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Question: Was the Mormons' use of the Nauvoo city charter to invalidate writs from other jurisdictions improper?: Difference between revisions
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Carlin, the governor of Illinois at the time, characterized it as an "extraordinary assumption of power….most absurd and ridiculous…[a] gross usurpation of power that cannot be tolerated." | Carlin, the governor of Illinois at the time, characterized it as an "extraordinary assumption of power….most absurd and ridiculous…[a] gross usurpation of power that cannot be tolerated." | ||
{{main|Nauvoo city charter | {{main|Nauvoo city charter|Nauvoo city charter/habeas corpus}} | ||
===Source(s) of the criticism=== | ===Source(s) of the criticism=== | ||
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Criticism
Critics charge that the Mormon's use of the Nauvoo city charter to invalidate writs from other jurisdictions was improper.
Carlin, the governor of Illinois at the time, characterized it as an "extraordinary assumption of power….most absurd and ridiculous…[a] gross usurpation of power that cannot be tolerated."
Source(s) of the criticism
Response
Wrote two historians of LDS legal matters:
- When some criticized Smith's use of the writ of habeas corpus under the charter, he justified this interpretation of the city's charter powers:
- The city council have passed an ordinance "that no citizen of this city shall be taken out of this city by any writ, without the privilege of a writ of habeas corpus." There is nothing but what we have power over, except where restricted by the constitution of the United States .... If these powers are dangerous, then the constitution of the United States and of this State are dangerous; but they are not dangerous to good men: they are only so to bad men who are breakers of the laws. So with the laws of the country, and so with the ordinances of Nauvoo: they are dangerous to mobs, but not to good men who wish to keep the laws.[1]
- This constitutionlike interpretation resembles the authoritative interpretation of the federal constitution's "necessary and proper" clause by Chief Justice John Marshall in McCulloch v. Maryland (US 17:316), upholding the constitutionality of a national bank.
- Another doctrine added credibility to Smith's idea of Nauvoo as a city-state. Although the United States Supreme Court in Charles River Bridge v. Warren Bridge (US 36:420) had just rejected the notion that state legislatures could grant charters irrevocable by later legislatures, the 1819 case Dartmouth College v. Woodward (US 17:518), which had held that a later legislature could not unilaterally modify a charter granted by an earlier legislature, still influenced the thinking of many in state and local government. Public grants and charters were widely viewed as irrevocable and were interpreted broadly as conveying all the governing power that the granting body could convey (Kimball 1975, 495-96). This popular view was expressed in an editorial in the Wasp, a local Nauvoo newspaper, in March 1843, questioning:
- What reliance can be placed upon a legislature that will one session grant a charter to a city, with "perpetual succession," and another session take it away? . . . The house, in the dignity of its standing, passes a bill, at the request of the people, telling them that they shall have a charter granting them several privileges, and telling them that it shall be perpetual, without any repealing clause.[2]
- … With Nauvoo's governmental machinery in place, Joseph Smith and the city council attempted to insulate themselves from what the Mormons saw as continuing harassment through vexatious lawsuits. To accomplish these ends, the council passed numerous ordinances, some of which would be considered unconstitutional by today's standards.
- …[O]n 21 December 1843, an ordinance was passed to "prevent unlawful search and seizure of person or property by foreign process in the city of Nauvoo." This act required that all writs of warrants "issued out of the city" be executed in the presence of the Nauvoo marshall after receiving the "approval and signature of the Mayor."…
- This last ordinance raised the objections of three Carthage lawyers, who expressed their concern to Joseph Smith. They said that the citizens of Carthage felt this ordinance was designed to "hinder the execution of the statutes in the city [i.e., Nauvoo], consequently they, the old citizens, felt disposed to stop the execution of processes issuing from the city in the County" (CCR, 199). Smith explained that the statute was designed to prevent what he not unreasonably considered to be kidnapping by process.[3]
Because of the expressed concerns, a section was added, reading:
- "Sec. 4. Be it ordained by the city council of the city of Nauvoo, that nothing in the foregoing ordinance shall be so construed so as to prevent, hinder, or thwart the designs of justice, or to retard the civil officers of the State or County in the discharge of their official duties, but to aid and assist them within the limits of this city." (CCR, 200)[4]
Habeus corpus
Issues with habeus corpus ultimately created the most problems. The authors cited above continue:
- [Some suggest] that the Mormon people expressly included such a power in their charter to avoid the reach of law into the city. This is probably untrue since Nauvoo was not the first Illinois city to be granted the power to issue writs of habeas corpus. It is more probable that the provision was included in the charter with little thought of its potential effectiveness in stopping foreign process or of its necessity for the Saints' protection, despite their recent experience in Missouri. The habeas corpus provision acquired its force through use, until it came to be relied on whenever a problem with outside law arose….
- Governor Carlin reasonably considered the ordinance and the Mormons' interpretation of legislative power under the charter to be at odds with the legislative intent of the bill incorporating the City of Nauvoo….under Carlin's interpretation of the city charter, the municipal court had power to issue a writ of habeas corpus only when the prisoner was held under the authority of the city of Nauvoo.
- Although Carlin's position would probably prevail today, the Mormon position was not unreasonable. In fact, given the type of city government created by the charter, it may have been the most reasonable interpretation. The charter provided that the justices of the municipal court should be the mayor and aldermen of the city—the same persons normally responsible for exercising the city's authority to arrest and confine persons. As legal scholar Dallin Oaks (1965b, 881) concludes:
- If imprisonments brought about by its own membership were the only kinds of official restraints that the municipal court could examine by habeas corpus, the habeas corpus power conferred in the charter would be practically meaningless. In this view, the charter must [have] contemplate[d] that the municipal court's habeas corpus power [would] be available to review some confinements other than those initiated by the membership of the municipal court itself.
- Furthermore, some of the best lawyers in Illinois had repeatedly assured the Mormons that the municipal court "had full and competent power to issue writs of habeas corpus in all cases whatever" (Ford, 325). [5]
Conclusion
The Saints' use of the Nauvoo charter in the 1840s was within the mainstream of legal theory of the time. Critics rely on legal presentism, in which they hope that readers will judge the Saints' actions by modern standards of secular jurisdiction and constitutional jurisprudence. But, things were different in the 1840s:
- Although it seems obvious today that federal authority would override a municipal court, it was not so clear at the time. In the pre-Civil War era, such questions of state powers vis-a-vis the federal government were still unresolved. "Indeed, courts that had ruled on the matter prior to 1844 were practically unanimous in the opinion that state courts had the power to issue the writ of habeas corpus for persons held by federal officers," observes Oaks (1965b, 878-79; also 1965a, 275 nn. 166-67). As late as 1858, a leading treatise on habeas corpus law had declared that it was "settled that state courts may grant the writ in all cases of illegal confinement under the authority of the United States" (Oaks 1965b, 879). It was not until 1859 that the Supreme Court finally resolved the question and established the principle that state courts had no power to release persons from federal custody (Ableman v. Booth, US 62:506). Nevertheless, critics of the Nauvoo court's use of habeas corpus could argue that the Illinois Habeas Corpus Act of 1827 prohibited the court from exercising its powers to release federal prisoners. Section 8 of that act declared: "No person shall be discharged under the provisions of this act who is in custody under... [an] order, execution, or process issuing out of" a federal court (Oaks 1965b, 879). However, since the Nauvoo Municipal Court derived its habeas corpus powers from the Nauvoo Charter and not from the Habeas Corpus Act, the Nauvoo court may not have been subject to that provision, which, arguably, applied only to the state supreme court and circuit courts. It clearly was not subject to the 1827 act if the Mormons' interpretation of their charter was correct—that Nauvoo was subject only to the constitution of Illinois and not to its laws. The whole habeas corpus question was mooted in January 1845 when the Nauvoo Charter was repealed (CHC 2:468). [6]
Endnotes
- [note] Joseph Smith, History of The Church of Jesus Christ of Latter-day Saints, 7 volumes, edited by Brigham H. Roberts, (Salt Lake City: Deseret Book, 1957), 5:470. Volume 5 link
- [note] Joseph Smith, History of The Church of Jesus Christ of Latter-day Saints, 7 volumes, edited by Brigham H. Roberts, (Salt Lake City: Deseret Book, 1957), 5:306. Volume 5 link
- [note] Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts : a Legal History of the Church of Jesus Christ of Latter-day Saints, 1830–1900 (Urbana and Chicago: University of Illinois Press, 1988), 88–92. ISBN 0252069803. (italics added)
- [note] Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts : a Legal History of the Church of Jesus Christ of Latter-day Saints, 1830–1900 (Urbana and Chicago: University of Illinois Press, 1988), 92. ISBN 0252069803.
- [note] Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts : a Legal History of the Church of Jesus Christ of Latter-day Saints, 1830–1900 (Urbana and Chicago: University of Illinois Press, 1988), 92–96. ISBN 0252069803. (italics added)
- [note] Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts : a Legal History of the Church of Jesus Christ of Latter-day Saints, 1830–1900 (Urbana and Chicago: University of Illinois Press, 1988), 105. ISBN 0252069803.
Further reading
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Joseph I. Bentley, "Legal Trials of the Prophet: Joseph Smith's Life in Court"
Joseph I. Bentley, Proceedings of the 2006 FAIR Conference, (August 2006)From my years of research and work on the Joseph Smith Papers Project, I have gained a deeper appreciation of Joseph’s achievements, despite intense and unrelenting adversity. Among his other tribulations was the fact that his ministry was shadowed by many persistent legal prosecutions. Anyone who has been through even one lawsuit knows how all-consuming it can be. It can demand your time, assets, body and mind.
So far we’ve found over two hundred total suits involving Joseph Smith–whether as a defendant, plaintiff, witness or judge. (Yes, as Mayor of Nauvoo, he was also a Justice of the Peace and Chief Magistrate of the Nauvoo Municipal Court.) That makes an average of about fourteen cases per year. As best we can tell, he endured an average of one lawsuit per month during most of his ministry!
Brigham Young said that he had to defend himself in forty-eight criminal cases, including many personally involving Brigham–but that Joseph was never convicted in any of them. We believe that this count of criminal cases against him is quite accurate. We’ll focus mainly on some criminal charges that took his liberty, his assets and ultimately his life. Knowing that not once was he found legally guilty of any charges against him has strengthened my own faith and regard for Joseph Smith–the man and the Prophet. This is a unique way to tell the history of the Church through lawsuits and court records.
From the time of his First Vision, Joseph said he got used to “swimming in deep water.” This was also true of his experience with the law. The Lord told him at the start of his ministry: “Be patient in thine afflictions for thou shalt have many. But endure them, for lo I am with thee, even unto the end of thy days.”1 Also: “Be firm in keeping the commandments … and if you do this, behold I grant unto you eternal life, even if you should be slain.“2 Finally: “And even if they do unto you as they have done unto me, blessed are ye, for ye shall dwell with me in glory.”3 These verses connected him to the Lord himself. But how is that for a mission call?
The legal charges and trials of Joseph began almost before his ministry began, and they continued for many years after it ended.
Click here to view the complete article
How many times was Joseph Smith involved with legal issues?
"Joseph Smith was persecuted in courts of law as much as anyone I know. But he was never found guilty of any crime, and his name cannot be tarnished in that way"
It seems that Joseph Smith was constantly involved with legal issues during his life. How many times was Joseph involved in such matters and what were their nature?
Concluded one author:
Joseph Smith was persecuted in courts of law as much as anyone I know. But he was never found guilty of any crime, and his name cannot be tarnished in that way.[1]
Entire books have been written on the legal history of the Church in its early days.
Introduction
Wrote a leading scholar of Joseph's legal history:
Joseph Smith believed that his enemies perverted legal processes, using them as tools of religious persecution against him, as they had been used against many of Christ's apostles and other past martyrs. Although he often gained quick acquittals, numerous "vexatious and wicked" lawsuits consumed his time and assets, leading to several incarcerations and ultimately to his martyrdom. Beginning soon after his ministry began and continuing throughout his life, Joseph Smith was subjected to approximately thirty criminal actions and at least that many civil suits related to debt collection or failed financial ventures.[2]
Ohio
After the Church moved to Kirtland, Ohio, in 1831, several religious-based charges were prosecuted against Smith and other LDS leaders, but were dismissed on the grounds listed following each charge: assault and battery (self-defense), performing marriages without a valid license (one was procured), attempted murder or conspiracy (lack of evidence), and involuntary servitude without compensation during the Zion's Camp military crusade to Missouri (won on appeal). In turn, Church leaders successfully instituted charges and recovered damages for assaults occurring while they were acting in a religious capacity. However, the financial Panic of 1837 swamped the Prophet and others with civil debt-collection litigation. Worse still were suits for violating Ohio banking laws when the Kirtland Safety Society Anti-Banking Company (see Kirtland Economy) failed soon after it was organized in 1836 without a state charter. Charges of fraud and self-enrichment were raised but not proven; a jury conviction was appealed, but Joseph Smith left Ohio for Missouri before it was heard.[2]
Missouri
In Missouri, most actions against the Latter-day Saints were extralegal, brought by non-Mormon vigilantes prejudiced against the Saints' opposition to slavery, their collective influx, and Smith's religious teachings concerning modern revelation and the territorial establishment of Zion in Jackson County. Civil magistrates routinely refused to issue peace warrants for Mormons or to redress their personal injuries or property damage. For example, despite being beaten and tarred and feathered and having the printing office destroyed, the LDS printer was awarded less than his legal fees and the Presiding Bishop received "one penny and a peppercorn." All three branches of state government seemed paralyzed or supportive of mob action, as the Saints were repeatedly dispossessed and expelled from county to county.[2]
Illinois
In 1838-1839 the Saints settled in Nauvoo, Illinois, after their wrongful expulsion from Missouri. To avoid the "legal" persecutions suffered in earlier states, they obtained a liberal Nauvoo city charter for Nauvoo, which granted broad habeas corpus powers to local courts. These helped to free Joseph Smith and other Latter-day Saints when they were sought on writs by arresting officers from outside of Nauvoo. In 1841 state judge Stephen A. Douglas set aside a Missouri writ to extradite Joseph for charges still pending there, and in 1843 a federal judge did the same for a similar requisition after the alleged shooting of then ex-governor Boggs. However, the increasing use of the writ of habeas corpus by Nauvoo magistrates, preempting even state and federal authority, escalated distrust among non-Mormons who felt that Joseph Smith considered himself above the law.[2]
Does Doctrine and Covenants 98:4-11 instruct Latter-day Saints to disobey secular law?
The revelation is telling the Saints to support honest and wise men as leaders, not to disobey the law
The quote is from D. Michael Quinn, and is his interpretation. The revelation is not telling the Saints to "disobey secular law and civil leaders"—it is telling them to "befriend" the law of the land, and seek to support "honest men and wise men" as leaders.
4 And now, verily I say unto you concerning the laws of the land, it is my will that my people should observe to do all things whatsoever I command them.
5 And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me.
6 Therefore, I, the Lord, justify you, and your brethren of my church, in befriending that law which is the constitutional law of the land;
7 And as pertaining to law of man, whatsoever is more or less than this, cometh of evil.
8 I, the Lord God, make you free, therefore ye are free indeed; and the law also maketh you free.
9 Nevertheless, when the wicked rule the people mourn.
10 Wherefore, honest men and wise men should be sought for diligently, and good men and wise men ye should observe to uphold; otherwise whatsoever is less than these cometh of evil.
11 And I give unto you a commandment, that ye shall forsake all evil and cleave unto all good, that ye shall live by every word which proceedeth forth out of the mouth of God. (D&C 98꞉4-11)
Joseph Smith's 1826 trial
Summary: Tried and acquitted on fanciful charge of being a “disorderly person,” South Bainbridge, Chenango County, New York. New York law defined a disorderly person as, among other things, a vagrant or a seeker of “lost goods.” The Prophet had been accused of both: the first charge was false and was made simply to cause trouble; Joseph’s use of a seer stone to see things that others could not see with the naked eye brought the second charge. Those who brought the charges were apparently concerned that Joseph might bilk his employer, Josiah Stowell, out of some money. Mr. Stowell’s testimony clearly said this was not so and that he trusted Joseph Smith.Claimed mismanagement of the Lawrence estate
Summary: Joseph Smith was appointed the guardian of two daughters, Maria and Sarah Lawrence, and their inheritance. He later married them in plural marriage. The evidence shows that Joseph Smith faithfully discharged his legal duties, despite the claims made by some nineteeth-century and modern critics.
Notes
- ↑ Joseph I. Bentley, "Legal Trials of the Prophet: Joseph Smith's Life in Court," (2006 FAIR Conference presentation). (Key source)
- ↑ 2.0 2.1 2.2 2.3 Joseph I. Bentley, "Smith, Joseph: Legal Trials of Joseph Smith," in Encyclopedia of Mormonism, 4 vols., edited by Daniel H. Ludlow, (New York, Macmillan Publishing, 1992), 3:1346–1347.