Q&A with Jeffrey Walker on Joseph Smith and Habeas Corpus

Jeffrey N. Walker, “Habeas Corpus in Early Nineteenth-Century Mormonism: Joseph Smith’s Legal Bulwark for Personal Freedom,” BYU Studies Quarterly Vol. 52, No. 1, 2013, 4-97.

BCC: Tell us about your background and your interest in Joseph Smith and the law.

I am an attorney by training and an historian by desire.  What started as an interest in church history grew in to a hobby and then into a passion and now apparently into some kind of obsession.  I must confess that when working on a case or transaction involving Joseph I find like, Parley Pratt observed, that, “sleep is a burden.”  My office is filled with case files, transcripts and 19th century legal books.  To study and sort out this often overlooked part of Joseph Smith’s life is wonderfully fulfilling.

Currently I am a senior advisor for the Joseph Smith Papers Project of The Church of Jesus Christ of Latter-day Saints and manager and coeditor of its Legal and Business Series. For nearly twenty years I have also been a trustee and treasurer of the Mormon Historic Sites Foundation and the managing editor of the Mormon Historical Studies. I am currently an adjunct professor in the J. Reuben Clark Law School teach courses on 19th century law practices with a focus on both Joseph Smith and Oliver Cowdery (who practiced law for more than a decade while out of the church mainly in Tiffin, Ohio).  I also taught as a part-time instructor in the Church History and Doctrine Department at Brigham Young University for about five years.

I graduated from the J. Reuben Clark Law School in 1988 where I was a member of the BYU Law Review. I practiced law in Los Angeles with then Pillsbury Madison & Lillick (now Pillsbury Winthrop), in Salt Lake City with Jones Waldo and I am a founding partner of Holman Walker.

I have written and spoken on Joseph Smith with special emphasis on his legal and business affairs. Publications include, “Habeas Corpus in Early Nineteenth-Century Mormonism: Joseph Smith’s Legal Bulwark for Personal Freedom,” 52:1 BYU Studies Quarterly (2013), Gathering to Laie, (co-authored with Riley Moffit and Fred Woods) (Laie, HA: The Jonathan Nepala Center for Hawaiian and Pacific Island Studies, 2011), “Joseph Smith’s Introduction to the Law: The 1819 Hurlbut Case,” Mormon Historical Studies (Spring 2010); “John Taylor: Beyond ‘A Poor Wayfaring Man of Grief,’” in Champion of Liberty John Taylor (Provo, UT: Religious Studies Center, 2009), “Oliver Cowdery’s Legal Practice in Tiffin, Ohio,” in Days Never to be Forgotten Oliver Cowdery (Provo, UT: Religious Studies Center, 2009), “Mormon Land Rights in Caldwell and Daviess Counties and the Mormon Conflict of 1838: New Findings and New Understandings,” 47:1 BYU Studies Quarterly (2008).

BCC: Can you briefly tell us what your article is about?

The article is the result of research that I started about four or five years ago when I worked to have a better understanding of just how writs of habeas corpus were used during Smith’s lifetime.  That research was initially presented in 2009 at the Mormon History Association Meeting in Springfield, Illinois.  I then started using this research in my teaching at the law school.  Jack Welch, who co-teaches the course with me, encouraged me to reduce my work to writing.  As all law school classes are recorded Jack even went so far as to have my lecture on habeas corpus in the 19th century be transcribed handing it to me as a “first draft” of my paper.  The paper grew at one point to more than 140 pages, but with the capable help of Jennifer Hurlbut, as editor at BYU Studies, we finally got it done and published in the latest edition of BYU Studies.

After Joseph Smith’s incarceration in Liberty Jail, Smith believed that he would not survive another imprisonment. It was in fact his jailing in Illinois that ended in his murder. My article explores Smith’s use of the writ of habeas corpus to combat those who sought his imprisonment. I start by introducing the reader to the historical use of habeas corpus and provide an analysis of the use of this writ within the American legal system during Smith’s lifetime.  I then apply this understanding to specific instances where Joseph Smith employed the writ; from his imprisonment at Liberty to the first two extradition efforts by the Missourians to the enactment of various habeas corpus ordinances by the Nauvoo City Council. While critics have argued that Smith’s use of habeas corpus was overreaching, I hope that my research brings a new perspective to more accurately understand Smith’s use of habeas corpus in the context of the law and practice in his day.

What is the basic difference between our modern use of habeas corpus and its use by Joseph Smith?

I believe that Joseph Smith’s use of the writ of habeas corpus fell squarely in accord with the use of the writ under the law and practice of his day.

Point One. One must remember that during each of these extradition efforts and resulting hearings on Smith’s writs of habeas corpus that Joseph Smith was always represented by legal counsel. And not just any counsel. Smith retained some of the most well known and most respected legal counsel of his day. For example, during the first extradition, Smith had a team of attorneys led by Orville Browning. Browning would later serve as a U.S. Senator, Secretary of the Interior and U.S. Attorney General. During the hearings on the second extradition effort, Smith’s lead counsel was Justin Butterfield, the U.S. Attorney for Illinois. Consequently, critiquing Smith’s use of the writ of habeas corpus in these cases was critiquing his legal counsel.

Point Two.  I examined all the reported case involving the writ of habeas corpus in the United States between 1800 and 1850, in addition to the legal commentary during the same period. My research uncovered that unlike today where more than 95% of all writs of habeas corpus are brought as a post-conviction remedy, during Smith’s time approximately 40% were brought after indictment, but before trial and only about 50% were brought after a conviction. This realization led me to further analyze the differences.

Point Three. The critical difference in the courts was the change from a “term-based” court system to a “standing” court system. In the early nineteenth century, courts were in session only twice a year – in the spring and fall. This difference is central to the corresponding change in trends of filing petitions for writs of habeas corpus. The two-term system created a unique situation wherein a person could be arrested for an alleged crime and held until the next term began. During this period, a prisoner would have both significantly more time and opportunity to seek a review of his or her incarceration by petitioning for a writ of habeas corpus. These long incarceration periods increased incentive to contest the incarceration.

In your article you write, “Interestingly, understanding the application of this writ during the nineteenth century provides insight and perspective to its use in our modern environment.” With modern controversies such as Guantanamo in mind, is there anything we can learn from the Joseph Smith evidence?

In the modern US court system, writs of habeas corpus are almost never used in the short time after an arrest and before a grand jury hearing. They are used after the trial.  But in the 1830s, people could be in jail for months before a grand jury hearing. The grand jury met only twice a year. So people often used writs of habeas corpus.  Now, prisoners in Guantanamo are being held for years without any hearing. So they are trying to use writs of habeas corpus. Some people have said that you can’t use a writ of habeas corpus before a trial, but that’s just wrong. This history reminds us that you can use a writ of habeas corpus any time after an arrest or detention.

Jeffrey can be reached at jeffrey dot walker @ ldschurch dot org.


  1. Love this quote attributed to Smith:

    “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 Kilkenny cats” (JD 2: 163, 167).

    As someone who works but 100m from the tomb of King John, I’m a big fan of HC.

  2. Absolutely fascinating. Thanks Jeffrey for answering these questions. I’m struck by the usage of HC and wonder whether there are parallels to how other writs (like mandamus for example) were used during the Civil Rights movement in the South to advance the cause.

  3. Yes, Habeas Corpus is essential. And it’s cool that it plays such a large part in our own religious history, as deftly described by Walker in the article and this post!

    Evans, though our modern procedural reforms were a big step forward, there is still something inherently powerful in the old writ practice, wouldn’t you say? It’s brilliantly* ad hoc, powerfully so, in some ways, but, unfortunately very ineffecient (as Dickens’ Bleak House shows).

    * how would you say this in American English? “genius-ly”?

  4. ‘Brilliantly’ would work but with a slightly different implication. Maybe ‘amazingly’?

  5. J. Stapley says:

    Thanks for taking the time to answer these questions, Jeffrey. I always like to see some of the behind the scenes work on such projects.

  6. Kevin Barney says:

    WAsn’t there a recent conference on this subject in Springfield? Can you tell us about that?

  7. Jacob H. says:

    Did other jurisdictions besides the Municipal Court at Nauvoo reserve the right to try not only the legality of a writ regardless of where it originated, but also the underlying merits of the writ?

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