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Professor Thompson
I am persuaded by your arguments that no injustice was done in Joseph being released by the issue of the writs. But I wonder whether the argument might not have been yet more persuasive if the contrary position had been explained in a little more detail. One story is always persuasive until the other is told, so the aphorism goes, and there were parts of your paper that caused me to wonder about the nature of the contrary argument.
You state: “That the United States Circuit Court so readily issued a writ of habeas corpus shows that the Nauvoo Municipal Court’s issue of a similar writ, four months earlier on August 8, 1842, was soundly based on habeas corpus law and practice in the pre-Civil War United States.“ But surely whether the issue of a writ is in accordance with law and practice is not to be determined by whether another court, perhaps receiving different evidence and submissions, and certainly with a different jurisdiction (see Butterfield’s advice on p 299 above), later makes the same order. Does it not depend on the reasons for the issue of the writ, something which is not developed in your brief reference after endnote 108 to the Municipal Court’s decision?
Secondly, I looked in vain for an explanation as to why “jeopardy attached”. You explain in end notes 119 and 122 about how that arises when the matter comes before a jury for trial, citing the relevant constitutional articles, but end note 119 explains why jeopardy would not attach, and I could not find any explanation for your assertion to the contrary on page 302 above.
Finally, the assertion that the Municipal Court did not overreach its chartered powers as some have argued, left me uncertain as to the content of that argument. A hint of it may have been given in your statement on page 303 above that ”If Nauvoo and the other cities of Illinois that were given habeas corpus powers in the late 1830s and early 1840s were able to exercise those powers only in respect to arrests made under city authority, then those powers would have been redundant from the date of their issue”, perhaps indicating an argument that the habeas corpus power extended only to arrests “under city authority”. But if so, I would have enjoyed understanding the foundation of that argument, and why it was weak or “redundant”.
Notwithstanding these matters, I appreciated the scholarly analysis. It would be churlish of me to wonder whether your reference to the “martyrdom by the Latter-day Saints” in the second paragraph might have been better expressed. Thank you for your time, thoughtfulness and skill in considering an important subject.
Well done pair of articles. I have long been interested in a treatment of how the Nauvoo City Council reacted to writs and saw a little of this in your articles. These are well-written articles, although I think the ethics of Reynolds’ actions aren’t all that compelling. One can be unethical yet still be legal.
Thank you for such a wonderful article. It was very interesting and obviously well researched. Thank you for describing the backstory of Joseph’s legal troubles that shows they were contrived. And for further vindicating his reputation.
Joseph Smith’s life was so interesting. How could it ever get more interesting? Then another article like this one comes along. Thanks for sharing.