Appendix: Petition to Elias Higbee, circa 16 August 1838 [State of Missouri v. JS et al. for Riot]
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Source Note
, on behalf of JS, Petition, , Caldwell Co., MO, to , , Caldwell Co., MO, ca. 16 Aug. 1838; handwriting of ; one page; George W. Robinson, Papers, CHL. Includes docket.Single leaf measuring 12½ × 7¾ inches (32 × 20 cm) with forty printed lines. The document was folded for transmission and perhaps for filing. Later, church clerk docketed the verso with “August 1838 | Petition for Habeas Corpus”, which indicates that the petition has been in continuous institutional custody since the 1840s or 1850s, when Bullock served as a clerk for both JS and the Church Historian’s Office.
Footnotes
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1
Jessee, “Writing of Joseph Smith’s History,” 456–458; “Another One Gone,” Salt Lake Daily Herald, 12 Feb. 1885, 8.
Jessee, Dean C. “The Writing of Joseph Smith’s History.” BYU Studies 11 (Summer 1971): 439–473.
Salt Lake Daily Herald. Salt Lake City. 1870–1889.
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Historical Introduction
In mid-August 1838, JS’s associate prepared a petition for a writ of habeas corpus—directed to the county court for , Missouri—challenging JS’s recent arrest. A writ of habeas corpus commanded the sheriff, jailer, or other government officer holding a prisoner in custody to bring the prisoner before the court, which would then review the reasons for the arrest. Higbee prepared the petition on JS’s behalf, but it was never completed or officially submitted.JS’s arrest stemmed from an allegation that he and had threatened to kill , a justice of the peace in , Missouri, when they and more than one hundred other Latter-day Saint men confronted Black at his residence on 8 August 1838. Based on this claim, Judge of ’s fifth judicial circuit issued a warrant for the arrest of JS and Wight on 10 August. William Morgan, sheriff of Daviess County, was tasked with serving the warrants, and he apparently attempted to arrest Wight in , a Mormon settlement in Daviess County. Unsuccessful, Morgan then confronted JS at his home in , Caldwell County, on 16 August. According to , who was keeping JS’s journal at the time, JS informed Morgan that he was willing to submit to arrest but “wished to be tried in his own County [] as the Citisens of Daviess County were highly exasperated toward him.” In his request, JS was apparently appealing to the Missouri statute that permitted defendants to seek a change of venue if they believed they would not receive a fair trial in the county where the alleged crime occurred. Robinson noted in JS’s journal that “the sheriff did not serve his writ upon hearing this, and said he would go to and see Judge King upon the subject.” Newly appointed to his office, Morgan may not have known that the change-of-venue statute had no bearing on whether he could arrest JS and that it could only be applied after an indictment.It was likely within this context of JS being at risk of arrest that JS’s associates made preparations to seek his and possibly other Mormons’ release from arrest by petitioning the court for a writ of habeas corpus. first wrote what appears to be a legal form that included details reflecting the situation with Morgan, leaving several blanks that could be filled in later as circumstances unfolded. Robinson’s form addressed the petition to as a justice of the county court, identified Morgan as the sheriff holding the warrant and the unnamed prisoner, alleged that the detention was illegal, and asked Higbee “to enquire in to the cause of such confinement.” Robinson left blank spaces for the names of the petitioner and the prisoner to be filled in later. Although he dated the petition draft August 1838, he left a blank space for the day, likely because he was uncertain when Morgan would return to to attempt once more to arrest JS.Using the legal form created by , prepared a petition specifically for JS, which is featured here. The petition is undated but was clearly produced on or after 8 August 1838, when JS and other Latter-day Saints confronted at his home in . On 9 August, JS and Robinson (and presumably Higbee) returned to from Daviess County. Robinson noted in JS’s journal that on 10 August, “Nothing of importance transpired . . . the presidency were at home, being somewhat fatigued did not leave their houses to transact much buisness.” Higbee’s petition was more likely prepared on or after the evening of 13 August, on which day Robinson noted in JS’s journal that “the first Presidency returned at evening” from another visit to Daviess County and that on the way home, “they were chased some 10 or 12 miles by some evil designing persons but escaped out of their hands.” Moreover, they received notification that Judge had issued an arrest warrant for JS and . The petition was apparently prepared before 6–7 September, when JS traveled to Daviess County for a hearing before Judge King, and more likely by 4 September, when JS’s lawyers began arranging the hearing.The most probable time period the petition was created was mid-August, around the time of Sheriff Morgan’s encounters with JS in . When Morgan departed JS’s home on 16 August, he was bound for , Missouri, to consult with , and he planned to return soon after. Richmond was approximately thirty miles—about a day’s ride—from Far West, so JS would have expected Morgan to return as early as the following evening; thus, the petition was most likely produced shortly after Morgan’s departure.Missouri law permitted individuals not named in the arrest warrant—such as —to apply for and sign a writ of habeas corpus on behalf of the prisoner. Higbee addressed the petition to himself as a county court justice and, as in ’s template, named Morgan as the sheriff holding the warrant and the prisoner, claimed the detention was illegal, and requested that the court investigate the cause of detainment. Unlike Robinson’s form, Higbee’s petition explicitly named JS as the prisoner. Higbee, like Robinson, did not name the petitioner, although he did leave three lines blank for the petitioner’s signature. Higbee dated the petition August 1838 but, as in Robinson’s form, left the day blank. Higbee then inscribed a certification under his own authority, with blank spaces left for the name of the petitioner and the date. Higbee also left space for his signature as county court justice. The petition was presumably prepared in such a way that if JS were arrested by Morgan, someone could sign, date, and submit the petition at a moment’s notice, after which Higbee would sign and date his already-prepared certification, quickly issue a writ of habeas corpus, and send an enforcing officer to intercept Morgan before he could take JS across the border into .wrote in JS’s journal that when Morgan returned to , he told JS “very gravely that he (Prest Smith) was out of his jurisdiction and that he (Said Sheriff) could not act in this county.” In other words, as sheriff of , Morgan could not arrest JS, a resident of —at least not without the help of Caldwell County officials, which Morgan apparently did not seek. As a result, the petition for habeas corpus was rendered unnecessary, and it was therefore neither completed nor submitted to . Morgan then departed Far West, leaving the arrest warrant for JS unserved, after which rumors circulated that JS had resisted arrest.Because it is unknown if JS was involved in creating the petition, and because the petition was never completed or submitted, it is included as an appendix rather than as a JS document.
Footnotes
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1
Missouri law allowed petitions for a writ of habeas corpus to be presented to “any justice of the county court.” (An Act to Regulate Proceedings on Writs of Habeas Corpus [6 Mar. 1835], Revised Statutes of the State of Missouri [1835], p. 297, art. 1, sec. 2.)
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.
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2
“Habeas Corpus,” in Bouvier, Law Dictionary, 1:454–456; Walker, “Habeas Corpus in Early Nineteenth-Century Mormonism,” 5–8; see also Historical Introduction to Petition to George Tompkins, between 9 and 15 Mar. 1839, in JSP, D6:342–343.
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.
Walker, Jeffrey N. “Habeas Corpus in Early Nineteenth-Century Mormonism: Joseph Smith’s Legal Bulwark for Personal Freedom.” BYU Studies 52, no. 1 (2013): 4–97.
JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.
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See Historical Introduction to Affidavit, 5 Sept. 1838, in JSP, D6:219–220; and JS, Journal, 16–18 Aug. 1838.
JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.
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JS, Journal, 16–18 Aug. 1838.
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An Act to Regulate Proceedings in Criminal Cases [21 Mar. 1835], Revised Statutes of the State of Missouri [1835], pp. 486–487, art. 5, sec. 16.
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.
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JS, Journal, 16–18 Aug. 1838. At the time, Judge Austin A. King resided in Richmond, Ray County, Missouri.
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History of Daviess County, Missouri, 243.
The History of Daviess County, Missouri. An Encyclopedia of Useful Information, and a Compendium of Actual Facts. . . . Kansas City, MO: Birdsall and Dean, 1882.
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8
An Act to Regulate Proceedings on Writs of Habeas Corpus [6 Mar. 1835], Revised Statutes of the State of Missouri [1835], p. 297, art. 1, secs. 2–4; Petition, ca. 16 Aug. 1838, draft, George W. Robinson, Papers, CHL.
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.
Robinson, George W. Papers, 1838. CHL.
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JS’s journal entry for 16 August 1838 appears to cover the events of more than just that date. It mentions Morgan’s arrival in Far West from Daviess County, his departure from Far West to Richmond, his return from Richmond to Far West, and his ultimate departure from Far West to Daviess County. The journal entry was evidently recorded retroactively and did not note the precise date that Morgan returned from Richmond to Far West. The next journal entry, for 20–21 August, covers a different subject and therefore seems to imply that the sheriff had already departed from Far West to Daviess County by that time (that is, on 19 August or earlier). (JS, Journal, 16–18 and 20 Aug. 1838.)
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15
In addition to creating a legal form for petitioning habeas corpus, Robinson also created what appears to be a legal form for a writ of habeas corpus. Following the language of a writ, this document ordered Morgan to bring an unidentified prisoner (the form leaves a blank for the prisoner’s name) before Judge Higbee, who would investigate the cause of confinement. While Higbee used Robinson’s form for petitioning habeas corpus in order to produce a petition for JS, it is unknown whether he or anyone else used Robinson’s form to produce a writ naming JS as the prisoner. (Writ of Habeas Corpus, ca. 16 Aug. 1838, George W. Robinson, Papers, CHL.)
Robinson, George W. Papers, 1838. CHL.
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16
JS, Journal, 16–18 Aug. 1838.
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17
See Historical Introduction to Affidavit, 5 Sept. 1838, in JSP, D6:220–221; and JS, Journal, 2 Sept. 1838.
JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.
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