A fundamental aspect of the good news of the gospel is the message of liberty. As President Joseph F. Smith said, “The Kingdom of God is a Kingdom of freedom; the gospel of the Son of God is the gospel of liberty.” Men of God, both ancient and modern, have spoken on this issue repeatedly. This book analyzes what liberty is and how it applies to government.
In the wake of a massive scandal rocking the young LDS Church and the city of Nauvoo its members largely inhabited, John C. Bennett resigned his position as Mayor (and was excommunicated from the Church). At a city council meeting two days later, the prophet Joseph Smith was overwhelmingly elected by the council to replace Bennett.
Just three days into his tenure as Mayor, Joseph read an article in the Quincy Whig announcing an assassination attempt on the life of former Missouri governor Lilburn Boggs. Based on mere rumor alone, the paper speculated that the Mormons, and specifically Joseph, may have been instrumental in the shooting. Joseph vehemently denied involvement, yet realized that his enemies would take advantage of such a situation to try and thwart God’s work.
Just over a week later, on July 5, 1842, in anticipation of such enemies seeking to arrest and extradite Joseph to another city or state (where those unfriendly to the Mormons would eagerly convict him), the Nauvoo city council passed an ordinance to protect him. Titled “An Ordinance In Relation to Writs of Habeas Corpus,” the council’s newly-adopted ordinance stated that “no citizen of this city shall be taken out of the city by writs without the privilege of investigation before the municipal court.” In other words, the officers of Nauvoo were pre-emptively nullifying any attempt to impose “justice” on Joseph or others elsewhere without first being reviewed by them, giving all their citizens “the right of trial in this city.” Mayor Joseph Smith quickly signed the ordinance which says the following in full:
Be it, and it is hereby ordained by the city council of the city of Nauvoo, that no citizen of this city shall be taken out of the city by any writs without the privilege of investigation before the municipal court, and the benefit of a writ of habeas corpus, as granted in the 17th section of the Charter of this city. Be it understood that this ordinance is enacted for the protection of the citizens of this city, that they may in all cases have the right of trial in this city, and not be subjected to illegal process by their enemies.
A “writ” is merely an official mandate by a legal authority, and a “writ of habeas corpus” is one which demands that a prisoner be released from an unlawful detention when insufficient cause of evidence exists to hold him. Habeas corpus allows a prisoner to have his case reviewed by a judge to determine if the executive authority is holding him with just cause. With their ordinance, the Nauvoo city council was simply mandating that any orders from other jurisdictions relating to anybody within Nauvoo must first be reviewed by its own court.
The foresight of this action was impressive, as the assumed power to review all such writs was used many times over the following two years, as Joseph’s enemies tried to arrest and extradite him on several occasions. One such enemy was ex-governor Boggs who had recovered from gunshots to the head and neck. Claiming in an affidavit that Orrin Porter Rockwell was responsible for the assassination attempt and that Joseph was an “accessory before the fact,” Boggs urged Missouri’s governor to demand that Thomas Carlin, the governor of Illinois, deliver up both men for extradition. Carlin agreed, and on August 8, 1842, a deputy sheriff from a neighboring county entered Nauvoo to arrest Rockwell and Smith.
Following the instructions and authority of the council’s ordinance previously mentioned, the Nauvoo municipal court issued a writ of habeas corpus demanding that the deputy sheriff bring his prisoners, who had not resisted arrest, before that tribunal. He refused to comply with the court’s order, however, arguing that they had no jurisdiction over him. He opted instead to leave the prisoners with a Nauvoo marshal while returning to Adams County for orders from the governor regarding what to do next. Both men were allowed to go free, and Joseph spent the next three months evading law enforcement officers.
Less than three weeks after the arrest of her husband, and while he was hiding from the Governor’s agents, Emma Smith wrote to Governor Carlin to defend her husband and ask that his rights be protected and due process be served. She further argued that the Nauvoo court’s writ of habeas corpus should be heeded, thus allowing a review of the allegations and evidence against Joseph by a friendly judge in the city over which Joseph presided both religiously and governmentally. The relevant portion of Carlin’s reply, written on September 7, 1842, reads:
I doubt not your candor when you say you do not desire me “to swerve from my duty as executive in the least,” and all you ask is to he allowed the privileges and advantages guaranteed to you by the Constitution and laws. You then refer me to the 11th Section of the Charter of the city of Nauvoo, and claim for Mr. Smith the right to be heard by the Municipal Court of said city, under a writ of habeas corpus emanating from said court, when he was held in custody under an executive warrant.
The Charter of the city of Nauvoo is not before me at this time; but I have examined both the Charters and city ordinances upon the subject and must express my surprise at the extraordinary assumption of power by the board of aldermen as contained in said ordinance! From my recollection of the Charter it authorizes the Municipal Court to issue writs of habeas corpus in all cases of imprisonment or custody arising from the authority of the ordinances of said city, but that the power was granted, or intended to be granted, to release persons held in custody under the authority of writs issued by the courts or the executive of the state, is most absurd and ridiculous; and to attempt to exercise it is a gross usurpation of power that cannot be tolerated.
I have always expected and desired that Mr. Smith should avail himself of the benefits of the laws of this state, and, of course, that he would be entitled to a writ of habeas corpus issued by the Circuit Court, and entitled to a hearing before said court; but to claim the right of a hearing before the Municipal Court of the city of Nauvoo is a burlesque upon the city Charter itself.
Clearly, the officers of government in other locales objected to Nauvoo’s claim of authority over arrests and extraditions ordered against its citizens. Carlin’s interpretation of the City Charter is not unique—many have likewise concluded that Nauvoo had no such power. Yet the City Council was indeed granted authority, under the charter, to pass any laws not in conflict with the constitutions of the United States or Illinois, effectively exempting the city officers from adhering to Illinois state (statutory) law when drafting city ordinances. Nauvoo is thus properly seen as a sort of state within a state, enjoying codified authority which included the municipal court’s power to issue writs of habeas corpus. It’s little wonder that Joseph called Nauvoo’s charter “one of the most liberal charters, with the most plenary powers ever conferred by a legislative assembly on free citizens”
With all the legal troubles he faced because of his enemies—including 48 criminal cases in which Joseph was the defendant (he was convicted in none of them)—Joseph availed himself of the writ of habeas corpus on numerous occasions.
One example occurred on June 23, 1843, when the sheriff of Jackson County, Missouri, and the constable of Carthage, Illinois, entered Nauvoo pretending to be Mormon elders wanting to visit the prophet. Finding their target, against whom had been issued a writ for “treason against Missouri,” both men pressed their pistols into Joseph’s chest to apprehend him—without having shown Joseph the writ ordering his capture or serving any process. Joseph’s journal records what happened next:
They then hurried me off, put me in a wagon without serving any process, and were for hurrying me off without letting me see or bid farewell to my family or friends or oven allowing me time to get my hat or clothes, or even suffer my wife or children to bring them to me. I then said, “Gentlemen, if you have any legal process, I wish to obtain a writ of habeas corpus,” and was answered,– “G— d— you, you shan’t have one.” They still continued their punching me on both sides with their pistols.
This abuse turned his skin “black for about eighteen inches in circumference on each side,” Joseph later recorded. As he was being carried away, Joseph saw a man passing by and cried out to him “These men are kidnapping me, and I wish a writ of habeas corpus to deliver myself out of their hands.” His description of their lack of legal process as “kidnapping,” despite being officers of government, shows how Joseph regarded their supposed authority. His request for habeas corpus having been denied, the prophet pressed for legal representation. The reply was like before: “G— d— you, you shan’t have counsel: one word more, G— d— you, and I’ll shoot you.”
Word of this abuse got out quickly, and the local townspeople where the officers were staying with Joseph for the night demanded better treatment and legal process. Eventually Joseph was able to get the writ of habeas corpus he desired (though not in Nauvoo’s court). On the way to court, news of Joseph’s arrival had spread throughout the town and a crowd had gathered to hear Joseph preach. His kidnappers ordered the crowd to disperse, prompting one elderly man to confront the Jackson County sheriff and thunder:
You damned infernal puke, we’ll learn you to come here and interrupt gentlemen. Sit down there, (pointing to a very low chair,) and sit still. Don’t open your head till General Smith gets through talking. If you never learned manners in Missouri, we’ll teach you that gentlemen are not to be imposed upon by a nigger-driver. You cannot kidnap men here, if you do in Missouri; and if you attempt it here, there’s a committee in this grove that will sit on your case; and, sir, it is the highest tribunal in the United States, as from its decision there is no appeal.
Joseph preached on the subject of marriage for an hour and a half, and simply records thereafter: “My freedom commenced from that hour.” Joseph returned to Nauvoo, escorted by the Jackson County sheriff, who had become a prisoner of the Lee County sheriff as a result of his unlawful actions. The company returned to Nauvoo with much fanfare, and a feast was arranged at Joseph’s home, at which the Jackson County sheriff was guest of honor, sitting at the head of a table with roughly 50 people attending.
Nauvoo’s court immediately assembled to review the events—Joseph notified them that “the writ of habeas corpus granted by the Master in Chancery at Dixon was made returnable to the nearest court having jurisdiction; and you are that court.” The court began to review the evidence from all parties, and as the evening wore on, the court adjourned until the following morning. Joseph preached to the public in Nauvoo that evening on the issue of habeas corpus:
It is not so much my object to tell of my afflictions, trials and troubles as to speak of the writ of habeas corpus, so that the minds of all may be corrected. It has been asserted by the great and wise men, lawyers and others, that our municipal powers and legal tribunals are not to be sanctioned by the authorities of the state; and accordingly they want to make it lawful to drag away innocent men from their families and friends, and have them put to death by ungodly men for their religion:
Relative to our city charter, courts, right of habeas corpus, etc., I wish you to know and publish that we have all power; and if any man from this time forth says anything to the contrary, cast it into his teeth.
There is a secret in this. If there is not power in our charter and courts, then there is not power in the state of Illinois, nor in the congress or constitution of the United States; for the United States gave unto Illinois her constitution or charter, and Illinois gave unto Nauvoo her charters, ceding unto us our vested rights, which she has no right or power to take from us. All the power there was in Illinois she gave to Nauvoo; and any man that says to the contrary is a fool.
In another portion of his address, the prophet stated:
The constitution of the United States declares that the privilege of the writ of habeas corpus shall not be denied…. 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.
You speak of lawyers. I am a lawyer too; but the Almighty God has taught me the principle of law; and the true meaning and intent of the writ of habeas corpus is to defend the innocent and investigate the subject. Go behind the writ and if the form of one that is issued against an innocent man is right, he should [nevertheless] not be dragged to another state, and there be put to death, or be in jeopardy of life and limb, because of prejudice, when he is innocent. The benefits of the constitution and laws are alike for all; and the great Eloheim has given me the privilege of having the benefits of the constitution and the writ of habeas corpus; and I am bold to ask for that privilege this day, and I ask in the name of Jesus Christ, and all that is sacred, that I may have your lives and all your energies to carry out the freedom which is chartered to us. Will you all help me? If so make it manifest by raising the right hand (There was a unanimous response, a perfect sea of hands being elevated). Here is truly a committee of the whole.
The following day, on July 1, the Nauvoo municipal court resumed its hearing and decided that Joseph “be discharged from the said arrest and imprisonment complained of in said petition, and that the said Smith be discharged for want of substance in the warrant upon which he was arrested, as well as upon the merits of said case, and that he go hence without delay.” As was the case with previous arrests and kidnappings, Joseph was once again a free man.
Joseph Smith rightly loved the writ of habeas corpus. He had been made to suffer time and time again due to false accusations and trumped up charges, and thus took great comfort in the opportunity to stand before a judge and defend himself from his accusers. Half a year after this event, he initiated an independent presidential campaign. Explaining his reason for doing so, Joseph noted the need to ensure that the law protect and defend the innocent, as he had to do for himself so many times before:
I would not have suffered my name to have been used by my friends on anywise as President of the United States, or candidate for that office, if I and my friends could have had the privilege of enjoying our religious and civil rights as American citizens, even those rights which the Constitution guarantees unto all her citizens alike. But this as a people we have been denied from the beginning. Persecution has rolled upon our heads from time to time, from portions of the United States, like peals of thunder, because of our religion; and no portion of the Government as yet has stepped forward for our relief. And in view of these things, I feel it to be my right and privilege to obtain what influence and power I can, lawfully, in the United States, for the protection of injured innocence.
Pondering the foregoing information, a clear contrast emerges with the first Mormon presidential candidate, Joseph Smith, and the latest one, Mitt Romney. Whereas the former was a champion of the Constitution and upheld individual liberty (in word and in deed—numerous deeds, even), the latter has made himself an enemy of both things.
The 2012 NDAA authorizes the President of the United States to indefinitely detain an American citizen without due process if suspected of being or aiding a terrorist. On the judgment and order of a single man, then, this “law” now allows for the legalized kidnapping of citizens with no opportunity for habeas corpus.
Recall that Joseph himself was accused on numerous occasions of engaging in activity which today would readily be deemed “terrorism,” including the assassination attempt on Boggs’ life. Further, the writs against him were signed by the judgment and order of a single man, such as the Governor, who in every case was later proven to have his information wrong, whether he acted in ignorance or with malicious intent. Imagine, then, what Joseph Smith’s life would be like if similar activities occurred today, under the NDAA. Without habeas corpus, Joseph Smith (or any other innocent individual) could be locked up with no recourse against his government-employed kidnappers.
What does Mitt Romney have to do with this? In a recent debate for Republican presidential candidates, Romney was asked if he would have signed the NDAA if he were President. “Yes, I would have,” he responded. One can only imagine the awkward conversation that might ensue between Romney and the founding prophet of his church once Romney dies and finds an opportunity to talk to Joseph. Extending him the benefit of doubt, one might presume that Romney’s support of such an offensive and constitutionally repugnant government edict stems not from malicious intent, but profound ignorance. Either way, the position he has readily embraced is at odds with the protections of law that Joseph Smith repeatedly enjoyed.
When those two officers kidnapped Joseph Smith, they refused to allow him a writ of habeas corpus to challenge their arrest. “G— d— you, you shan’t have one,” they told Joseph. This situation is eerily reminiscent of a statement made on the Senate floor by Senator Lindsey Graham, a sponsor and staunch supporter of the NDAA and the relevant provisions denying habeas corpus to American citizens suspected of terrorism. “It is not unfair,” said Graham, “to hold American citizens as long as it takes to find intelligence… When they say, ‘I want my lawyer,’ you tell them, ‘Shut up! you don’t get a lawyer!’”
This is the sentiment behind those who support the NDAA, a list which includes Mitt Romney. We need not speculate as to what Joseph Smith might think of the NDAA and its supporters like Romney, for he is already on record: “Deny me the writ of habeas corpus, and I will fight with gun, sword, cannon, whirlwind, and thunder…” Good luck with that, Brother Romney.