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Affidavit, 5 September 1838 [State of Missouri v. JS et al. for Riot]

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Affidavit, 8 August 1838 [State of Missouri v. JS et al. for Riot] Appendix: Petition to Elias Higbee, circa 16 August 1838 [State of Missouri v. JS et al. for Riot] Habeas Corpus, circa 16 August 1838, Draft [State of Missouri v. JS et al. for Riot] Affidavit, 5 September 1838 [State of Missouri v. JS et al. for Riot] Petition, circa 11 September 1838 [State of Missouri v. JS et al. for Riot]

Affidavit, 5 September 1838 [State of Missouri v. JS et al. for Riot]

Source Note

JS, Affidavit, , Caldwell Co., MO, 5 Sept. 1838; handwriting of and ; signature of JS; certified by ; three pages. Featured version inserted in Sidney Rigdon and others (including JS), “To the Publick”; JS Collection, CHL.
Bifolium measuring 12½ × 7⅞ inches (32 × 20 cm), with forty very faded lines per page. The affidavit was folded for filing. The lack of official filing notations suggests that the featured version of the affidavit was not submitted to the Daviess County Circuit Court. In 1839, the featured copy was inserted in “To the Publick,” a petition draft that was prepared by and others in and was published in 1840 as An Appeal to the American People. The affidavit, along with “To the Publick,” has likely remained in continuous institutional custody.

Footnotes

  1. [1]

    [Rigdon], Appeal to the American People, 26–28.

Historical Introduction

On 5 September 1838, JS prepared an affidavit describing his involvement in a confrontation between a group of armed men and , a justice of the peace in , Missouri. The confrontation occurred in response to rumors of a fight between Latter-day Saints and other Missourians at an election held on 6 August 1838 in , the seat of Daviess County. Reports indicated two church members were killed, and this news prompted JS and dozens of Latter-day Saint men to travel from , Caldwell County, Missouri, to Daviess County to investigate. At in Daviess County, the men learned that no one had been killed, although several on both sides were severely injured. There were also reports that Adam Black—who in 1837 had helped lead an attempt to expel Latter-day Saints from Daviess County—was again assembling vigilantes to move against the Saints. On 8 August, JS and more than one hundred Latter-day Saint men visited Black’s residence, where after a heated exchange Black wrote and signed a statement indicating he would uphold the Constitution and the Saints’ rights.
On 10 August, ’s ally and other citizens visited , Missouri, and presented a complaint against JS and to Judge . In the complaint, Peniston and three others claimed that JS, Wight, and more than one hundred other Latter-day Saints had surrounded Black’s home and compelled him, under the threat of death, to sign an agreement, the contents of which Peniston and the others did not disclose. Peniston and his companions also asserted that five hundred armed Latter-day Saints—“whose movements and conduct are of a highly insurrectionary and unlawful character”—had assembled in Daviess County “to take revenge for some injuries or immaginary injuries done to some of their friends.” Based on these allegations, King issued a warrant to arrest JS and Wight, with Daviess County sheriff William Morgan assigned to complete the task.
When the sheriff went to ’s home in , Wight reportedly refused arrest, arguing that “the law had never protected him”—presumably referring to the failure of civil authorities to protect the Saints in , Missouri, in late 1833. Furthermore, Wight allegedly said “that the whole state of could not take him.” Morgan, who opted against taking Wight by force, then proceeded to , where he presented JS with the warrant on 16 August 1838. According to JS’s journal, which was keeping, JS informed the sheriff that although he was willing to submit to arrest, “he wished to be tried in his own as the Citisens of were highly exasperated toward him.” Morgan left Far West without serving the warrant, stating that he needed to consult with . Upon returning to Far West, Morgan declined to arrest JS, apparently because Morgan believed he was not authorized to act outside of Daviess County. Meanwhile, , , and others advertised that “the leaders of the banditti”—a reference to the Latter-day Saints—“have not, and say they will not be taken nor submit to the laws of the land.” Black’s allies called upon vigilantes in neighboring counties to become the law’s “executors,” setting 7 September as the day appointed to arrest JS and Wight.
On 2 September, rumors reached JS that men were gathering from eleven counties to arrest him and . noted in JS’s journal, “This looks a leettle to[o] much like mobocracy, it foretells some evil intentions,” suggesting that the Saints believed and his allies ultimately intended to expel church members from . Prompted by these reports, JS contacted attorney and militia commander for assistance. On 4 September, Atchison met with JS in and promised to “do all in his power to disperce the mob” and to represent JS and Wight in court. The two church leaders agreed to submit to arrest, and Atchison arranged a preliminary hearing with to be held near the boundary between and Daviess counties on 6 September, a date probably chosen to preempt the vigilantes’ plan to arrest JS on 7 September.
In preparation for the hearing, on 5 September JS composed this affidavit with and , who was a justice of the court. In the affidavit, JS described the rumors of violence at the polls, the subsequent expedition of Latter-day Saint men from Caldwell County to , and the Saints’ peaceful intentions at ’s home. Higbee inscribed the first two pages and parts of the third page of the document, while Robinson wrote other portions of the third page. Both Higbee and Robinson made changes to the document as they wrote, but some alterations may have been made at a later time. After the affidavit was completed, JS signed the document and Higbee certified it. Although JS may have intended to submit the affidavit to , no extant evidence indicates the affidavit was filed with the court. However, the four witnesses who testified on JS’s behalf at the hearing likely conveyed the content of the affidavit to the judge.
See also Introduction to State of Missouri v. JS et al. for Riot.

Footnotes

  1. [1]

    Sidney Rigdon recalled that Josiah Morin, a Democratic candidate from Daviess County and a friend to the Latter-day Saints, reported the election-day affray to church leaders in Far West, although he was not at the polls when the fighting broke out. John P. Greene indicated that several messengers brought word of the fracas. (Sidney Rigdon, JS, et al., Petition Draft [“To the Publick”], pp. 12[a]–[12b]; Greene, Facts relative to the Expulsion, 19.)

    Greene, John P. Facts Relative to the Expulsion of the Mormons or Latter Day Saints, from the State of Missouri, under the “Exterminating Order.” By John P. Greene, an Authorized Representative of the Mormons. Cincinnati: R. P. Brooks, 1839.

  2. [2]

    Adam Black, Certificate, 27 July 1838, copy; William Bowman, Certificate, no date, copy; John Brassfield, Certificate, no date, copy, Record Group 233, Records of the U.S. House of Representatives, National Archives, Washington DC; “A History, of the Persecution,” Times and Seasons, Mar. 1840, 1:65–66; JS, Journal, 7–9 Aug. 1838; Samuel Brown, Affidavit, Caldwell Co., MO, 5 Sept. 1838, pp. 11[a]–[11b], in Sidney Rigdon, JS, et al., Petition Draft (“To the Publick”).

    Record Group 233, Records of the U.S. House of Representatives / Petitions and Memorials, Resolutions of State Legislatures, and Related Documents Which Were Referred to the Committee on Judiciary during the 27th Congress. Committee on the Judiciary, Petitions and Memorials, 1813–1968. Record Group 233, Records of the U.S. House of Representatives, 1789–2015. National Archives, Washington DC. The LDS records cited herein are housed in National Archives boxes 40 and 41 of Library of Congress boxes 139–144 in HR27A-G10.1.

  3. [3]

    JS, Journal, 7–9 Aug. 1838; Adam Black, Complaint, Daviess Co., MO, 28 Aug. 1838, copy, Mormon War Papers, MSA.

    Mormon War Papers, 1838–1841. MSA.

  4. [4]

    Wight was probably named along with JS because Wight was widely considered the leader of the Latter-day Saints in Daviess County.

  5. [5]

    William Peniston et al., Complaint, Ray Co., MO, 10 Aug. 1838, State of Missouri v. JS et al. for Riot (Mo. 5th Jud. Cir. 1838), microfilm 959,084, U.S. and Canada Record Collection, FHL. Black, who wrote a similar statement on 8 August 1838, was apparently not in Richmond on 10 August. Along with Peniston, three other men—William Bowman, Wilson McKinney, and John Netherton—signed the 10 August complaint. (Adam Black, Affidavit, Daviess Co., MO, 8 Aug. 1838, in “Public Meeting,” Missouri Republican [St. Louis], 3 Sept. 1838, [2].)

    Missouri Republican. St. Louis. 1822–1919.

  6. [6]

    Warrant, Ray Co., MO, 10 Aug. 1838, State of Missouri v. JS et al. for Riot (Mo. 5th Jud. Cir. 1838), microfilm 959,084, U.S. and Canada Record Collection, FHL. King did not identify a charge in the warrant. In April 1839, a Daviess County grand jury indicted JS, Wight, and other Latter-day Saint men for causing a riot at Black’s home. (Indictment, [Honey Creek Township, MO], [ca. 10] Apr. 1839, State of Missouri v. JS et al. for Riot [Daviess Co. Cir. Ct. 1839], Historical Department, Nineteenth-Century Legal Documents Collection, CHL.)

  7. [7]

    “Mormon War,” Missouri Republican (St. Louis), 3 Sept. 1838, [2]; see also Historical Introduction to Letter from William W. Phelps, 6–7 Nov. 1833.

    Missouri Republican. St. Louis. 1822–1919.

  8. [8]

    JS, Journal, 16–18 Aug. 1838; see also Petition to Elias Higbee, ca. 16 Aug. 1838. Morgan was apparently unaware of a Missouri statute that permitted him to work through a local magistrate to serve the warrant. (An Act to Regulate Proceedings in Criminal Cases [21 Mar. 1835], Revised Statutes of the State of Missouri [1835], p. 475, art. 2, secs. 4–5.)

    The Revised Statutes of the State of Missouri, Revised and Digested by the Eighth General Assembly, During the Years One Thousand Eight Hundred and Thirty-Four, and One Thousand Eight Hundred and Thirty-Five. Together with the Constitutions of Missouri and of the United States. 3rd ed. St. Louis: Chambers and Knapp, 1841.

  9. [9]

    “Public Meeting,” Missouri Republican (St. Louis), 3 Sept. 1838, [2]; “The Mormons,” Missouri Argus (St. Louis), 6 Sept. 1838, [1]; “Mormons Once More,” Hannibal (MO) Commercial Advertiser, 25 Sept. 1838, [1]; “Mormon Troubles,” Missouri Republican, 19 Sept. 1838, [2].

    Missouri Republican. St. Louis. 1822–1919.

    Missouri Argus. St. Louis. 1835–1841.

    Hannibal Commercial Advertiser. Hannibal, MO. 1837–1839.

  10. [10]

    JS, Journal, 2 Sept. 1838.

  11. [11]

    JS, Journal, 4 and 6 Sept. 1838; Austin A. King, Ray Co., MO, to William Morgan, Daviess Co., MO, 4 Sept. 1838, William Morgan, Papers, CHL.

    Morgan, William. Papers, 1838–1839. CHL. MS 19757.

  12. [12]

    Although JS referred to himself as a “deponent” in the document, the format more closely matches that of an affidavit—a sworn statement. A deposition is an official transcript of a witness’s testimony before a “competent tribunal,” with the witness “answer[ing] all the interrogatories.” (“Affidavit” and “Deposition,” in Bouvier, Law Dictionary, 1:63, 313.)

    Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; with References to the Civil and Other Systems of Foreign Law. 2 vols. Philadelphia: T. and J. W. Johnson, 1839.

  13. [13]

    Higbee and Robinson may have made additional changes to the affidavit in 1839, when they assisted Sidney Rigdon in preparing a history of the conflicts between the Latter-day Saints and other Missourians. The published history includes a version of the affidavit that incorporates Higbee’s and Robinson’s changes. Since it is unknown when each change was made, each has been reproduced here. (Sidney Rigdon, JS, et al., Petition Draft [“To the Publick”], pp. 15[a]–[15c]; [Rigdon], Appeal to the American People, 26–28.)

  14. [14]

    It is possible that a fair copy of the affidavit was made and submitted to King in 1838 and filed the following year in the Daviess County Circuit Court with other documents pertaining to the case. In 1974, when the contents of the case files were microfilmed, the affidavit was missing. (See Source Note for Recognizance, 7 Sept. 1838.)

  15. [15]

    The four defense witnesses were Robinson, Dimick B. Huntington, Gideon Carter, and Adam Lightner. (JS, Journal, 7 Sept. 1838.)

Asterisk (*) denotes a "featured" version, which includes an introduction and annotation. Sidney Rigdon, JS, et al., Petition Draft (“To the Publick”), circa 1838–1839
*Affidavit, 5 September 1838 [ State of Missouri v. JS et al. for Riot ]
Sidney Rigdon, JS, et al., Petition Draft (“To the Publick”), circa 1838–1839 Sidney Rigdon, Appeal to the American People, 1840 Sidney Rigdon, Appeal to the American People, 1840, Second Edition History, 1838–1856, volume B-1 [1 September 1834–2 November 1838] “History of Joseph Smith”

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State of Missouri) ss [scilicet]
)
Before me , one of the Justices of the County Court, within and for the County of aforesaid. Personally came Joseph Smith Junr who being duly sworn according to Law, deposeth and saith, “That on the 7th day of August 1838, being informed that an affray had taken place in on at the Election, in the town of , in the which some two persons were killed, and one person badly wounded, and fled to the woods to save his life, all of which were <​said to be​> persons belonging to the Society of Mormons so Called <​the ​> And further, said— informant stated “that those persons who committed the outrage, would not suffer said the bodies of those who had been killed, to be taken of[f] the ground and buried. These reports with others, concerning the affair one of which was, that the Mormons <​saints​> so called had not the privelege of voting at the polls, as other citizens. Another was, that those opposed to the Mormons <​saints​> were determined to drive them from , and Also that the persons they were Arming & strengthening their forces, and preparing for a battle; & that the Mormons <​saints​> were preparing & making ready to stand in self defence. These reports, having excited, the feelings of the citizens of “” and vicinity, I was invited with others, by & some others, to go out to , to the scene of these Outrages; they having previously having determined to go out and learn the facts concerning said reports. Accordingly a some of the citizens,— myself among the number, went out, two; three, and four, in companys, As we they got ready. The reports and exitement continued untill several of those small companys, through the day, were induced to follow the first, who were all eager to learn the facts concerning this matter: we arived in the evening, at the house of , about 3 miles from , the scene of the reported outrages; here we learned the truth concerning the said affray, which had been considerably exageated [exaggerated], yet, there had been a serious Outrage committed. We there learned that the mob were was collected at [p. [1]]
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Related Case Documents

 Documents Related to State of Missouri v. JS et al. for Riot

Editorial Title
Affidavit, 5 September 1838 [State of Missouri v. JS et al. for Riot]
ID #
412
Total Pages
4
Print Volume Location
JSP, D6:219–225
Handwriting on This Page
  • Elias Higbee

Footnotes

  1. new scribe logo

    Elias Higbee handwriting begins.

  2. [1]

    Latter-day Saint John D. Lee recalled that by August 1838, “the two political parties [Democrat and Whig] were about equally divided in Daviess county, and that the Mormons held the balance of power, and would turn the scale which ever way they desired.” Before the 6 August election, rumors spread that the Daviess County Whigs, realizing the Latter-day Saints would likely vote for the Democrats, planned to stop the Saints from voting. Just before the outbreak of fighting in Gallatin, a Missourian declared that when the Saints resided in Clay County, they were permitted to vote “no more than the dam[n] negros.” (Lee, Mormonism Unveiled, 56; Samuel Brown, Affidavit, Caldwell Co., MO, 5 Sept. 1838, pp. 11[a]–[11b], in Sidney Rigdon, JS, et al., Petition Draft [“To the Publick”].)

    Lee, John D. Mormonism Unveiled. St. Louis, MO: Sun Publishing Company, 1882.

  3. [2]

    John Butler, who was present at the Gallatin polls and heard Peniston speak, later recounted that Peniston claimed “he had headed a company to order the Mormons, off of there farmes & possessions.” This action was presumably part of a mid-1837 effort to intimidate church members into leaving the county. (Butler, “Short Account of an Affray,” [1], CHL; see also Sidney Rigdon, Far West, MO, to Sterling Price, 8 Sept. 1838, draft, CHL.)

    Butler, John L. “A Short Account of an Affray That Took Place betwene the Latter Day Saints and a P[o]rtion of the People of Davis County Mo at an Election Held in Galaton, August 6, 1838,” 1859. CHL. MS 2418.

    Rigdon, Sidney. Letter, Far West, MO, to Sterling Price, 8 Sept. 1838. Draft. CHL. MS 2560.

  4. [3]

    Latter-day Saint William Swartzell noted that armed church members “assembled at Adam-on-Diammon, for the purpose of resisting an attack that was hourly expected.” Women and children were gathered together and guarded in expectation of a siege. (Swartzell, Mormonism Exposed, 28.)

    Swartzell, William. Mormonism Exposed, Being a Journal of a Residence in Missouri from the 28th of May to the 20th of August, 1838, Together with an Appendix, Containing the Revelation concerning the Golden Bible, with Numerous Extracts from the ‘Book of Covenants,’ &c., &c. Pekin, OH: By the author, 1840.

  5. [4]

    See Sampson Avard, Testimony, Richmond, MO, Nov. 1838, pp. [2]–[3], State of Missouri v. JS et al. for Treason and Other Crimes (Mo. 5th Jud. Cir. 1838), in State of Missouri, “Evidence”; and Baugh, “Call to Arms,” 103–107. Avard was a Danite general, subordinate only to the First Presidency and Captain General Elias Higbee. Robinson recorded in JS’s journal that “the bretheren from all parts of the County, followed after and continued to come and join us and before we arrived at Col. [Lyman] Wights we had quite a large company.” This company was led by the First Presidency, “General Higbee,” and “Gen. Avard.” (Reed Peck, Quincy, IL, to “Dear Friends,” 18 Sept. 1839, pp. 45, 47, 63, Huntington Library, San Marino, CA; Constitution of the Society of the Daughter of Zion, ca. Late June 1838; JS, Journal, 7–9 Aug. 1838.)

    Baugh, Alexander L. “A Call to Arms: The 1838 Mormon Defense of Northern Missouri.” PhD diss., Brigham Young University, 1996. Also available as A Call to Arms: The 1838 Mormon Defense of Northern Missouri, Dissertations in Latter-day Saint History (Provo, UT: Joseph Fielding Smith Institute for Latter-day Saint History; BYU Studies, 2000).

    Peck, Reed. Letter, Quincy, IL, to “Dear Friends,” 18 Sept. 1839. Huntington Library, San Marino, CA.

  6. [5]

    Robinson recorded in JS’s journal that “some 15 or 20 men started from this place [Far West] armed and equipt for our defence the bretheren from all parts of the County, followed after and continued to come and join us.” (JS, Journal, 7–9 Aug. 1838.)

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