The Rise and Fall of Nauvoo

by B. H. Roberts

At the time of this action before the municipal court of Nauvoo, it was a question in Illinois whether said court had the authority to hear and determine writs of habeas corpus arising from arrests made by virtue of warrants issued by the courts of the State or of the governor, as in the foregoing case; or whether the clause in the city charter granting the right of issuing such writs was not confined to cases arising from arrests made on account of the violation of some city ordinance. The clause in the charter giving to the municipal court the power to issue writs of habeas corpus was as follows:

The municipal court shall have power to grant writs of habeas corpus in all cases arising under the ordinances of the city council.

And in addition there was the general welfare provision, which provided that the

City council shall have power and authority to make, ordain, establish and execute such ordinances not repugnant to the Constitution of the United States, or of this State, as they may deem necessary for the peace, benefit and safety of the inhabitants of said city.

It was maintained on the part of those who believed that the municipal court had the right to issue writs of habeas corpus against process issued from the State courts that all the power there was in Illinois she gave to Nauvoo, and that the municipal court had all the power within the limits of the city that the State courts had, and that power was given by the same authority—the legislature. A number of lawyers of more or less prominence in the State professed to hold the same views; but little reliance can be put in the support they bring to the case, since they were seeking political preferment and would, and did, in their interpretations of the powers granted by the charter, favor that side of the controversy most likely to please the citizens of Nauvoo.

Governor Ford, too, at the time, gave a tacit approval of the course taken by the municipal court in issuing the writ of habeas corpus, though he afterwards became very pronounced in his opposition to the exercise of such powers. It occurred in this way: As soon as Joseph was liberated, Sheriff Reynolds applied to Governor Ford for a posse to retake him, representing that the Prophet had been unlawfully taken out of his hands by the municipal court of Nauvoo. The governor refused to grant the petition. Subsequently the governor of Missouri asked Governor Ford to call out the militia to retake Joseph, but this he also refused to do, and gave as a reason that "no process, officer, or authority of the State had been resisted or interfered with," and recited how the prisoner had been released on habeas corpus by the municipal court of Nauvoo. The governor acted in this instance with perfect knowledge of what had taken place, for the petition and statement of Reynolds were in his possession as were also complete copies of all the documents, which contained the proceedings before the municipal court of Nauvoo; and in addition to these sources of information, the governor had dispatched a trusted, secret agent, a Mr. Brayman, to Nauvoo who investigated the case and reported the result to him.

On the other hand it was contended that the grant in the charter was intended by the legislature only to give the power to the municipal court to issue writs of habeas corpus in cases of arrest for violation of city ordinances, and that giving power to the municipal court to test the warrants or processes issued from the State courts, was never contemplated by the legislature, and that the passage of any ordinance by the city council that would bring about or authorize any such unusual proceeding was an unwarranted assumption of power, utterly wrong in principle and consequently subversive of good government.

But whatever opinion may be entertained on the point under consideration, there can be no question but what upon the broad principles of justice the Prophet Joseph ought to have been set free. The State of Missouri had no just claims upon him. He had been arrested and several times examined on these old charges now revived by the personal malice of John C. Bennett, and after being held a prisoner awaiting indictment and trial for five months, so conscious were the officers of the State that they had no case against him that they themselves connived at his escape. After such proceedings to demand that he be dragged again into Missouri among his old enemies was an outrage against every principle of justice.

CHAPTER XXXIII.

POLITICAL PERPLEXITIES—JOSEPH SMITH A CANDIDATE FOR PRESIDENT OF THE UNITED STATES.