And so I think—was the law fair to Joseph? No. Oh, heavens no.

But did he teach us by how he reacted?

Coming up next, “Joseph Smith and the Law, Part 3: Extradition.”

KJZZ Television, in cooperation with the Church History Department of The Church of Jesus Christ of Latter-day Saints,

presents this weekly series, highlighting the research of scholars and historians

as they prepare for the publication of The Joseph Smith Papers. And now your host, Glenn Rawson.

August the 5, 1840. Boone County, Missouri.

Circuit judge and soon-to-be governor

Thomas Reynolds granted a motion from the prosecution to dismiss all charges against Joseph Smith and his colleagues, including treason.

Those charges had stemmed from the 1838–39 Mormon War.

Now from that point forward then, Joseph Smith is a free man and under no threat from the law.

That should have been the end of the legal maneuverings to get the Mormon Prophet. But it wasn’t.

Then, in September of the same year, 1840,

Governor Boggs issues an extradition petition to Illinois on the grounds of treason,

requesting that they be brought back to Missouri to be tried.

Whether he knew that the dismissal had occurred or not, we don't know.

But on November the 16th in the election,

Thomas Reynolds succeeds Governor Boggs as governor. He's elected governor. He takes office in January.

But Boggs is out of it.

Reynolds is in it.

And Reynolds jolly well knows— —yeah—

—that the treason has been dismissed cause he did it.

In September of 1840,

Governor Thomas Carlin of Illinois sent officers to arrest Joseph Smith in order to return him to Missouri.

They couldn't find him,

and the writ was returned to the governor unserved.

Then, in June of 1841, they tried again and this time succeeded in arresting Joseph Smith, and he was brought before Illinois judge Stephen A. Douglas.

Stephen A. Douglas, who was the judge to hear this matter,

ruled that the writ is not enforceable,

sends that word back to Governor Carlin, and Carlin

and in turn relays that information to Governor Reynolds.

It wasn't served to begin with, and on that basis, he rules it’s dead.

And Joseph Smith was once again a free man.

Now, he may have remained so had it not been for an event that occurred on May the 6th, 1842, in Independence, Missouri. An unknown assassin attempted to kill former governor

Lilburn W. Boggs.

He was at home, shot three or four times,

and everyone anticipated that he would die from his injuries. Very serious, in the head, in the neck.

And in short order, there was a suspect:

a silversmith in Independence, where Governor Boggs was living.

They found, actually, a pistol, a—they say, a “fine” pistol, outside the window where the shots were fired.

But for whatever reasoning, um, their,

their investigation drifted from the immediate circumstances of Governor Boggs’s

life in Independence and drifted back to the Mormons.

Um, really we find it precipitated by no one else but John C. Bennett. And he is now starting to spread the rumor that he believes that he has sufficient evidence to point to Porter Rockwell as the assassin—Orrin Porter Rockwell—with and operating under the direction of Joseph Smith.

There are some facts that help support this story—thin,

but they existed. The fact was that Rockwell was in Missouri in May of ’42. He had actually came in February with his wife, who was expecting, and her parents lived in Independence.

And so he had brought her to Independence to have her baby in the comforts of her home with her mother.

We also know for a fact that Joseph Smith was not in Missouri when the events happened.

We know that because, of all people, he actually had dinner with Stephen Douglas.

John C. Bennett had been a member of the Church in the beginnings in Nauvoo. He'd been influential and helpful in such things as obtaining the city's charter.

But later he was excommunicated,

and he turned into a bitter and a most vocal enemy of Joseph Smith and the Saints.

When Joseph learns of Boggs’s assassination attempt,

he initially believes, as most people do,

that Boggs will die, but he immediately notes that he had no involvement. He might have mentioned that he wasn't terribly sad, as many of the Mormons were that he was hurt

or had been killed. But he said it was not by my hand or any of my involvement. Right out of the gate, Joseph disaffirms any association with it.

But John C. Bennett persists, and letters start to be written

from him and under his direction

and as third parties—a postmaster actually starts

sending letters quoting John C. Bennett and discussions he had with him. And it gets all the way to the governor, and the governor then contacts with Boggs, and Boggs says, “Yeah, that’s who I think did it.” And Boggs signs an affidavit.

Now the affidavit is very interesting cause the affidavit only states that he believes that Joseph Smith helped orchestrate the shooting and therefore was an accessory before the fact.

You know the difference between principal and accessory: a principal is the actor who commits the crime, and accessory before the fact is someone who may have helped plan it— —the conspirator— or aided it or conspired with him, but wasn’t present for the crime.

On the basis of the Boggs affidavit,

Governor Thomas Reynolds of Missouri issued a second extradition petition.

That request was then delivered to Illinois Governor Thomas Carlin.

The governor then—Carlin then issues an arrest warrant to have Joseph arrested,

and that arrest warrant is actually served by the same sheriff who served the first arrest warrant on

the first extradition.

It was almost like, “Let’s take another swing at this guy to get him back to Missouri.”

Well, by this time, Joseph has become now mayor of Nauvoo.

He has become the judge of the mayor court.

He is becoming much more sophisticated in the operations of a city.

He understands the parameters of the charter and the the charter is—if you remember, the charter for Nauvoo only restricts the laws within Nauvoo

so that they're not repugnant to the U.S. Constitution or the Constitution of Illinois.

The governing officers of the city of Nauvoo had earlier passed legislation authorizing the city's courts to examine all arrest warrants and to issue writs of habeas corpus.

Habeas corpus is the process by which if you're arrested and taken prisoner and you believe that the process is wrong,

you can seek for an independent judge to review it,

to determine if your arrest is appropriate. Joseph is arrested. He enacts the rights as a citizen of Nauvoo being arrested in Nauvoo to have it be

handled underneath this new—what would be a series of acts, but the initial act of July of ’42.

It’s granted, the petition, for it to be looked at,

and having been looked at, it determines that it should be quashed or gotten rid of.

And he is let free. But I think Joseph realizes that not everyone's going to like that.

Governor Carlin learns of it and is very upset that he thinks that

the—that Joseph has tried to go around what he has asked to be done as governor. And I found no place in which they actually attacked the legal legitimacy of the Nauvoo habeas corpus laws.

Were they aggressive? Yes.

Were they ever found to be unconstitutional? No.

We don’t find any careful, reasoned attack on them other than we don't like the fact that you're using them at all.

With the granting of the writ of habeas corpus,

the arresting sheriff returned to the governor of Illinois for instructions—of course, without his prisoner.

When he came back to Nauvoo two days later,

Joseph Smith had gone into hiding.

I think Joseph sensed that he was still at some significant risk

of people carting him off,

regardless of what the courts in Nauvoo had done.

He was constantly seeking a way to resolve this with the governor. And we know that Emma intervened in Joseph's behalf, and he actually, he has a series of letters to the governor requesting help,

um, requesting reasons for the failure to acknowledge

the laws in Nauvoo, and all of which go somewhat unproductive.

Finally, they start realizing that Carlin's term as governor is about done,

and Governor Ford is going to come into being the new governor. And perhaps with the new governor will come a new opportunity.

And so by late fall, Joseph instructs certain key leaders—

his brother, William Clayton, John Taylor, Willard Richards— to make a trip to Springfield to determine what the lay of the land is. They arrive in Springfield with a mission to talk to people,

to explore exactly where Ford is on this whole issue.

Of course, Joseph has thrown his support to Ford,

and so has helped get him elected. So maybe it's time to cash in on some of that goodwill.

He meets—they meet with Justin Butterfield, the U.S. attorney for Illinois, meaning the top lawyer for the government. Non-Mormon, smart, charismatic, theatric.

And they explore with him exactly what has gone on and the contours of the the Nauvoo laws in conjunction with the facts of the case.

He’s of the opinion that, um,

the whole thing should be thrown out,

that Governor Ford should just merely revoke the arrest warrant

and rescind the proclamation that Governor Carlin has issued of being so mad that they haven't gotten Joseph yet.

And he has access to the governor and he says, “Let me meet with him and see if I can get you any information.”

Mr. Butterfield and Governor Ford agreed that Missouri's extradition request was unconstitutional.

The governor put that in writing for Joseph,

and it was confirmed by several other influential lawyers and judges. So with that, Joseph, after months of suffering,

came out of hiding and turned himself over to the legal process in December of 1842.

Joseph makes the determination to retain Butterfield as their counsel and to make a trip to Springfield.

This will be a significant event.

There are many people going with Joseph both to protect him and to support him. They arrive there several days later. I believe it’s on the 30th. They’re there now in town.

He meets his lawyer for the first time.

Justin Butterfield. Butterfield explains the dynamics of what's going to happen.

There's going to be a new arrest warrant issued by the governor,

so they don't have to try to worry about the status or place or use of this old arrest warrant that took place months and months earlier. That is, once that is done, he would surrender and be arrested.

That he would go in front of a judge to see if he could get bailed.

And as soon as that occurs, then they will have a hearing on the habeas corpus.

In this arena of extradition,

the roles of the federal and state courts had not yet been fully defined in this country.

Governor Ford consulted with members of the Illinois Supreme Court,

and they advised him to refer the case to federal Judge Nathaniel Pope of the U.S. District Court of Illinois.

And he is arrested. He— they move for bail.

Bail is offered at four thousand dollars.

And it is posted immediately. Matter of fact, the two sureties will be the prob—the Judge Adams, judge—Mormon judge in Springfield.

But he does get bonded. His bail is given. He’s out and they set it for the next—first of the week.

This is on a Saturday.

They say the hearing will be commenced on Monday morning.

Sunday, there's a lot of activity. There's a bunch of very prominent Mormons in town and in fact, prominent enough that the Legislature offers the House of Representatives to be used as a pulpit on Sunday to give a sermon.

And Joseph offers to have John Taylor and Orson Hyde give the sermons to a packed house.

The Mormons are in fully blossom in Springfield,

and they take advantage of that and have that opportunity.

Monday morning comes and you have to almost paint the picture.

Nathaniel Pope, 58-year-old man, distinguished—one of the most distinguished men in all of Illinois—arrives.

He doesn't arrive alone.

He arrives with an entourage of women that he brings

and included in that group of women is Butterfield's daughter,

as well as Mary Todd Lincoln,

who has just married President Lincoln a couple of months earlier. And he actually has the women sit on either side of him.

Josiah Lamborn was the prosecuting attorney for the state of Illinois.

He immediately asked for a recess to better prepare his case.

Judge Pope granted him until the following Wednesday.

By Wednesday, they reconvened.

Lamborn has a couple of clear arguments. “Number one, why are we in federal court?

I want to dismiss this, and state law should comply. We have a state statute which organizes and authorizes the compliance with extradition efforts by fellow governors.

And that should be the remedy. Why we even are here in federal court to begin with?” Pope acknowledges the argument and says, “I’ll take it under advisement,

but I'm going to hear everything first and then we'll decide in the end whether that motion to dismiss will be granted or not.”

The [INAUDIBLE] hearing continues.

Lamborn then makes a clear argument,

and his is a strict reading,

ironically using the federal law rather than the state law of habeas corpus to govern because the state law is broader.

And so he wants to argue that

the only thing you’re allowed to look at today, Judge Pope,

are, “Is the procedure proper in arresting Joseph?”

and not the merits.

And there is some compelling argument to be made of,

“Do we have a chance to have

the Missourians here to testify, to be cross-examined?

Are we really prepared to go ‘behind,’

they call it, behind the warrant, behind the request?

Is that appropriate?” And he then closes his argument.

In essence, then, the prosecution was asking the court

to determine whether Joseph Smith was properly arrested. Was procedure followed? By so doing, they were purposely avoiding the issue of whether the arrest was proper in the first place.

It was then Butterfield’s turn.

And I’m quoting now from a reporter who was there.

“Mr. Butterfield rose with dignity and amidst the most profound silence,

pausing and running his eyes admirably from the central figure of Judge Pope, along the rows of lovely ladies on each side of him, he began:

’May it please the court, I appear before you today under circumstances most novel and peculiar. I am— I am to address the pope’”— bowing to the judge—

“‘surrounded by angels’”— bowing still lower to the ladies—

“’in the presence of holy apostles, in behalf of the Prophet of the Lord.’”

A finer beginning to an argument maybe has never been given.

He then goes on to the merits.

He notes, in contrast to Lamborn,

that in fact exclusive jurisdiction rests for this case in federal court rather than state.

There is a debate in the country, which—the supremacy of the federal courts over state courts.

He then makes an argument directly to the war in itself. And he says, “Where do we have facts that he’s a fugitive?

Where do we have facts to establish that he's a fugitive,

that he fled”—which would be the derivative— “a fugitive from Missouri? He was not in Missouri.

And so we can show facts that are not inconsistent with this to fill in the picture.” And he says, “The facts are,” and he then presents to the court various affidavits,

people establishing that Joseph was not in Missouri when the shooting took place.

So how could he have fled from this state,

thereby becoming a fugitive from it?

Butterfield concludes that it would just be wholly unjust to accuse a man of a crime in Missouri when everyone knows he was in Illinois when it happened.

And in the law on that day, that was the law.

And he closed his remarks. Interesting, Willard Richards was rapidly keeping track of all the testimony best he can in a shorthand and abridged fashion that is the best record we have,

but still somewhat incomplete.

But the next day, Pope comes back and makes his ruling.

He first finds that Lamborn’s attempt to have the case dismissed for lack of jurisdiction—not well-founded.

That in fact there is a supremacy to the federal laws

and that the federal laws made it so that the court had full jurisdiction—

a ruling that would be repeatedly cited to in subsequent years,

as this opinion would be published well into the 20th century

that this case would be cited for that fact, that ruling, of the

supremacy of the federal law over a competing state law.

So not only did Pope get it right then,

it got repeatedly being affirmed as cited as as precedent for years, if decades.

Then, more importantly, on the second point as to the merits of the habeas corpus itself,

whether the arrest warrant should be quashed,

he finds that the affidavit by Boggs to be legally insufficient

and therefore was a legally insufficient basis for the governor of Missouri to issue the requisition request,

and rules in favor of the immediate release of Joseph.

Pope essentially ruled that Missouri's efforts to extradite Joseph Smith were unwarranted, and they were illegal.

Now, by that ruling, he also affirmed the Nauvoo court ruling that the extradition was improper.

Joseph Smith was once again a free man.

Interestingly, Joseph stands, there’s applause. There’s—he bows to the court.

He shakes hands with his lawyers and the trial is over.

He will then have a meeting with Butterfield.

Butterfield and Joseph will have a meeting with Judge Pope. And Judge Pope says, “I understand that your boys have kept a pretty good record of the events. Would you mind if your guys actually take their notes and draft my opinion?

That it probably will get a better, more accurate than if I did it.” And they agree.

The opinion is drafted and then approved by the judge—drafted,

I believe, by Willard Richards.

It becomes a widely read and used opinion.

Joseph is escorted back in grand fashion.

Songs are written and sung as they head back home.

Joseph’s mother greets him outside of Nauvoo.

Joseph would end up, while being vindicated, I think, disappointed that he didn't have the opportunity to have the full merits heard.

In June of 1843, Joseph Smith and his family were visiting relatives about 200 miles north of Nauvoo.

Two law officers showed up and arrested Joseph with the intention of taking him back to Missouri.

It seems that Governor Thomas Reynolds of Missouri had been incited to action by John C. Bennett and his rumors

and Lilburn W. Boggs, and he had issued a new request for Joseph’s extradition—

once again renewing the charge of treason against the state.

Now, where Governor Ford of Illinois had once been Joseph’s ally and helped him,

now he is the one who issued the warrant for Joseph’s arrest.

They arrest Joseph. They’re ready to cart him off, you know, for kidnapping. Really? And he shouts. He was visiting

Emma’s family at Dixon. And you know this story,

Joseph gets a writ of habeas corpus.

And the sheriff of that county arrest—the two arrestors, the two law people who would have taken Joseph.

So they are his prisoners and he is their prisoner,

and the whole entourage gets brought to Nauvoo,

at which point the municipal court convenes. Joseph as mayor is not sitting on the court. Joseph is the petitioner, and so the court of the other five members of that body

deliberate over the question. And this time, the charge again is treason,

but it’s a new treason indictment—

—against Joseph— —against Joseph.

And the thread that runs through all three of the extradition petitions is that the only person thought to be extradited is Joseph Smith.

They don’t go after Parley P. Pratt for murder. They don’t go after Lyman White, Hyrum Smith, Sidney Rigdon,

or any of the other defendants for treason, murder, or anything else.

Indeed, the real reason for the petitions, I'm convinced,

is that Missouri was getting a bad press, not only from within

but from out, over the wholesale exterminating,

forcing away the Mormons.

That’s the reason for trying to defend the honor of Missouri, these petitions for extradition occur. The first one nearly a year and a half after the release. This petition gets heard, and Joseph, for the first time, is now able to put on evidence that he didn’t commit treason.

And all of the bases that I pointed out in the previous segment about why it isn’t treason,

he gets a chance to prove. There was time given to

the Missouri people to bring in their testimony.

They put on some evidence, but the court, after hearing it all, dismisses the petition,

grants Joseph writ of habeas corpus, and he’s a free man.

While the Prophet Joseph Smith was repeatedly brought before the judges of his day,

he was also, in accordance with his responsibilities as the mayor of Nauvoo, a judge himself of the Municipal Court of Nauvoo.

After all that he has experienced at the hands of judges, what kind of a judge was he?

You know, one might ask why—what made Joseph a good judge?

I think there was a—maybe a couple of qualities that would stand out.

One is that he was not afraid to learn and to study,

and his life evidenced a lifelong yearning to gain more information, gain more knowledge, gain more insight. And a judge needs to have that ability.

I think also he liked people

and he wanted to be fair to people.

I think he had personally experienced what it’s like to not

be fairly treated. And I think he took extra caution and extra care to treat people fairly.

And I think he had another great ability that would add to all those in his amazing ability to forgive people

and allow things to move on.

I don't think he harbored ill feelings,

which is a great job of a judge because the last thing you want to have is an angry judge who’s just mad at the world.

Joseph learned something that many of us forget in the law,

and that is how to forgive and to move on.

Many of us in the law will become cynics

and will become embittered

to the world that we deal with because of the law. Joseph

became noble because of the law. He learned how to forgive others,

to find justice, and to look for peace—

the great qualities that all of us lawyers wish we embodied more.

When Joseph Smith was freed the third time,

there was a backlash against the Mormons throughout the state.

The tide of public opinion, guided by an unfriendly press,

turned against Joseph Smith and his people.

But in spite of all that, life went on in Nauvoo.

The Church grew and expanded beyond the United States, Canada, and the British Isles.

Next week on The Joseph Smith Papers,

the beginnings of international Mormonism. I’m Glenn Rawson.

Thanks for joining us.