Nauvoo city charter

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Nauvoo's city charter

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• Question: What was unique about the city of Nauvoo's charter and why did it anger some non-Mormons?
• Question: What is a writ of Habeas corpus?
• Question: Was the Mormons' use of the Nauvoo city charter to invalidate writs from other jurisdictions improper?

Question: What was unique about the city of Nauvoo's charter and why did it anger some non-Mormons?

The Nauvoo Charter granted great power to the city, but it was not unique in this respect: The other charters in Illinois were similar

The Nauvoo Charter granted great power to the city, but it was not unique in this respect—the other charters in Illinois were similar. Nauvoo's court system was more restrictive than other cities', since it was under the jurisdiction of the country court, while other cities' were not.

The powers granted Nauvoo were not seized by the Saints; they were granted lawfully, and could have been removed lawfully by the legislature. Unfortunately, efforts by anti-Mormons and apostates to take the law into their own hands led to the murder of Joseph and Hyrum, and the eventual departure of the Saints from Illinois, and the United States.

To understand the Nauvoo charter, we must first review the history which preceded it. We will start with Joseph Smith's incarceration in Liberty Jail.

Liberty Jail

9 April 1839

Grand jury indicts Joseph and Co. for "murder, treason, burglary, arson, larceny, theft, and stealing." During their transport to another county from Liberty Jail, the judge, sheriff, and guards conspire to allow them to escape, probably because the state did not feel they could get a conviction.

20 April 1839

completion of evacuation of Saints from Missouri to Illinois.

22 April 1839

Joseph and companions rejoin saints at Quincy, Illinois

Nauvoo

1 May 1839

Joseph Smith purchases first land at Commerce (later Nauvoo), Illinois.

October 1839

a high council and stake presidency called for Nauvoo

Attempts to Receive Redress for Missouri Persecutions

28 November 1839

Elias Higbee and Joseph Smith arrive in Washington, D.C. to plead for redress because of the Missouri persecutions.

29 November 1839

Joseph and Elias meet with President Martin Van Buren.

Early Feb 1840

Joseph and Elias meet with President Van Buren again, and are told “Your cause is just, but I can do nothing for you.”

4 March 1840

Joseph arrives back in Nauvoo from Washington, D.C.

The efforts to obtain redress in Washington came to naught. It seems very clear to a modern reader that the US federal government should have been able to intervene to rectify the injustices done the Saints in Missouri. However, this matter was not entirely clear at the time, and many political leaders (especially those from the South) were of the opinion that such matters were to be left to state authorities.

Joseph Smith clearly favored an expansion of the U.S. Constitution’s powers to allow protection of persecuted minorities:

I am the greatest advocate of the Constitution of the United States there is on the earth. . . The only fault I find with the Constitution is, it is not broad enough to cover the whole ground.

Although it provides that all men shall enjoy religious freedom, yet it does not provide the manner by which that freedom can be preserved, nor for the punishment of Government officers who refuse to protect the people in their religious rights, or punish those mobs, states, or communities who interfere with the rights of the people on account of their religion. Its sentiments are good, but it provides no means of enforcing them.

Indeed, the whole debate about what the federal government could and couldn’t force the states to do would eventually be settled only by the Civil War. The Mormons were too early and, frankly, not popular enough to push the matter to that point. Joseph’s view won out, though—the 14th Amendment to the Constitution (passed after the Civil War) gave all naturalized or natural-born Americans “citizenship” status in both their state and the United States, and provided that

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Nauvoo and writing the Charter

14 September 1840

John C. Bennett, quartermaster of Illinois, arrives in Nauvoo, is baptized, and begins helping to draft a city charter.

16 December 1840

City of Nauvoo charter, charter for Nauvoo legion, and charter for University of Nauvoo issued by the Legislative Assembly of Illinois with little debate.

The Democrats who welcomed the Mormon settlers initially probably hoped to use their block-voting tendencies to control the balance of power in the state. (Indeed, one Assemblyman sarcastically noted that the charter should be renamed “A Bill for the Encouragement of the Importation of Mormons”!) Given the potential political power of the large number of immigrants, the state politicians were extra helpful in the matter of the charter, as BH Roberts noted:

This effort to win the Saints to one political party or the other continued to be a factor in their affairs so long as they remained at Nauvoo. It was owing to this rivalry for their support that doubtless made it possible for the Saints to obtain larger grants of power for their city government, and greater political privileges and influence in the State than otherwise could have been obtained by them. It also was this rivalry for their favor... that made them alternately fulsomely flattered and heartily disliked; fawningly courted, and viciously betrayed.

Powers of the Charter

The Nauvoo Charter granted great latitude to the city. The executive head was the mayor, and he was assisted by four aldermen and nine city councilors. The mayor and aldermen were also judges in the city court, so the charter did not have the strict “separation of powers” that we have come to think of as proper. However, this was not unusual for the time. There were five other city charters granted by the state of Illinois before Nauvoo. A comparison is helpful:

Nauvoo Charter Characteristic	Compared with other existing charters in Illinois
Councilors and alderman	Other cities generally have only one or the other
No waiting period for participation in city government (likely because of the large numbers of immigrants from Canada and the British isles)	Other cities required that those in city government be American citizens with a residency requirement.
Can pass any law “not repugnant” to the U.S. or Illinois state Constitution	Galena, Quincy, and Springfield had similar provisions
Legislative powers to the council	“Nearly identical” to Springfield and Quincy
Presence of Municipal court	Alton and Chicago also had courts
City courts can issue writs of habeas corpus	Alton charter also grants this right to the city
Mayor is chief justice of city court; alderman are associate justices	Not present in other charters
Court cases appealed to Hancock County courts (this is more restrictive than the other cities with courts)	More broad powers given to other cities: Chicago and Alton were equal, rather than subservient, to the county courts, and appeals went directly to the Illinois Supreme Court

It should be noted that Nauvoo's charter was similar to other charters granted, and it was granted by the government of the state of Illinois—the Mormons did not impose it by fiat.

After the charter

1 February 1841

John C. Bennett elected mayor of Nauvoo. Joseph Smith, Sidney Rigdon, Hyrum Smith, and Williams Marks were elected as aldermen and councilors.

3 February 1841

the “Nauvoo Legion” formed—this was a militia controlled by the mayor, while most militia were typically controlled only at the county level. While still subject to the governor, the Nauvoo Legion’s internal organization and policies were under the control of the city of Nauvoo. Joseph was approved by the state of Illinois as “Lieutenant General,” which was a fairly high rank (no one but George Washington held a rank that high until 1847). The state officials later realized that only a jury of his peers (i.e., those with the same or equal rank) could convene a court-martial or otherwise remove Joseph, so they had effectively handed him life-time control over the city militia!

Again, one should note that Joseph did not arrogate the rank to himself; it was confirmed upon him by the state legislature.

Apostasy of John C. Bennett

May 1842

John C. Bennett is tried before a Church court. He confessed to “wicked and licentious conduct toward certain females in Nauvoo,” and of past acts of exploiting of women he had attended as a doctor. He may also have performed abortions. He had also frequented, and perhaps operated, a brothel. (Bennett was not alone in this; with his encouragement Chauncy and Francis Higbee—who would write attacks on Joseph Smith in the Nauvoo Expositor—also participated in immoral acts and were disciplined for it.)

Orson F. Whitney said this about Bennett:

In May, 1842, the treachery and rascality of a man whom the Mormon leader had befriended and loaded with honors, became known to his benefactor. That man was Dr. John C. Bennett, Mayor of Nauvoo, Chancellor of its University, and Major-General of its legion. He had become associated with the Saints soon after their exodus from Missouri. Though a great egotist, he was a man of education, address and ability. That he had little or no principle was not immediately apparent. Considerable of a diplomat and possessing some influence in political circles, he rendered valuable aid in securing the passage by the Illinois Legislature of the act incorporating the city of Nauvoo. Hence the honors bestowed upon him by the Mormon people. Prior to that, and subsequently, he was Quartermaster-General of Illinois. Bennett professed great sympathy for the Saints. He joined the Church and apparently was a sincere convert to the faith.

Governor Thomas Ford, in his history of Illinois, styles Bennett "probably the greatest scamp in the western country." But this was not until long after the Mormons, thrice victimized, had become aware of his villainy.

Assassination Attempt on Lilburn Boggs

6 May 1842

an unknown assailant shoots former Missouri governor Boggs through his window, severely wounding him. Later, John C. Bennett encourages Boggs to press charges against the Mormons for their alleged role in the attack.

8 August 1842

a warrant is issued for Joseph Smith’s extradition to Missouri to face charges in the attempted murder of Boggs; the claim is that Joseph Smith was an “accessory before the fact,” and encouraged Orin Porter Rockwell in the deed. Joseph easily proved he had been in Illinois on the day of the shooting (hundreds of miles from Missouri) and obtains a writ of habeas corpus.

1 September 1842

D&C 127 in letter from Joseph, who was in hiding to prevent further writs from being served on him.

6 September 1842

D&C 128 in letter from Joseph, still in hiding.

December 1842

the state Supreme Court of Illinois finds that the writ voiding the governor’s warrant was illegal. However, Joseph went before a federal judge to again challenge the warrant, and this court found that the warrant “lacked foundation” since it went beyond the statements which Boggs had made in his affidavit. The state Legislative Assembly considers repeal of the Nauvoo charter, but does nothing.

February 1843

Joseph Smith announces he will run for President of the United States.

June 1843

Missouri again attempted to extradite Joseph for trial. Joseph proceeded to Nauvoo, was welcomed by cheering crowds, and was again granted a writ of habeas corpus by the Nauvoo municipal court, voiding the warrant. The city council then made it illegal to arrest Joseph within Nauvoo, and gave the mayor (Joseph Smith, since the excommunication of Bennett) power to approve any outside warrants. This only increased the non-Mormons’ sense that Joseph was combining religious and civil power in an effort to put himself “beyond the law.”

For subsequent events, please see the entry on the: Nauvoo Expositor

Question: What is a writ of Habeas corpus?

This writ is a judicial order “to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody

Habeas corpus:

This writ is a judicial order “to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.”

Thus, one obtains such a writ so that a local judge can rule on whether or not an arrest warrant is legal or appropriate. The purpose of habeas corpus is to prevent prisoners from being transported long distances on insufficient charges, or held for long periods without trial.

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

The Saints' use of the Nauvoo charter in the 1840s was within the mainstream of legal theory of the time

Critics charge that the Mormons' 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."

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).

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.

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.

… 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.

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)

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).

Related articles:	John C. Bennett and plural marriage at Nauvoo Summary: Mountebank, deceiver, and charmer, John C. Bennett's arrival at Nauvoo and his interactions with the Saints and Joseph would have a lasting impact that led indirectly to Joseph's death.
	Joseph Smith and the Nauvoo Expositor Summary: The frustrations of non-Mormons with the Nauvoo city charter and other issues surrounding the Saints (including plural marriage rumors) ultimately led to the publication of the Nauvoo Expositor. The Nauvoo city council's decision to destroy the paper was legal, but lit the fuse that led to Joseph and Hyrum's murder.

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Source(s) of the criticism

Critical sources

George D. Smith, Nauvoo Polygamy: "...but we called it celestial marriage" (Salt Lake City: Signature Books, 2008), 2, 139, 160-163. ( Index of claims , (Detailed book review))

Notes