Question: Was the Mormons' use of the Nauvoo city charter to invalidate writs from other jurisdictions improper?

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Questions

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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."

To see citations to the critical sources for these claims, [[../CriticalSources|click here]]

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Answer

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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). ^[1]

Detailed Analysis

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.^[2]

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.^[3]

… 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.^[4]

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)^[5]

Habeas corpus

Issues with habeas 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). ^[6]

== Notes ==

1. [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.
2. [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
3. [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
4. [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)
5. [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.
6. [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)