"Behind the Extraditions: Joseph Smith,
the Man and the Prophet" - Elder Dallin H. Oaks

"Behind the Extraditions: Joseph Smith,
the Man and the Prophet" - Elder Dallin H. Oaks

Additional Resource

 

Behind the Extraditions: Joseph Smith, the Man and the Prophet

 

Elder Dallin H. Oaks* Of the Quorum of the Twelve Apostles

The Church of Jesus Christ of Latter-day Saints

September 23, 2013

Historic Nauvoo Visitors’ Center

Nauvoo, Illinois

Friends of history, I am pleased to be with you. I gratefully acknowledge the many dignitaries and personal friends who have journeyed to Nauvoo for this occasion. The main event is, of course, tomorrow in Springfield, organized by the Illinois Supreme Court Historic Preservation Commission and the Abraham Lincoln Presidential Library and Museum. This evening I have been invited to introduce Joseph Smith, the central figure in these legal proceedings. I will also speak of some of the historical and constitutional backgrounds of these events. But first, a personal note.

Governor Thompson probably does not remember our first meeting. The year was 1966. I was then a young professor at the University of Chicago Law School. We met in a courtroom of the Illinois Appellate Court, where, by appointment of the court, I represented a defendant convicted of burglary. He represented the state of Illinois.

My case followed several other oral arguments. As I sat through these near-hopeless criminal appeals, I wondered how this appellate panel could possibly recall my case when they met in conference. Fortunately or unfortunately, I had an unusual set of facts. In the early hours of the morning, the glass door of a bar in my client’s Chicago neighborhood had been shattered by a cinder block, and my client was later found behind the bar, very drunk, beside an almost empty bottle of gin. The cash register was untouched.

As I looked at the three judges, who seemed at least bored and perhaps inattentive, I made notes of an introduction that I hoped would fix my client’s case in their memory. I began my oral argument with these words:

“Victor Hugo immortalized the story of the pathetic Frenchman who was sent to the galleys for five years for breaking a window and stealing a loaf of bread. My client is a sort of 20th century Jean Valjean. He has been sentenced to one to five years in the penitentiary for breaking a window, entering, and drinking a quart of gin.”

Not one of the judges reacted with any comprehension or even any interest in this creative introduction. My faith in the judiciary—even my faith in my chosen profession of the law—wavered. I concluded my argument routinely and sat down. Then, something happened that restored my faith. As Mr. Thompson came to the lectern, the presiding judge, whom I had thought uncomprehending, welcomed the prosecutor with these words: “I presume you are Monsieur Javert?” (People v. Thompson, 221 N.E.2nd 778 [1966]).

This evening’s program combines two important topics: habeas corpus and Joseph Smith, the founding prophet of The Church of Jesus Christ of Latter-day Saints. I have a good background on each of these. As a young professor more than 50 years ago at the University of Chicago Law School, I published three law review articles on habeas corpus.[i] But here I will focus primarily on Joseph Smith. I am a lifelong student of his life, his work, and the times in which he lived, especially here in Illinois.

I.

As we explore Joseph Smith’s use of habeas corpus during the three attempts to extradite him to Missouri, it is interesting to note that Joseph did not testify in any of these hearings. Instead, we hear the arguments of some of the brightest legal minds of his day and the rulings of equally impressive judges. Indeed, these extradition hearings are a window, not just into the world of Joseph Smith but also into the legal world of Illinois in the 1840s.

Imagine, for example, federal judge Nathanial Pope’s courtroom on the second floor of the Tinsley Building in Springfield on January 4, 1843. Packed to overflowing, the room was so crowded that Judge Pope allowed several young women to sit on either side of him on the bench, including his daughters, attorney Justin Butterfield’s daughter, and Mary Todd Lincoln, who had married Abraham Lincoln just a few months earlier. As Butterfield rose to address the court, dressed “a la Daniel Webster, in blue dress-coat and metal buttons, with buff vest,”[ii] his opening lines were so poetic and memorable that they were reported in numerous accounts. A fellow attorney recorded that Butterfield “rose with dignity, and amidst the most profound silence. Pausing, and running his eyes admiringly from the central figure of Judge Pope, along the rows of lovely women on each side of him, Butterfield said:

“May it please the Court, I appear before you today under circumstances most novel and peculiar. I am to address the ‘Pope’ (bowing to the Judge) surrounded by angels (bowing still lower to the ladies), in the presence of the holy Apostles, in behalf of the Prophet of the Lord.”[iii]

As another example of the eloquence of this period I cite Orville Browning’s closing argument during the first extradition hearing. This was Monmouth, Illinois, in 1841. Browning addressed Judge Stephen A. Douglas, age 27, newly appointed to the Illinois Supreme Court:

“Have I not seen it? Yes, my eyes have beheld the blood-stained traces of innocent women and children, in the drear winter, who have travelled hundreds of miles barefoot, through frost and snow to seek a refuge from their savage pursuers. ‘Twas a scene of horror sufficient to enlist sympathy from an adamantine heart. And shall this unfortunate man, whom their fury has seen proper to select for sacrifice, be driven into such a savage band, and none dare to enlist in the cause of justice? If there was no other voice under heaven ever to be heard in this cause, gladly would I stand alone, and proudly spend my latest breath in defense of an oppressed American citizen.”[iv]

While neither Butterfield nor Browning was a member of The Church of Jesus Christ of Latter-day Saints, they not only represented Joseph Smith but were also considered among the finest legal minds of their day. As one colleague observed, Justin Butterfield “was one of the ablest, if not the very ablest lawyers we have ever had at the Chicago Bar. He was strong, logical, full of vigor and resources.”[v] At the time Butterfield represented Joseph Smith, he was also the U.S. Attorney for Illinois, the highest-ranking lawyer in the state. Orville Browning went on to fill Stephen A. Douglas’s U.S. Senate seat following Douglas’s death in 1861. In 1866, U.S. President Andrew Johnson appointed Browning Secretary of the Interior; thereafter he served as United States Attorney General.

II.

The presentation we will watch tomorrow in Springfield will dramatize these and other legal luminaries. We will hear their voices, observe their skill and courage, and be impressed by their intellect and contributions. So with that to look forward to, I will focus my remarks this evening on Joseph Smith’s voice—his participation and contributions in this significant period of America’s history.

With the Revolutionary War still fresh in memory, our country was discovering itself as an experiment in democracy. Indeed, the very structure of America was an experiment, not just in learning to balance three branches of the federal government, but also in trying to find the right balance between the federal and state governments. Competing voices were shaping American society in a century that included a religious awakening, the Industrial Revolution, the rapid expansion of the territory defining America’s Manifest Destiny, and the extraordinary constitutional amendments that followed the Civil War. An American identity was being formed.

Significantly, it was not until the end of the Civil War that the federal Bill of Rights would begin to be extended to the states. Therefore, during Joseph’s life, fundamental First Amendment rights like the free exercise of religion and freedom of speech and press only restrained the federal government. During Joseph Smith’s lifetime, individual states had to define and regulate such rights at the local level.

Joseph came face to face with this reality when he sought help in getting redress for the damages his people, called Mormons, suffered in being driven from Missouri under a governor’s extermination order. During this painful winter of 1838-39, Joseph was languishing in a squalid jail in Liberty, Missouri. In November, 1839, he traveled to Washington to seek help from the federal government. He received no help from Congress, but obtained at least one meeting with President Martin Van Buren. After explaining the help that he sought for the enormous losses the Latter-day Saints had suffered, Joseph learned that the country’s president saw the federal government as powerless in redressing civil rights violations occurring at the state level. President Van Buren complained, “What can I do? I can do nothing for you! If I do anything, I shall come in contact with the whole state of Missouri.”[vi] With his political career rooted in the protection of state rights, President Van Buren’s position was unfortunately predictable. To Joseph’s insistence that something must be done to redress the atrocities inflicted on his people, Van Buren gave his famous response, “Gentleman, your cause is just, but I can do nothing for you.”[vii]

It was not surprising that when Joseph Smith ran for the U.S. presidency in 1844, one of the planks in his platform was to strengthen the federal government’s ability to ensure justice and redress for all the citizens, and to ensure that the Constitution was applied equally in the states. Indeed, the very purpose of his candidacy may have been to draw attention to the wrongs of his people and other minority groups in the new democracy who had suffered from majority rule with little hope for redress. While Joseph Smith’s viewpoint was controversial during his campaign, his position ultimately became the law of the land and a critical component in America’s democracy.

For both the state and federal governments, the great test of democracy was carrying out the will of the majority while protecting the rights of minorities. As James Madison acknowledged in the Federalist Papers:

“It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. . . . In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.”[viii]

Similar concerns were expressed by other founders, from Thomas Jefferson to Alexander Hamilton and John Adams. This danger, often referred to as the “tyranny of the majority,” was even addressed by Abraham Lincoln in his first recorded speech. Speaking to a group of young men in Springfield, Illinois, in 1838, Lincoln described how this feared tyranny had encroached into Illinois:

“I hope I am over wary; but if I am not, there is even now something of ill omen amongst us. I mean the increasing disregard for law which pervades the country—the growing disposition to substitute the wild and furious passions in lieu of the sober judgment of courts, and the worse than savage mobs for the executive ministers of justice. . . . Accounts of outrages committed by mobs form the everyday news of the times. . . . Whatever then their cause may be, it is common to the whole country.”[ix]

Lincoln’s audience would probably have heard these words as referring to actions such as those of the mobs that destroyed three different printing presses of Elijah Lovejoy at Alton, Illinois, between 1835 and 1837. This was a time when mob actions were common in this part of the frontier.[x]

       Lincoln continued:

“[T]he innocent, those who have ever set their faces against violations of law in every shape, alike with the guilty fall victims to the ravages of mob law; and thus it goes up, step by step, till all the walls erected for the defense of the persons and property of individuals are trodden down and disregarded. But all this, even, is not the full extent of the evil. By such examples, by instances of the perpetrators of such acts going unpunished, the lawless in spirit are encouraged to become lawless in practice; and having been used to no restraint but dread of punishment, they thus become absolutely unrestrained. Having ever regarded government as their deadliest bane, they make a jubilee of the suspension of its operations, and pray for nothing so much as its total annihilation. While, on the other hand, good men, men who love tranquility, who desire to abide by the laws and enjoy their benefits, who would gladly spill their blood in the defense of their country, seeing their property destroyed, their families insulted, and their lives endangered, their persons injured, and seeing nothing in prospect that forebodes a change for the better, become tired of and disgusted with a government that offers them no protection.”[xi]

III.

It was in this environment in the United States—the dynamic tension between federal and state governments and attempts to execute the will of the majority while protecting minorities—that Joseph Smith lived and guided The Church of Jesus Christ of Latter-day Saints during its earliest years. This was a period in which the high promises afforded by the United States Constitution were tested by the often violent actions of frontier people.

Joseph Smith loved the Constitution and hoped that its promises could be used to protect his people. As he explained during a sermon on October 15, 1843:

“It is one of the first principles of my life, and one that I have cultivated from my childhood, having been taught it by my father, to allow every one the liberty of conscience. I am the greatest advocate of the Constitution of the United States there is on the earth. In my feelings I am always ready to die for the protection of the weak and oppressed in their just rights.”[xii]

With such admiration for this foundational document of our nation, Joseph Smith became a student of the Constitution. BYU Professor John W. Welch has gathered all of the known statements of Joseph Smith on the Constitution.[xiii] They constitute an impressive list spanning most of the prophet’s public career. His optimism for the Constitution can be seen in 1836 after the Latter-day Saints were driven from their property in Jackson County, Missouri, and then pressured from their temporary refuge in Clay County. He counseled the Saints then:

“Be wise; let prudence dictate all your counsels; preserve peace with all men, if possible; stand by the Constitution of your country; observe its principles; and above all, show yourselves men of God, worthy citizens.”[xiv]

Just weeks before his own imprisonment in Liberty Jail in Missouri, Joseph declared, “We are friendly to the Constitution and the laws of this state and of the United States, and wish to see them enforced.”[xv] Later, in Nauvoo in 1840, he taught:

“The Constitution of the United States is a glorious standard; it is founded in the wisdom of God. It is a heavenly banner; it is to all those who are privileged with the sweets of liberty, like the cooling shades and refreshing waters of a great rock in a thirsty and weary land. It is like a great tree under whose branches men from every clime can be shielded from the burning rays of the sun.”[xvi]

It is within the context of Joseph Smith’s love of the Constitution that his understanding and use of the writ of habeas corpus must be examined. In a recent article in BYU Studies Quarterly, Jeffrey Walker, who has been so helpful to me in the research and writing of this talk, summarized Joseph’s use of habeas corpus:

“During Joseph Smith’s life he invoked the habeas corpus laws on several occasions: From seeking review of his incarceration in Liberty Jail to seeking approval for the charter for the City of Nauvoo (which included the right of the municipal court to hear writs of habeas corpus) to seeking review of his arrests during the various extradition efforts to return him to Missouri, Smith developed a keen understanding of the protections that habeas corpus afforded, and he needed that understanding. Joseph Smith believed, and accurately so, that if he were to be jailed in Illinois as he had been in Missouri, he would not survive his incarceration. It was in fact his jailing in Illinois that ended in his murder.”[xvii]

His passionate belief in habeas corpus can be heard in a speech he gave to thousands assembled at the grove just below the temple here in Nauvoo. After arriving to have a petition for habeas corpus heard the following morning by the Nauvoo Municipal Court over Missouri’s third effort to have him extradited, he said:

“The Constitution of the United States declares that the privilege of the writ of Habeas Corpus shall not be denied. Deny me the right of Habeas Corpus, and I will fight with gun, sword, cannon, whirlwind, and thunder, until they are used up like the Kilkenny cats . . . the benefits of the Constitution & laws are for all alike; & the great Eloheim has given me the privilege of having the benefits of the Constitution & the writ of Habeas Corpus.”[xviii]

Joseph Smith’s intellectual understanding of the protections afforded by the writ of habeas corpus justifies admiration by any student of the law. Daniel H. Wells, then a non-Mormon justice of the peace in Hancock County and a personal friend of Joseph, said, “I have been around lawmen all of my life. Joseph Smith was the best lawyer that I have ever known in my life.”[xix] Lawyers who are skeptical of that contemporary’s superlative may at least join me in chuckling at what Joseph’s personal history quotes him about his studying law. After recording a busy morning in the office, the history continues:

“[L]aid down on the writing table with back of the head on Law Books, Saying ‘write & tell the world I acknowledge myself a very great lawyer. I am going to study law & this is the way I study.’”[xx]

IV.

Joseph Smith’s intellectual views on the Constitution are interesting, but his most lasting contribution to the world comes from the insights he received in his capacity as a prophet. In that role, he received revelations that we Latter-day Saints believe to be the word of God. Though few people know of Joseph Smith’s intellectual statements about the Constitution, millions know and read his revelatory statements about it.

In early 1843, Justin Butterfield argued before the federal court in Springfield that Joseph Smith should not be returned to Missouri. In his argument, he mentioned Joseph’s prophetic role. He said:

“I do not think the defendant ought under any circumstances to be delivered up to Missouri. It is a matter of history that he and his people have been murdered and driven from the state. He had better been sent to the gallows. He is an innocent and unoffending man. The difference is this people believe in prophecy and others do not. Old prophets prophesied in poetry and the modern in prose.”[xxi]

Revelation is the key to the power of Joseph Smith’s message. That message began with his personal testimony that as a 14-year-old boy without schooling, property, or family prominence, he saw God the Father and His Son Jesus Christ in person. Joseph and his associates testified to later personal visits from other heavenly beings. Joseph taught that he was directed by a continuing flow of revelation throughout his life. “The Church of Jesus Christ of Latter-day Saints was founded upon direct revelation,” he declared, “as the true Church of God has ever been.”[xxii] “Take away the Book of Mormon and the revelations, and where is our religion?” he asked. “We have none,” he answered.[xxiii]

Joseph Smith’s teaching about the significance of modern-day revelation is clearly the most distinctive characteristic of the Latter-day Saint faith. Joseph Smith affirmed by countless teachings and personal experiences that revelation did not cease with the early apostles, but that it continued in his day and ours. He also taught that revelation was a reality for everyone. “It is the privilege of the Children of God to come to God and get Revelation,” he said. “God is not a respecter of persons, we all have the same privilege.”[xxiv] Any sincere truth seeker can receive personal inspiration from God by the power of the Holy Ghost. “[W]hatever we may think of revelation,” Joseph taught, “without it we can neither know nor understand anything of God . . . and . . . must remain in ignorance.”[xxv] He also taught that “salvation cannot come without revelation; [it] is vain for anyone to minister without it.”[xxvi]

Revelation is the foundation of our Church doctrine and governance, and it is also fundamental to personal conversion, personal decision-making, and the ways we understand and apply the inspired texts we call scriptures. In one of the earliest revelations to Joseph Smith, God declares that He will give knowledge “in your mind and in your heart, by the Holy Ghost.”[xxvii] Everyone can enjoy revelation or inspiration to guide them in personal decisions or actions. Thus, we believe that revelation occurs when an inventor or artist or great leader receives flashes of enlightenment from a loving God for the benefit of His children. Such examples illustrate what Latter-day Saints mean by personal revelation.

Another example of revelation, which I will call prophetic revelation, occurs in the role of Joseph Smith and his successors as presidents of The Church of Jesus Christ of Latter-day Saints. Here God reveals truths or commandments to His prophet-leader for the enlightenment of His people. This is the kind of revelation described in the Old Testament teaching that “the Lord God will do nothing, but he revealeth his secret unto his servants the prophets” (Amos 3:7).

It is on this subject of revelation that Joseph Smith shared something important with George Washington. In Joseph J. Ellis’s bestseller on Washington, His Excellency, Ellis gives the following analysis of the man who was the founder of the American nation:

“He was the rarest of men: a supremely realistic visionary, a prudent prophet whose final position on slavery served as the capstone to a career devoted to getting the big things right. His genius was his judgment. . . . But where did that come from? Clearly, it did not emanate from books or formal education, places where it is customary and often correct to look for the wellspring that filled the minds of such eminent colleagues as Adams, Jefferson, and Madison with their guiding ideas. Though it might seem sacrilegious to suggest, Washington’s powers of judgment derived in part from the fact that this mind was uncluttered with sophisticated intellectual preconceptions.”[xxviii]

When I read those words, I was struck with the parallel to Joseph Smith. It is surely true that Joseph’s mind “was uncluttered with sophisticated intellectual preconceptions.” It is also true—if one judges him by the criteria of the quality of his followers or the fruits of his teachings—that he got the big things right.

Joseph Smith’s almost total lack of formal education or access to the learning of his day has been a standard basis for criticizing him. “Ignorant” is the label so familiar in the popular criticisms. Perhaps it is time for educated nonbelievers to take the unlearned Joseph Smith seriously and to ask the question Ellis asked about Washington: where did his genius come from? I see the answer to that question as revelation from God.

I would give that same answer to those who wonder how members of The Church of Jesus Christ of Latter-day Saints, both in Joseph Smith’s time as well as today, accept the direction of a prophet in their personal lives, something that is unusual in most religious traditions. Consider this analogy. As a former practicing lawyer and judge, I am familiar with the use of certified copies of official documents, like a death certificate or an honorable discharge from military service. Such copies are accepted as if they were originals, because of their official certificate. This acceptance is based on the fact that anyone who doubts the authenticity of the content can verify its accuracy by going to the original. So it is with the prophetic revelation of a prophet of God. He is the certifying authority that his teaching or direction is from God. Anyone who doubts this—and none are discouraged from personal doubts—can verify the authenticity and content of the message by checking it with the official source, by personal revelation.

V.

Joseph Smith’s personal passion for the Constitution, demonstrated during the three extradition attempts to remove him from Illinois, were preceded by a series of revelations instructing him and his people to trust in the Constitution because divine Providence directed its creation. In 1831, shortly after arriving in Missouri for the first time, Joseph Smith received revelatory counsel on what God expects of His children: “Let no man break the laws of the land, for he that keepeth the laws of God hath no need to break the laws of the land.”[xxix] Such counsel was further expanded in August 1833, shortly after the Saints in Jackson County, Missouri, had suffered at the hands of a mob that destroyed their homes and businesses, tarred and feathered some of their leaders, and demanded that they leave the county. That revelation reads:

“And that law of the land which is constitutional, supporting the principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me. Therefore, I, the Lord, justify you, and your brethren of my church, in befriending that law which is the constitutional law of the land; And as pertaining to law of man, whatsoever is more or less than this cometh of evil.”[xxx]

A final revelation to consider was received in December 1833, four months later. By this time, the Jackson County Saints had been driven out by the mob and were struggling to find temporary refuge north of the Missouri River in Clay County. Many suffered greatly as families struggled to survive on the Missouri River bottoms in winter conditions. Parley P. Pratt, an early Church apostle who experienced the persecution, wrote of the experience:

“When night again closed upon us the cottonwood bottom had much the appearance of a camp meeting. Hundreds of people were seen in every direction, some in tents and some in the open air around their fires, while the rain descended in torrents. Husbands were inquiring for their wives, wives for their husbands; parents for children, and children for parents. . . . The scene was indescribable, and, I am sure, would have melted the hearts of any people on the earth, except our blind oppressors.”[xxxi]

These Missouri Saints sought counsel from their prophet. What direction should they take? Where should they go? What response to this lawlessness would God permit? In this context, Joseph Smith received the following revelation:

“It is my will that [the Saints] should continue to importune for redress . . . according to the laws and constitution of the people, which I [God] have suffered to be maintained for the rights and protection of all flesh, according to just and holy principles; that every man may act in doctrine and principle pertaining to futurity, according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment. Therefore, it is not right that any man should be in bondage one to another. And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood.”[xxxii]

These revelations embody counsel, instruction, and directions. The principles they establish formed the basis for the philosophy that the Saints would be asked to follow and that Joseph Smith himself would practice: Use the law to fight injustice; trust in the Constitution. And so his people sought redress in the courts. They followed him.

VI.

The Joseph Smith I have met in my personal research was a man of the frontier—young, emotional, dynamic, and so loved and approachable by his people that they often called him “Brother Joseph.” His comparative youth overarched his prophetic ministry. He was 14 at the time of his First Vision, 21 when he received the famed golden plates, and just 23 when he finished translating the Book of Mormon (in less than 90 working days). Over half of the revelations in our Doctrine and Covenants were given through this prophet when he was 25 or younger. He was 26 when our Church’s First Presidency was organized, and just over 33 when he escaped from imprisonment in Missouri and resumed leadership of the Saints gathering in Nauvoo. He was only 38 when he was murdered.

During his 38 years of life, Joseph Smith had more than his share of mortal afflictions. When he was about seven, he suffered an excruciatingly painful leg surgery without anesthesia. Because of the poverty of his family, he had little formal education and as a youth was compelled to work long hours to help put food on the family table. He was attacked physically on many occasions. In the midst of trying to fulfill the staggering responsibilities of his sacred calling, he had to labor as a farmer or merchant to provide a living for his family. He did this without the remarkable spiritual gifts that sustained him in his prophetic calling. The Lord had told him that “in temporal labors thou shalt not have strength, for this is not thy calling.”[xxxiii]

In spiritual matters, Joseph Smith had no role models from whom he could learn how to be a prophet and a leader. He had to rely on inexperienced associates. They struggled and learned together, and Joseph was extremely rapid in his acquisition of knowledge and maturity. He unquestionably had unusual gifts. As we would say today, he was a “quick study.” He said he was taught by heavenly messengers and by other revelations from God, and I believe him.

One of his personal gifts is evidenced by the love and loyalty of the remarkable people who followed him. When Joseph challenged his followers to overcome their mortal imperfections, he did not raise himself above them, and they loved him for it. In a sermon preached a little over a month before he was murdered, he declared, “I never told you I was perfect—but there is no error in the revelations which I have taught.”[xxxiv] Joseph Smith had a “native cheery temperament” [xxxv] that endeared him to almost everyone who knew him. We have record of many adoring tributes, like that of an acquaintance who said, “The love the saints had for him was inexpressible.”[xxxvi]

The companionship of his friends was a delight to Joseph Smith, who saw society-building and community-building as major purposes of the gospel of Jesus Christ. According to a careful note taker, one of Joseph Smith’s sermons used these words, which go on to reveal his attitude toward the members of his Latter-day Saint community: “I see no faults in the church—let me be resurrected with the saints, whether to heaven or hell or any other good place—good society. What do we care [where we are] if the society is good?”[xxxvii] The Book of Mormon teaches, “Men are, that they might have joy.”[xxxviii] I believe a subsequent compiler had it right when he represented Joseph Smith as saying that “if we go to hell, we will turn the devils out of doors and make a heaven of it.”[xxxix]

All of his life, Joseph Smith lived on the frontier, where men pitted their brute strength against nature and sometimes against one another. He did not shrink from physical confrontation, and he had the courage of a lion. The last extradition effort started in June 1843 when he was kidnapped by two lawmen disguised as Mormon missionaries who punched cocked pistols into his ribs and repeatedly threatened to shoot him if he moved a muscle. Joseph endured these threats for a time and then snapped back, “Shoot away; I have endured so much persecution and oppression that I am sick of life; why then don’t you shoot, and have done with it instead of talking so much about it?”[xl] There were no shots on that occasion. The extradition conflict moved to one of the judicial hearings that will be elaborated tomorrow in Springfield.

VII.

All three of Joseph Smith’s extradition proceedings had the same result. The judges refused to send him back to Missouri. In a nation struggling to balance the rights of majority and minority, the courts acted to protect a persecuted prophet from what would probably have been his death in that state. Yet even these successes in the courtroom could not provide him permanent protection, and they provided only a modicum of vindication as well. Critics during his lifetime and in the 169 years since his death continued to assert claims and charges against him.

Because of my dual scholarly interests in Joseph Smith and in legal history, I personally investigated and evaluated many of these charges during the 16 years I lived in Illinois. I will mention these only briefly. The citations to two articles and a book I authored or co-authored on these subjects are in my footnotes.

One involved the legality of Nauvoo Major Joseph Smith and the City Council’s closing down an opposition newspaper as a public nuisance, a shocking violation of the freedom of the press as understood today but not under the law of that day.[xli]

Our book on the trial and acquittal of the accused murderers of Joseph Smith is published by the University of Illinois Press under the title Carthage Conspiracy. It relies on 10 years of original research in libraries nationwide and in original court records I discovered in the county courthouse in Carthage. I am astonished to report that this piece of Illinois legal history is still in print after nearly 40 years.[xlii]

The third is a long article on Joseph’s unsuccessful bankruptcy proceeding and the final settlement of his estate. In 1852, four years after the Mormons were driven from Illinois, a federal judge concluded this decade-long controversy with a decree that found no fraud or other moral impropriety on the part of the decedent, Joseph Smith.[xliii]

Joseph Smith’s character was perhaps best summed up by men who knew him best and stood closest to him in Church leadership. They adored him. Brigham Young declared, “I do not think that a man lives on the earth that knew [Joseph Smith] any better than I did; and I am bold to say that, Jesus Christ excepted, no better man ever lived or does live upon this earth.”[xliv] One does not need to agree with that superlative to conclude that the man whose legal contests will be dramatized tomorrow in Springfield was, indeed, a remarkable man, a great American, and one whom I and millions of our current countrymen honor as a prophet of God.



* I acknowledge with thanks the valuable research and writing assistance of Jeffrey Walker of the Church History Department on Parts I through V of this paper.

[i] Dallin H. Oaks, “Habeas Corpus in the States—1776-1865,” University of Chicago Law Review 32, no. 2 (1965): 243-88; Dallin H. Oaks, “Legal History in the High Court—Habeas Corpus,” Michigan Law Review 64, no. 3 (1966): 451-72; Dallin H. Oaks, “The ‘Original’ Writ of Habeas Corpus in the Supreme Court,” The Supreme Court Review, 1962, 153-211.

[ii] History of Sangamon County, Illinois (Inter-State Publishing Co., 1881), 103; Usher F. Linder, Reminiscences of the Early Bench and Bar of Illinois (Chicago Legal News Company, 1879), 87-88.

[iii] Isaac N. Arnold, Reminiscences of the Illinois Bar Forty Years Ago: Lincoln and Douglas as Orators and Lawyers (Chicago: Fergus Printing Co., 1881), 6.

[iv] “The Late Proceedings,” Times and Seasons (June 15, 1841) 2:449.

[v] A. T. Andreas, History of Chicago: From the Earliest Period to the Present Time. In Three Volumes. Volume 1.—Ending with the Year 1857 (Chicago: A. T. Andreas, 1884), 433-35.

[vi] History of the Church 4:40; Joseph Smith and Elias Higbee to Hyrum Smith, “Corner Missouri and 3d Street,” Letterbook 2:85-88. (verified)

[vii] History of the Church 4:80; Roll of History, Church History Library; see also History of the Church 6:157; New York Herald (January 26, 1844).

[viii] Federalist No. 51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments (February 8, 1788).

[ix] Abraham Lincoln, Address before the Young Men’s Lyceum of Springfield, Illinois (January 27, 1838), Collected Works of Abraham Lincoln (New Brunswick, NJ: Rutgers University, 1953) 1:108-115.

[x] Dallin H. Oaks, “The Suppression of the Nauvoo Expositor,” Utah Law Review, vol. 9, 862, 874 (1965).

[xi] Note 9 supra.

[xii] History of the Church 6:56-59; Teachings of the Prophet Joseph Smith, compiled by Joseph Fielding Smith, 326 (verified).

[xiii] John Welch, “Joseph Smith, the Preamble, and the Constitution,” Public Lecture delivered on June 26, 2013, sponsored by the John Adams Center, Brigham Young University.

[xiv] Messenger and Advocate (August 1836) 2:358; History of the Church 2:445.

[xv] “The Mormons,” New Yorker (October 13, 1838) 3:59.

[xvi] Millennial Star 8, vol. 1 (December 1840): 197; History of the Church 3:304.

[xvii] Jeffrey N. Walker, “Habeas Corpus in Early Nineteenth-Century Mormonism: Joseph Smith’s Legal Bulwark for Personal Freedom,” BYU Studies Quarterly 52, no. 1 (2013) 6.

[xviii] Journal of Discourses 2:167; History of the Church 5:470-71. The term “Kilkenny cat” refers to a tenacious fighter. (verified)

[xix] Journal of Jesse N. Smith: the life story of a Mormon Pioneer, 1834-1906 (Jesse N. Smith Family Association: Salt Lake City, 1953), 456.

[xx] Andrew H. Hedges and others, eds., Journals, Volume 2, The Joseph Smith Papers (Salt Lake City: Church Historian’s Press, 2011), 313; also see History of the Church 5:307.

[xxi] Andrew H. Hedges, Alex B. Smith, and Richard Lloyd Anderson, eds., Journals, Volume 1: December 1841-April 1843, vol. 2 of the Journals series of The Joseph Smith Papers, ed. Dean C. Jessee, Ronald K. Esplin, and Richard Lyman Bushman (Salt Lake City: Church Historian’s Press, 2011), (January 4, 1843), 224 (spelling, grammar, and punctuation regularized).

[xxii] History of the Church 6:9 from Joseph Smith, “Latter Day Saints,” in I. Daniel Rupp, comp., He Pasa Ekklesia [The Whole Church]: An Original History of the Religious Denominations at Present Existing in the United States (1844), p. 404. (verified)

[xxiii] Manuscript History of the Church, 1838-1856, volume A-1,469 CHI.; History of the Church 2:523. (verified)

[xxiv] Discourse given by Joseph Smith about July 1839 in Commerce, Illinois; reported by Willard Richards, in Willard Richards, Pocket Companion, pp. 75, 78-79, Church Archives.

[xxv] History of the Church 4:574; as published in the Times & Seasons, “Try the Spirits,” an editorial by Joseph Smith (April 1, 1842) 6:754. (verified)

[xxvi] History of the Church 3:389.

[xxvii] Doctrine and Covenants 8:3.

[xxviii] Joseph J. Ellis, His Excellency George Washington, New York: Knopf, 2004, 271. HIS EXCELLENCY. A title given by the constitution of Massachusetts to the governor of that commonwealth. Const. part 2, c. 2, s. 1, art. 1. This title is customarily given to the governors of the other states, whether it be the official designation in their constitutions and laws or not.

[xxix] Doctrine and Covenants 58:21.

[xxx] Doctrine and Covenants 101:76-80.

[xxxi] Parley P. Pratt, ed., Autobiography of Parley P. Pratt, Classics in Mormon Literature series (Salt Lake City: Deseret Book Co., 1985) 82.

[xxxii] Doctrine and Covenants 101:76-80.

[xxxiii] Doctrine and Covenants 24:9.

[xxxiv] The Words of Joseph Smith, ed. Andrew F. Ehat and Lyndon W. Cook [1980] (sermon dated May 12, 1844) (verified)

[xxxv] Joseph Smith—History 1:28.

[xxxvi] “Joseph Smith, the Prophet,” Young Woman’s Journal, Dec. 1905, 554 (quoting Mary Alice Cannon). (verified)

[xxxvii] The Words of Joseph Smith, ed. Andrew F. Ehat and Lyndon W. Cook [1980] (sermon dated July 23, 1843). (verified)

[xxxviii] 2 Nephi 2:25.

[xxxix] History of the Church, 5:516-17; from a discourse given by Joseph Smith on July 23, 1843, in Nauvoo, Illinois; reported by Willard Richards; see also appendix, page 562, item 3.

[xl] Joseph Smith, in Journal of Discourses, 26 vols. (Liverpool: F.D. Richards, 1855-86), 2:167, June 30, 1843; see also History of the Church 5:440.

[xli] Note 10 supra.

[xlii] Dallin H. Oaks and Marvin S. Hill, Carthage Conspiracy (University of Illinois Press, 1975).

[xliii] Dallin H. Oaks and Joseph I. Bentley, “Joseph Smith and Legal Process: In the Wake of the Steamboat Nauvoo,” 1976, BYU Law Review 735-82.

[xliv] Discourses of Brigham Young, sel. John A. Widtsoe [1954], 458-459.

 

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