power” and a “burlesque upon the charter itself.” Carlin pointed to specific wording in the city charter and argued that the city had the power to issue writs only for arrests under city ordinances. , the subsequent governor, later claimed that the city council “had been repeatedly assured by some of the best lawyers in the State, who had been candidates for office, before that people, that it had full and competent power to issues writs of habeas corpus in all cases whatever.” Nevertheless, he too considered the Nauvoo ordinances to be “irregular and illegal.” In addition, at some point Nauvoo’s leadership promoted a narrow reading of a clause in the city charter, arguing that the city was bound only by the constitutions of Illinois and the —not by the laws of that state or nation. Thus, so long as the city council passed ordinances that were “not repugnant” to those constitutions, the leaders considered their actions justified. The council may have relied on this interpretation as it expanded the city’s authority beyond the bounds of Illinois state law.
Despite external opposition and objections, on 9 November 1842 the city council appointed , , and as a select committee to prepare a new bill to regulate habeas corpus proceedings in the city. The next day, the council read a draft of the bill. On 12 November, the council read the bill a second time and appointed a new committee—consisting of , John Taylor, , Orson Spencer, and —to amend the bill with the assistance of . After some additional discussion and amendments on 14 November, the city council passed the bill.
This fourth new ordinance dramatically expanded and strengthened the city’s authority over habeas corpus proceedings. The base text for this ordinance was the statute on habeas corpus passed in 1827, although the city council made several revisions to its provisions. While most of these revisions simply adapted the statute for application in , others changed the nature of the statute itself. Such substantial revisions include the deletion of language forbidding justices from questioning the “legality or justice of a judgment or decree of a court legally constituted,” the addition of language that allowed the municipal court to inquire into the guilt or innocence of the person charged, the removal of a section of the state statute that gave supremacy to federal courts, and the amendment of several provisions to allow prisoners to be transferred or extradited to neighboring counties or to another state under certain circumstances. Apparently these changes were made to prevent JS’s extradition to and to remove any legal threat to JS while he remained in Nauvoo. , a member of the city council, noted in his journal that once the city council passed the ordinance, JS “felt secure to stay at home as the law protected him as well as all other citizens.”
Although JS was the intended beneficiary of this city ordinance, or at least its primary beneficiary, many individuals in and around took advantage of the authority claimed by the city. At least twelve cases were argued before the Nauvoo Municipal Court between the passage of the ordinance—the first taking place within a week of its passage—and JS’s death. Some of the hearings suggest that the municipal court, presided over by JS, may not have understood or chose to ignore the legal technicalities governing writs of habeas corpus. The municipal court’s use of habeas corpus after the passage of this ordinance became a major source of tension between the Latter-day Saints and their neighbors, contributing to a rise in opposition to the church that eventually led to the murder of JS in 1844 and the repeal of the Nauvoo charter in 1845.
The earliest drafts of the ordinance are not extant. and two unidentified scribes prepared this rough copy. Sloan wrote sections 1–5 and 18–19, and one of the unidentified scribes wrote sections 6–17. As the city council deliberated over the ordinance, Sloan, both unidentified scribes, and, in a few instances, JS made changes to this copy of the ordinance. Most of these changes were minor, such as spelling corrections, though other small changes appear to have been made to increase the inclusivity of the ordinance by adding plural nouns or variant pronouns. For example, “or prisoners” was routinely added after “prisoner” and “his or her” was universally changed to “his, her, or their.” Once the council completed its deliberations and passed the ordinance on 14 November 1842, JS signed this rough copy. Sloan later copied the ordinance into the Nauvoo City Council minute book, and in accordance with the law, a copy was also published in a newspaper, the Wasp, on 3 December 1842.
The extant draft copy demonstrates JS’s direct involvement in the production of this ordinance. Moreover, it concludes with his autograph signature and title as ’s mayor, showing an intent to make it law in Nauvoo. For these reasons, this version is featured here.

Footnotes

  1. [1]

    Tucker, Blackstone’s Commentaries, 1:290–291; U.S. Constitution, art. 1, sec. 9; Illinois Constitution of 1818, art. 8, sec. 13.

    Tucker, St. George. Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia. 5 vols. Philadelphia: William Young Birch and Abraham Small, 1803.

  2. [2]

    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, italics in original.

    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.

  3. [3]

    Act to Incorporate the City of Nauvoo, 16 Dec. 1840.

  4. [4]

    Petition to George Tompkins, between 9 and 15 Mar. 1839; “The Late Proceedings,” Times and Seasons, 15 June 1841, 2:447–449.

    Times and Seasons. Commerce/Nauvoo, IL. Nov. 1839–Feb. 1846.

  5. [5]

    Ordinance, 5 July 1842; Nauvoo City Council Minute Book, 8 Aug. and 9 Sept. 1842, 98–101.

  6. [6]

    “Astounding Mormon Disclosures! Letter from Gen. Bennett,” Sangamo Journal (Springfield, IL), 8 July 1842, [2]; “Further Mormon Developments!! 2d Letter from Gen. Bennett,” Sangamo Journal, 15 July 1842, [2].

    Sangamo Journal. Springfield, IL. 1831–1847.

  7. [7]

    JS, Journal, 8 Aug. 1842.

  8. [8]

    See JS, Journal, 10–23 Aug. and 7–28 Oct. 1842.

  9. [9]

    Thomas Carlin, Quincy, IL, to Emma Smith, 7 Sept. 1842.

  10. [10]

    Message of the Governor of the State of Illinois, 4.

    Message of the Governor of the State of Illinois, in Relation to the Disturbances in Hancock County, December, 21, 1844. Springfield, IL: Walters and Weber, 1844.

  11. [11]

    People in Nauvoo publicly argued for this interpretation by late 1842, though they may have privately adopted this understanding much earlier. (See “Remarks on Chartered Rights,” Wasp, 24 Dec. 1842, [2]–[3]; “Vested Rights of Nauvoo,” Nauvoo Neighbor, 30 Aug. 1843, [2]–[3]; Oaks, “Suppression of the Nauvoo Expositor,” 878–884; Walker, “Habeas Corpus in Early Nineteenth Century Mormonism,” 5–97; and Smith, “Untouchable,” 8–42.)

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

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

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

    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.

    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.

  12. [12]

    Nauvoo City Council Rough Minute Book, 9–14 Nov. 1842, 45–48.

  13. [13]

    See An Act Regulating the Proceeding on Writs of Habeas Corpus [22 Jan. 1827], Public and General Statute Laws of the State of Illinois, pp. 324–326, secs. 3, 8, 10, 11.

    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.

  14. [14]

    Woodruff, Journal, 7–12 Nov. 1842.

    Woodruff, Wilford. Journals, 1833–1898. Wilford Woodruff, Journals and Papers, 1828–1898. CHL. MS 1352.

  15. [15]

    On 19 November 1842, George Brown, a Latter-day Saint in Nauvoo who had been arrested and ordered to stand trial before the Hancock County Circuit Court for larceny, petitioned the Nauvoo Municipal Court for a writ of habeas corpus. On 21 November, the court held a hearing for Brown and discharged him. (Nauvoo Municipal Court Docket Book, 8 [second numbering].)

    Nauvoo Municipal Court Docket Book / Nauvoo, IL, Municipal Court. “Docket of the Municipal Court of the City of Nauvoo,” ca. 1843–1845. In Historian's Office, Historical Record Book, 1843–1874, pp. 51–150 and pp. 1–19 (second numbering). CHL. MS 3434.

  16. [16]

    In habeas corpus proceedings, courts only had the authority to remand prisoners and set their bail or to discharge them from custody. An editorial in the 15 August 1842 issue of the Times and Seasons acknowledged that habeas corpus hearings could not determine innocence or guilt, demonstrating that at least some church leaders were aware of the limitations of habeas corpus. Nevertheless, on at least two occasions the Nauvoo Municipal Court acquitted the prisoners from all charges in addition to discharging them from custody. (Tucker, Blackstone’s Commentaries, 1:291–292; Kent, Commentaries on American Law, 2:25; “Persecution,” Times and Seasons, 15 Aug. 1842, 3:888–889; Nauvoo Municipal Court Docket Book, 17–19 [second numbering], 51–52.)

    Tucker, St. George. Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia. 5 vols. Philadelphia: William Young Birch and Abraham Small, 1803.

    Kent, James. Commentaries on American Law. Vol. 2. New York: O. Halsted, 1827.

    Nauvoo Municipal Court Docket Book / Nauvoo, IL, Municipal Court. “Docket of the Municipal Court of the City of Nauvoo,” ca. 1843–1845. In Historian's Office, Historical Record Book, 1843–1874, pp. 51–150 and pp. 1–19 (second numbering). CHL. MS 3434.

  17. [17]

    “Introductory,” Nauvoo (IL) Expositor, 7 June 1844, [2]; Message of the Governor of the State of Illinois, 4, 21; Smith, “Untouchable,” 8–42.

    Nauvoo Expositor. Nauvoo, IL. 1844.

    Message of the Governor of the State of Illinois, in Relation to the Disturbances in Hancock County, December, 21, 1844. Springfield, IL: Walters and Weber, 1844.

    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.

  18. [18]

    Nauvoo City Council Minute Book, 14 Nov. 1842, 119–129; “An Ordinance Regulating the Proceedings on Writs of Habeas Corpus,” Wasp, 3 Dec. 1842, [1]–[2].

Asterisk (*) denotes a "featured" version, which includes an introduction and annotation. Ordinance, 14 November 1842 Nauvoo City Council Minute Book, 1841–1845 Ordinance, 14 November 1842, as Published in the Wasp History, 1838–1856, volume D-1 [1 August 1842–1 July 1843] “History of Joseph Smith”

Page 7

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 <​or Persons​> either unauthorized to issue or execute the same, or where the person <​or Persons​> having the Custody of the Prisoner <​or Prisoners​> under such process is not the Person <​or Persons​> empowered by law to detain him <​her or them​>; sixth, where the process appears to have been obtained by false pretence 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. In all cases where the imprisonment is for a criminal, or supposed criminal matter, if it shall appear to the said Court, that there is sufficient legal cause for the commitment of the Prisoner, <​or Prisoners,​> although such commitment may have been informally made, or without due authority, or the process may [p. 7]
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Document Information

Related Case Documents
Editorial Title
Ordinance, 14 November 1842
ID #
11909
Total Pages
24
Print Volume Location
JSP, D11:206–222
Handwriting on This Page
  • James Sloan

Footnotes

  1. [16]

    The Nauvoo city ordinance here omitted a sentence from the 1827 state statute that read, “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.” This clause limited a court’s or judge’s ability to look behind the indictment or arrest warrant to inquire into the evidence leading to the arrest. This practice of looking behind the indictment or warrant was forbidden by English common law but had become more common in the United States during the nineteenth century. During Missouri’s first attempt to extradite JS in 1841, JS’s attorneys called upon several witnesses to testify regarding the treatment of the Saints in Missouri. The Illinois state attorneys, however, “objected to hearing evidence on the merits of the case, as they could not go beyond the indictment,” likely referring to this portion of the Illinois statute. Ultimately, Stephen A. Douglas, the circuit court justice hearing the case, skirted the controversy and released JS on a technicality. In crafting the habeas corpus city ordinances, the Nauvoo City Council had clearly been concerned with avoiding similar challenges in the future. The 8 August 1842 city ordinance on habeas corpus explicitly required the municipal court to examine “the origin, validity, & legality of the Writ or Process, under which such arrest was made” and directed the court to “fully hear the merits of the case, upon which such arrest was made, upon such evidence as may be produced and sworn before said Court.” (An Act . . . on Writs of Habeas Corpus, p. 324, sec. 3, italics in original; Walker, “Habeas Corpus in Early Nineteenth-Century Mormonism,” 14–21; “The Late Proceedings,” Times and Seasons, 15 June 1841, 2:447–449; Nauvoo City Council Minute Book, 8 Aug. 1842, 98.)

    The Revised Code of Laws, of Illinois, Enacted at the Fifth General Assembly, at Their Session Held at Vandalia, Commencing on the Fourth Day of December, 1826, and Ending the Nineteenth of February, 1827. Vandalia, IL: Robert Blackwell, 1827.

    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.

    Times and Seasons. Commerce/Nauvoo, IL. Nov. 1839–Feb. 1846.

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