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Introduction to State of Missouri v. Gates et al. for Treason

State of Missouri v. Gates et al. for Treason
Fifth Judicial Circuit of Missouri, 29 November 1838
Daviess Co., Missouri, Circuit Court, 11 April 1839
Boone Co., Missouri, Circuit Court, 5 August 1840
 
Historical Introduction
On or around 10 April 1839, a grand jury in , Missouri, indicted JS and forty other Latter-day Saint men, charging them with committing treason against the state of during the 1838 conflict known as the Mormon War. The conflict was rooted in opposition to Latter-day Saint settlement beyond the borders of , which the state legislature had created in 1836 primarily as a place for the Saints to settle following their expulsion from and counties earlier in the decade. In August and September 1838, confrontations between Latter-day Saints and their opponents were largely suppressed by the Missouri state militia and civil authorities. However, in October 1838 civil and militia officials declined further intervention, resulting in the expulsion of church members from in Carroll County, Missouri. Anticipating similar vigilante action at in Daviess County, Latter-day Saint men on 18 October launched targeted raids on suspected mob havens in , , and Grindstone Fork, burning buildings, confiscating property, and expelling their antagonists—and in some cases, bystanders—from their homes. Missouri governor , responding to exaggerated reports of the raids and other skirmishes, branded all Latter-day Saints “enemies” and ordered that they be “exterminated or driven from the state.” The “ringleaders of the rebellion,” including JS, were to be arrested and tried by civil authorities for crimes allegedly committed during the conflict.
In late October and early November 1838, Major General led more than three thousand state militia troops in occupying Latter-day Saint settlements in and counties. Church members were given until spring to leave the state, while JS and more than fifty other Latter-day Saint men were taken into custody under Clark’s militia authority and moved to , Missouri, for a pretrial court of inquiry. On 10 November, Clark explained to that he had “made out charges against the prisoners” based on information garnered primarily from Latter-day Saint dissidents. He identified “treason, murder, arson, burglary, robbery and larceny and perjury” as the prisoners’ offenses, all committed “under the counsel of Joseph Smith jr, the prophet.”
The founders of the left to Congress the task of defining by statute almost all crimes, but they considered treason such a heinous offense that they defined it in the Constitution itself. Recognizing that popular and partisan prejudices could give rise to broad and vague definitions of the term, the founders substantially constricted the scope of what to consider treason against the United States. As ratified, the Constitution defined treason as “consist[ing] only in levying War” against the United States, or in giving “Aid and Comfort” to the nation’s enemies. Furthermore, conviction was contingent on committing an “overt Act” of war, which had to be attested by two witnesses or confessed by the accused in open court.
In 1807, federal court decisions related to the alleged treasonous conspiracy of former vice president Aaron Burr further limited the scope of the Constitution’s treason clause in two significant ways. First, individuals could not be convicted of treason if the prosecution could only show evidence that a treasonous conspiracy existed. Rather, the government had to present sufficient evidence that an overt act of levying war—defined as “an actual assemblage of men for the purpose of executing a treasonable design”—had occurred. Second, the accused was required to have actually participated in the overt act of war and not simply in the alleged conspiracy.
In the early years of the American republic, several states adopted nearly identical provisions in their constitutions, including in 1820. This clause in the state constitution authorized Missouri officials to charge JS and his companions with having committed treason against the state of Missouri, rather than rely on federal courts to pursue the charge under the treason clause in the Constitution. The Missouri state legislature defined the minimum penalty for a treason conviction as ten years in the penitentiary; the maximum penalty was death by execution.
arranged with Judge of ’s fifth judicial circuit to preside at a criminal court of inquiry in beginning 12 November 1838. The court of inquiry was held to determine whether there was probable cause to send the case to a grand jury. Rather than first hearing sworn complaints against the prisoners and issuing warrants “reciting the accusation,” as required by Missouri law, King accepted Clark’s formulation of the charges, minus perjury, apparently without question. Circuit attorney served as the prosecutor, while , , and John R. Williams represented the fifty-three defendants in custody. During the proceedings, eleven more Latter-day Saint men were charged, bringing the total to sixty-four defendants.
Forty-two witnesses testified for the state. law required prosecution witnesses to be examined under oath by and their testimonies committed to writing under the judge’s direction. The witnesses were required to review their written testimonies and, if accurate, attach their signatures. schoolteacher Orville H. Searcy, likely with the assistance of one or more unidentified individuals, committed the testimonies to writing under King’s direction. After reviewing their written testimony, each witness signed his or her name—or an X mark—attesting to the accuracy of the transcript.
Many of the prosecution witnesses were disaffected church members, and their testimonies detailed church leaders’ alleged treasonous conspiracy to build a literal kingdom of God on the American frontier, citing apocalyptic passages in the biblical book of Daniel. The witnesses also described the Danite society, a private Latter-day Saint militia that quelled internal dissent, defended the church from external opposition, and was bound by oath to uphold the First Presidency.
The prosecution witnesses also described the raids on , , and Grindstone Fork and identified the defendants who reportedly participated in the expeditions, which the prosecution presumably cast as overt acts of assembling armed men to levy war against the state. No witness identified JS as a participant in the raids, although several described him as directing the expeditions from .
The prisoners later reported that they submitted the names of dozens of potential defense witnesses. However, only seven ultimately testified, in part because of alleged intimidation by court officials. The testimonies did little to challenge the prosecution’s case. It is possible that the defense attorneys opted to await the actual trial before mounting a strong defense, rather than reveal their strategy in the preliminary hearing.
At the conclusion of the hearing on 29 November, held that there was “probable cause to believe” that JS, , , , and were “guilty of overt acts of treason in .” King also held that there was probable cause to try for the same crime in . Judges in were not required to provide an opinion outlining their reasoning in preliminary courts of inquiry, and King did not do so. The reference to “overt acts” indicates the judge’s familiarity with the constitutional language of treason; however, it is unknown whether he had considered the Burr precedent’s delimitations on the meaning of treason. In any case, as treason was a non-bailable offence, he ordered that the prisoners be imprisoned until the next session of the Daviess County Circuit Court, scheduled for spring 1839. As neither Daviess nor Caldwell counties had yet built jails, the prisoners were committed to the in , Missouri.
From 1 December 1838 through 6 April 1839, the prisoners remained in the jail. During those months, they pursued various legal remedies to obtain their release or at least secure a more favorable venue for their trial. In late January 1839, the prisoners petitioned the Clay County court for habeas corpus, a legal writ that commanded law officers who held prisoners in custody to bring the detainees before a separate court, where they could challenge the legal basis for their imprisonment. The court granted the petition, and held a hearing to evaluate the reasons for the prisoners’ detention on 22 January 1839. , the only prisoner charged with having committed treason in , was released on bail, while JS and the other prisoners who were charged with having committed treason in were remanded to jail. On 24 January 1839, the prisoners composed a memorial to the legislature requesting a change of venue, arguing that was biased and that the inhabitants of the “upper Counties” in the fifth judicial circuit were so biased against the Saints that finding an unprejudiced jury would be impossible. In mid-March 1839, the prisoners petitioned the Missouri Supreme Court for writs of habeas corpus. The petitions were denied, presumably on the grounds that writs of habeas corpus could not be granted to petitioners ineligible for bail.
On 6 April 1839, the prisoners were removed from the jail and transported to , where the April 1839 session of the Daviess County Circuit Court was held at the home of Elisha B. Creekmore, just southeast of , the county seat. Judge of the recently formed eleventh judicial circuit presided, and James A. Clark acted as the prosecuting attorney. Sheriff William Morgan impaneled twenty county residents as a grand jury, whose duty was to review, with the assistance of Clark, evidence for the treason charge as well as other charges against JS and dozens of other Latter-day Saint men for crimes allegedly committed during the 1838 conflict.
Clark presented an indictment to the grand jury laying out the prosecution’s case. Rather than compose a text that addressed the specific allegations against the Saints, Clark adapted a 1794 English treason indictment. In the wake of the French Revolution that began in 1789, English working-class activists led by Thomas Hardy demanded universal male suffrage and annual parliaments. A 1794 indictment alleged that the activists had planned a meeting or convention intended to “subvert and alter” the government and depose the king; that they had circulated letters, pamphlets, and other written material to convince others to attend the convention and join their cause; and that they had acquired weapons in order “to levy and wage war” against the king. Although Hardy and his co-defendants were acquitted, the record of this significant case, including the indictment, was published the same year, and the indictment subsequently appeared in popular legal manuals.
When adapting the English indictment for JS and his co-defendants, Clark replaced references to “subjects” with “citizens” and the “king” with the “state of ”; the “rule of law” was invoked rather than the betrayed sovereign. Clark’s reasons for utilizing the eighteenth-century text are unknown. In the initial draft of the indictment, Clark did not list the names of defendants, instead creating a manuscript form with blank spaces that could be filled in later. At some point, he inscribed the names of forty-one Latter-day Saints, including JS, on a separate sheet of paper, which he then attached with adhesive wafers to the first page of the indictment. On the indictment’s wrapper, Clark identified fifteen witnesses upon whom he based the information in the indictment. The witnesses were expected to be available for examination by the grand jury; it is unknown if all fifteen witnesses were examined. Around 10 April, when the grand jury hearing concluded, Robert P. Peniston Sr., foreman of the grand jury, wrote “true bill” on the document, indicating that at least twelve of the grand jurors approved the indictment.
The grand jury submitted the indictment to the circuit court on 11 April 1839. Of the forty-one defendants named in the treason indictment, only five—JS, , , , and —were present in the circuit court on 11 April, because the remaining defendants had already departed in forced compliance with ’s expulsion order. Citing his previous service as the prosecuting attorney in the case, issued an order that changed the venue of the treason case for JS and his fellow prisoners to in the second judicial circuit. The prisoners, along with Sheriff William Morgan and four guards, left on 12 April 1839. While en route to Boone County, the prisoners escaped on 16 April with the guards’ complicity.
Notwithstanding the escape, in the ensuing months Circuit Court clerk made certified copies of the indictment and the other records in his docket for the treason case and forwarded them to the Circuit Court, thereby officially transferring jurisdiction. However, perhaps due to the escape of the prisoners, Wilson was evidently uncertain as to whether Daviess County maintained jurisdiction in the case. On 30 May 1839, after he had already sent the certified copy of the indictment to Boone County, Wilson issued a capias ordering the Daviess County sheriff to arrest JS and the other defendants named in the indictment. On motion of the prosecuting attorney, the case was continued on the Daviess County Circuit Court docket during the August 1839 term, but only for the defendants who were not named in the change of venue. When it became apparent that the defendants were not going to appear, the case was dismissed at the December 1839 term. In contrast, Roger N. Todd, clerk of the Boone County Circuit Court, included all defendants identified in the indictment in his docket entries pertaining to the treason case, regardless of whether they were specifically named in the change of venue order. On motion of the prosecuting attorney, the treason case was continued on the Boone County court’s docket until the August 1840 term. During that term, as it was apparent that the defendants were not going to appear for the trial, judge John D. Leland ordered that the case be dismissed.
 
Calendar of Documents
State of Missouri v. Gates et al. for Treason, Fifth Judicial Circuit of Missouri
 
10 November 1838 Henry Jacobs, Subpoena, to Ray Co. Sheriff, for John Whitmer and Others, Ray Co., MO
10 Nov. 1838; private possession; handwriting of Henry Jacobs; docket in unidentified handwriting; notations in handwriting of B. J. Brown.
 
11 November 1838 Henry Jacobs, Subpoena, to Ray Co. Sheriff, for Porter Yale and Stephen Yale, Ray Co., MO
11 Nov. 1838; private possession; photocopy in Daviess County Legal Documents, BYU; printed form with manuscript additions in handwriting of Henry Jacobs; docket in handwriting of Henry Jacobs; docket in unidentified handwriting; notations in handwriting of B. J. Brown.
 
15 November 1838 Austin A. King, Subpoena, for Henry Wood and Others, Ray Co., MO
15 Nov. 1838; private possession; photocopy in Daviess County Legal Documents, BYU; handwriting of two unidentified scribes; signature of Austin A. King; docket in unidentified handwriting; notations in handwriting of B. J. Brown.
 
21 November 1838 Austin A. King, Subpoena, for James Blakely and Others, Ray Co., MO
21 Nov. 1838; CHL; handwriting of Austin A. King; docket in unidentified handwriting; notations in handwriting of B. J. Brown.
 
24 November 1838 Austin A. King, Order of Discharge, Richmond, Ray Co., MO
24 Nov. 1838; JS Collection, CHL; handwriting of Austin A. King; docket in handwriting of Austin A. King.
 
12–29 November 1838 Minutes and Testimonies, Richmond, Ray Co., MO
12–29 Nov. 1838; Eugene Morrow Violette Collection, State Historical Society of Missouri, Columbia; unidentified handwriting.
Ca. Late 1838–ca. Early 1839; Mormons Collection, 1813–1970, Missouri History Museum; unidentified handwriting.
Ca. Late 1838–ca. Early 1839; Mormon War Papers, MSA; unidentified handwriting.
 
29 November 1838 Austin A. King, Ruling, Richmond, Ray Co., MO
29 Nov. 1838; in Minutes and Testimonies, [123]–[126], Eugene Morrow Violette Collection, State Historical Society of Missouri, Columbia; unidentified handwriting.
 
29 November 1838 Austin A. King, Mittimus, to Clay Co. Jailer, Richmond, Ray Co., MO
29 Nov. 1838. Not extant.
Ca. late Mar. 1839; handwriting of Samuel Tillery. Not extant.
Ca. May 1839; JS Collection, CHL; handwriting of Levi Richards.
Between 29 May and 30 Oct. 1839; JS Letterbook 2, p. 20; handwriting of James Mulholland.
 
Ca. 22 January 1839 Writ of Habeas Corpus, Clay Co., MO
Ca. 22 Jan. 1839. Not extant.
 
30 January 1839 Recognizance, Sidney Rigdon, Clay Co., MO
30 Jan. 1839. Not extant.
 
State of Missouri v. Gates et al. for Treason, Daviess Co., Missouri, Circuit Court
 
Ca. 10 April 1839 Indictment, Honey Creek Township, Daviess Co., MO
Ca. 10 Apr. 1839; partial manuscript in Historical Department, Nineteenth-Century Legal Documents Collection, CHL; complete photocopy in Max H. Parkin, Collected Missouri Court Documents, CHL; handwriting of James A. Clark; docket and notations in handwriting of James A. Clark with probable signature of Robert P. Peniston Sr.
20 Apr. 1839; original destroyed; photocopy at State Historical Society of Missouri, Columbia; handwriting of Robert Wilson; docket and notations in handwriting of Robert Wilson; notation in handwriting of Roger N. Todd.
 
11 April 1839 Docket Entry, Indictment, Honey Creek Township, Daviess Co., MO
11 Apr. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, p. 58, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
26 June 1839; in “Copy of Record,” 2, 11, original destroyed; photocopy at State Historical Society of Missouri, Columbia; handwriting of Robert Wilson.
 
11 April 1839 Docket Entry, Motion for Bail, Honey Creek Township, Daviess Co., MO
11 Apr. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, p. 66, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
26 June 1839; in “Copy of Record,” 3, 11, original destroyed; photocopy at State Historical Society of Missouri, Columbia; handwriting of Robert Wilson.
 
11 April 1839 Docket Entry, Removal Orders, Honey Creek Township, Daviess Co., MO
11 Apr. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, pp. 66–67, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
26 June 1839; in “Copy of Record,” 4, 11, original destroyed; photocopy at State Historical Society of Missouri, Columbia; handwriting of Robert Wilson.
 
11 April 1839 Docket Entry, Recognizance, Honey Creek Township, Daviess Co., MO
11 Apr. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, pp. 70–71, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
 
11 April 1839 Order of Commitment, [Honey Creek Township, Daviess Co., MO]
11 Apr. 1839. Not extant.
Ca. 1 July 1839; William Morgan Papers, CHL; unidentified handwriting.
 
30 May 1839 Writ of Capias, Honey Creek Township, Daviess Co., MO
30 May 1839. Not extant.
 
14 August 1839 Docket Entry, Continuance, Honey Creek Township, Daviess Co., MO
14 Aug. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, p. 129, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
 
10 December 1839 Docket Entry, Nolle Prosequi, Honey Creek Township, Daviess Co., MO
10 Dec. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, pp. 151–152, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
 
15 April 1840 Docket Entry, Costs, Honey Creek Township, Daviess Co., MO
15 Apr. 1840; Daviess County Circuit Court Record, vol. A, 1837–1843, pp. 211–212, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
 
17 December 1840 Docket Entry, Costs, Honey Creek Township, Daviess Co., MO
17 Dec. 1840; Daviess County Circuit Court Record, vol. A, 1837–1843, p. 250, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
 
State of Missouri v. Gates et al. for Treason, Boone Co., Missouri, Circuit Court
 
17 August 1839 Docket Entry, Continuance, Columbia, Boone Co., MO
17 Aug. 1839; Boone County Circuit Court Record, vol. C, p. 262, Boone County Courthouse, Columbia, MO; photocopy at BYU; handwriting of Roger N. Todd.
 
4 November 1839 Docket Entry, Continuance, Columbia, Boone Co., MO
4 Nov. 1839; Boone County Circuit Court Record, vol. C, p. 281, Boone County Courthouse, Columbia, MO; photocopy at BYU; handwriting of Roger N. Todd.
 
5 August 1840 Docket Entry, Nolle Prosequi, Columbia, Boone Co., MO
5 Aug. 1840; Boone County Circuit Court Record, vol. C, p. 317, Boone County Courthouse, Columbia, MO; photocopy at BYU; handwriting of Roger N. Todd.
 
Documents Related to State of Missouri v. Gates et al. for Treason
 
Ca. 20 January 1839 Memorial to the Missouri Legislature, Liberty, Clay Co., MO
Ca. 20 Jan. 1839. Not extant.
 
24 January 1839 Memorial to the Missouri Legislature, Liberty, Clay Co., MO
24 Jan. 1839. Not extant.
Between 27 June and 30 Oct. 1839; JS Letterbook 2, pp. 66–67; handwriting of James Mulholland.
 
Ca. 25 January 1839 Amasa Lyman, Affidavit, Clay Co., MO
Ca. 25 Jan. 1839; JS Collection, CHL; unidentified handwriting.
 
Between 9 and 15 March 1839 Alanson Ripley and Others, Petition, Liberty, Clay Co., MO, to George O. Tompkins, Jefferson City, Cole Co., MO
Between 9 and 15 Mar. 1839; JS Collection, CHL; handwriting of Alexander McRae, with insertions by Elias Smith and JS; signatures of Alanson Ripley, Heber C. Kimball, William D. Huntington, Joseph B. Noble, and JS; certification in handwriting of Abraham Shafer, with additional signatures of Alanson Ripley, Heber C. Kimball, William D. Huntington, Joseph B. Noble (now missing), and JS (now missing); attestation in handwriting of Elias Smith, with additional signatures of Amasa Lyman, Henry G. Sherwood, James Newberry, Cyrus Daniels, and Erastus Snow.
Between late Apr. and early June 1839; JS Collection; handwriting of James Sloan.
Between 29 May and 30 Oct. 1839; JS Letterbook 2, pp. 21–24; handwriting of James Mulholland.
 
1841 Document Containing the Correspondence, Orders, &c., in Relation to the Disturbances with the Mormons; and the Evidence Given before the Hon. Austin A. King, Judge of the Fifth Judicial Circuit of the State of Missouri, at the Court-House in Richmond, in a Criminal Court of Inquiry, Begun November 12, 1838, on the Trial of Joseph Smith, Jr., and Others, for High Treason and Other Crimes against the State, Fayette, Howard Co., MO
1841; Boon’s Lick Democrat, 1841.
 
1841 Document Showing the Testimony Given before the Judge of the Fifth Judicial Circuit of the State of Missouri, on the Trial of Joseph Smith Jr., and Others, for High Treason, and Other Crimes against That State, Washington DC
1841; Blair, 1841.
State of Missouri v. Gates et al. for Treason
Fifth Judicial Circuit of Missouri, 29 November 1838
Daviess Co., Missouri, Circuit Court, 11 April 1839
Boone Co., Missouri, Circuit Court, 5 August 1840
 
Historical Introduction
On or around 10 April 1839, a grand jury in , Missouri, indicted JS and forty other Latter-day Saint men, charging them with committing treason against the state of during the 1838 conflict known as the Mormon War. The conflict was rooted in opposition to Latter-day Saint settlement beyond the borders of , which the state legislature had created in 1836 primarily as a place for the Saints to settle following their expulsion from and counties earlier in the decade. In August and September 1838, confrontations between Latter-day Saints and their opponents were largely suppressed by the Missouri state militia and civil authorities. However, in October 1838 civil and militia officials declined further intervention, resulting in the expulsion of church members from in Carroll County, Missouri. Anticipating similar vigilante action at in Daviess County, Latter-day Saint men on 18 October launched targeted raids on suspected mob havens in , , and Grindstone Fork, burning buildings, confiscating property, and expelling their antagonists—and in some cases, bystanders—from their homes. Missouri governor , responding to exaggerated reports of the raids and other skirmishes, branded all Latter-day Saints “enemies” and ordered that they be “exterminated or driven from the state.” The “ringleaders of the rebellion,” including JS, were to be arrested and tried by civil authorities for crimes allegedly committed during the conflict.
In late October and early November 1838, Major General led more than three thousand state militia troops in occupying Latter-day Saint settlements in and counties. Church members were given until spring to leave the state, while JS and more than fifty other Latter-day Saint men were taken into custody under Clark’s militia authority and moved to , Missouri, for a pretrial court of inquiry. On 10 November, Clark explained to that he had “made out charges against the prisoners” based on information garnered primarily from Latter-day Saint dissidents. He identified “treason, murder, arson, burglary, robbery and larceny and perjury” as the prisoners’ offenses, all committed “under the counsel of Joseph Smith jr, the prophet.”
The founders of the left to Congress the task of defining by statute almost all crimes, but they considered treason such a heinous offense that they defined it in the Constitution itself. Recognizing that popular and partisan prejudices could give rise to broad and vague definitions of the term, the founders substantially constricted the scope of what to consider treason against the United States. As ratified, the Constitution defined treason as “consist[ing] only in levying War” against the United States, or in giving “Aid and Comfort” to the nation’s enemies. Furthermore, conviction was contingent on committing an “overt Act” of war, which had to be attested by two witnesses or confessed by the accused in open court.
In 1807, federal court decisions related to the alleged treasonous conspiracy of former vice president Aaron Burr further limited the scope of the Constitution’s treason clause in two significant ways. First, individuals could not be convicted of treason if the prosecution could only show evidence that a treasonous conspiracy existed. Rather, the government had to present sufficient evidence that an overt act of levying war—defined as “an actual assemblage of men for the purpose of executing a treasonable design”—had occurred. Second, the accused was required to have actually participated in the overt act of war and not simply in the alleged conspiracy.
In the early years of the American republic, several states adopted nearly identical provisions in their constitutions, including in 1820. This clause in the state constitution authorized Missouri officials to charge JS and his companions with having committed treason against the state of Missouri, rather than rely on federal courts to pursue the charge under the treason clause in the Constitution. The Missouri state legislature defined the minimum penalty for a treason conviction as ten years in the penitentiary; the maximum penalty was death by execution.
arranged with Judge of ’s fifth judicial circuit to preside at a criminal court of inquiry in beginning 12 November 1838. The court of inquiry was held to determine whether there was probable cause to send the case to a grand jury. Rather than first hearing sworn complaints against the prisoners and issuing warrants “reciting the accusation,” as required by Missouri law, King accepted Clark’s formulation of the charges, minus perjury, apparently without question. Circuit attorney served as the prosecutor, while , , and John R. Williams represented the fifty-three defendants in custody. During the proceedings, eleven more Latter-day Saint men were charged, bringing the total to sixty-four defendants.
Forty-two witnesses testified for the state. law required prosecution witnesses to be examined under oath by and their testimonies committed to writing under the judge’s direction. The witnesses were required to review their written testimonies and, if accurate, attach their signatures. schoolteacher Orville H. Searcy, likely with the assistance of one or more unidentified individuals, committed the testimonies to writing under King’s direction. After reviewing their written testimony, each witness signed his or her name—or an X mark—attesting to the accuracy of the transcript.
Many of the prosecution witnesses were disaffected church members, and their testimonies detailed church leaders’ alleged treasonous conspiracy to build a literal kingdom of God on the American frontier, citing apocalyptic passages in the biblical book of Daniel. The witnesses also described the Danite society, a private Latter-day Saint militia that quelled internal dissent, defended the church from external opposition, and was bound by oath to uphold the First Presidency.
The prosecution witnesses also described the raids on , , and Grindstone Fork and identified the defendants who reportedly participated in the expeditions, which the prosecution presumably cast as overt acts of assembling armed men to levy war against the state. No witness identified JS as a participant in the raids, although several described him as directing the expeditions from .
The prisoners later reported that they submitted the names of dozens of potential defense witnesses. However, only seven ultimately testified, in part because of alleged intimidation by court officials. The testimonies did little to challenge the prosecution’s case. It is possible that the defense attorneys opted to await the actual trial before mounting a strong defense, rather than reveal their strategy in the preliminary hearing.
At the conclusion of the hearing on 29 November, held that there was “probable cause to believe” that JS, , , , and were “guilty of overt acts of treason in .” King also held that there was probable cause to try for the same crime in . Judges in were not required to provide an opinion outlining their reasoning in preliminary courts of inquiry, and King did not do so. The reference to “overt acts” indicates the judge’s familiarity with the constitutional language of treason; however, it is unknown whether he had considered the Burr precedent’s delimitations on the meaning of treason. In any case, as treason was a non-bailable offence, he ordered that the prisoners be imprisoned until the next session of the Daviess County Circuit Court, scheduled for spring 1839. As neither Daviess nor Caldwell counties had yet built jails, the prisoners were committed to the in , Missouri.
From 1 December 1838 through 6 April 1839, the prisoners remained in the jail. During those months, they pursued various legal remedies to obtain their release or at least secure a more favorable venue for their trial. In late January 1839, the prisoners petitioned the Clay County court for habeas corpus, a legal writ that commanded law officers who held prisoners in custody to bring the detainees before a separate court, where they could challenge the legal basis for their imprisonment. The court granted the petition, and held a hearing to evaluate the reasons for the prisoners’ detention on 22 January 1839. , the only prisoner charged with having committed treason in , was released on bail, while JS and the other prisoners who were charged with having committed treason in were remanded to jail. On 24 January 1839, the prisoners composed a memorial to the legislature requesting a change of venue, arguing that was biased and that the inhabitants of the “upper Counties” in the fifth judicial circuit were so biased against the Saints that finding an unprejudiced jury would be impossible. In mid-March 1839, the prisoners petitioned the Missouri Supreme Court for writs of habeas corpus. The petitions were denied, presumably on the grounds that writs of habeas corpus could not be granted to petitioners ineligible for bail.
On 6 April 1839, the prisoners were removed from the jail and transported to , where the April 1839 session of the Daviess County Circuit Court was held at the home of Elisha B. Creekmore, just southeast of , the county seat. Judge of the recently formed eleventh judicial circuit presided, and James A. Clark acted as the prosecuting attorney. Sheriff William Morgan impaneled twenty county residents as a grand jury, whose duty was to review, with the assistance of Clark, evidence for the treason charge as well as other charges against JS and dozens of other Latter-day Saint men for crimes allegedly committed during the 1838 conflict.
Clark presented an indictment to the grand jury laying out the prosecution’s case. Rather than compose a text that addressed the specific allegations against the Saints, Clark adapted a 1794 English treason indictment. In the wake of the French Revolution that began in 1789, English working-class activists led by Thomas Hardy demanded universal male suffrage and annual parliaments. A 1794 indictment alleged that the activists had planned a meeting or convention intended to “subvert and alter” the government and depose the king; that they had circulated letters, pamphlets, and other written material to convince others to attend the convention and join their cause; and that they had acquired weapons in order “to levy and wage war” against the king. Although Hardy and his co-defendants were acquitted, the record of this significant case, including the indictment, was published the same year, and the indictment subsequently appeared in popular legal manuals.
When adapting the English indictment for JS and his co-defendants, Clark replaced references to “subjects” with “citizens” and the “king” with the “state of ”; the “rule of law” was invoked rather than the betrayed sovereign. Clark’s reasons for utilizing the eighteenth-century text are unknown. In the initial draft of the indictment, Clark did not list the names of defendants, instead creating a manuscript form with blank spaces that could be filled in later. At some point, he inscribed the names of forty-one Latter-day Saints, including JS, on a separate sheet of paper, which he then attached with adhesive wafers to the first page of the indictment. On the indictment’s wrapper, Clark identified fifteen witnesses upon whom he based the information in the indictment. The witnesses were expected to be available for examination by the grand jury; it is unknown if all fifteen witnesses were examined. Around 10 April, when the grand jury hearing concluded, Robert P. Peniston Sr., foreman of the grand jury, wrote “true bill” on the document, indicating that at least twelve of the grand jurors approved the indictment.
The grand jury submitted the indictment to the circuit court on 11 April 1839. Of the forty-one defendants named in the treason indictment, only five—JS, , , , and —were present in the circuit court on 11 April, because the remaining defendants had already departed in forced compliance with ’s expulsion order. Citing his previous service as the prosecuting attorney in the case, issued an order that changed the venue of the treason case for JS and his fellow prisoners to in the second judicial circuit. The prisoners, along with Sheriff William Morgan and four guards, left on 12 April 1839. While en route to Boone County, the prisoners escaped on 16 April with the guards’ complicity.
Notwithstanding the escape, in the ensuing months Circuit Court clerk made certified copies of the indictment and the other records in his docket for the treason case and forwarded them to the Circuit Court, thereby officially transferring jurisdiction. However, perhaps due to the escape of the prisoners, Wilson was evidently uncertain as to whether Daviess County maintained jurisdiction in the case. On 30 May 1839, after he had already sent the certified copy of the indictment to Boone County, Wilson issued a capias ordering the Daviess County sheriff to arrest JS and the other defendants named in the indictment. On motion of the prosecuting attorney, the case was continued on the Daviess County Circuit Court docket during the August 1839 term, but only for the defendants who were not named in the change of venue. When it became apparent that the defendants were not going to appear, the case was dismissed at the December 1839 term. In contrast, Roger N. Todd, clerk of the Boone County Circuit Court, included all defendants identified in the indictment in his docket entries pertaining to the treason case, regardless of whether they were specifically named in the change of venue order. On motion of the prosecuting attorney, the treason case was continued on the Boone County court’s docket until the August 1840 term. During that term, as it was apparent that the defendants were not going to appear for the trial, judge John D. Leland ordered that the case be dismissed.
 
Calendar of Documents
State of Missouri v. Gates et al. for Treason, Fifth Judicial Circuit of Missouri
 
10 November 1838 Henry Jacobs, Subpoena, to Ray Co. Sheriff, for John Whitmer and Others, Ray Co., MO
10 Nov. 1838; private possession; handwriting of Henry Jacobs; docket in unidentified handwriting; notations in handwriting of B. J. Brown.
 
11 November 1838 Henry Jacobs, Subpoena, to Ray Co. Sheriff, for Porter Yale and Stephen Yale, Ray Co., MO
11 Nov. 1838; private possession; photocopy in Daviess County Legal Documents, BYU; printed form with manuscript additions in handwriting of Henry Jacobs; docket in handwriting of Henry Jacobs; docket in unidentified handwriting; notations in handwriting of B. J. Brown.
 
15 November 1838 Austin A. King, Subpoena, for Henry Wood and Others, Ray Co., MO
15 Nov. 1838; private possession; photocopy in Daviess County Legal Documents, BYU; handwriting of two unidentified scribes; signature of Austin A. King; docket in unidentified handwriting; notations in handwriting of B. J. Brown.
 
21 November 1838 Austin A. King, Subpoena, for James Blakely and Others, Ray Co., MO
21 Nov. 1838; CHL; handwriting of Austin A. King; docket in unidentified handwriting; notations in handwriting of B. J. Brown.
 
24 November 1838 Austin A. King, Order of Discharge, Richmond, Ray Co., MO
24 Nov. 1838; JS Collection, CHL; handwriting of Austin A. King; docket in handwriting of Austin A. King.
 
12–29 November 1838 Minutes and Testimonies, Richmond, Ray Co., MO
12–29 Nov. 1838; Eugene Morrow Violette Collection, State Historical Society of Missouri, Columbia; unidentified handwriting.
Ca. Late 1838–ca. Early 1839; Mormons Collection, 1813–1970, Missouri History Museum; unidentified handwriting.
Ca. Late 1838–ca. Early 1839; Mormon War Papers, MSA; unidentified handwriting.
 
29 November 1838 Austin A. King, Ruling, Richmond, Ray Co., MO
29 Nov. 1838; in Minutes and Testimonies, [123]–[126], Eugene Morrow Violette Collection, State Historical Society of Missouri, Columbia; unidentified handwriting.
 
29 November 1838 Austin A. King, Mittimus, to Clay Co. Jailer, Richmond, Ray Co., MO
29 Nov. 1838. Not extant.
Ca. late Mar. 1839; handwriting of Samuel Tillery. Not extant.
Ca. May 1839; JS Collection, CHL; handwriting of Levi Richards.
Between 29 May and 30 Oct. 1839; JS Letterbook 2, p. 20; handwriting of James Mulholland.
 
Ca. 22 January 1839 Writ of Habeas Corpus, Clay Co., MO
Ca. 22 Jan. 1839. Not extant.
 
30 January 1839 Recognizance, Sidney Rigdon, Clay Co., MO
30 Jan. 1839. Not extant.
 
State of Missouri v. Gates et al. for Treason, Daviess Co., Missouri, Circuit Court
 
Ca. 10 April 1839 Indictment, Honey Creek Township, Daviess Co., MO
Ca. 10 Apr. 1839; partial manuscript in Historical Department, Nineteenth-Century Legal Documents Collection, CHL; complete photocopy in Max H. Parkin, Collected Missouri Court Documents, CHL; handwriting of James A. Clark; docket and notations in handwriting of James A. Clark with probable signature of Robert P. Peniston Sr.
20 Apr. 1839; original destroyed; photocopy at State Historical Society of Missouri, Columbia; handwriting of Robert Wilson; docket and notations in handwriting of Robert Wilson; notation in handwriting of Roger N. Todd.
 
11 April 1839 Docket Entry, Indictment, Honey Creek Township, Daviess Co., MO
11 Apr. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, p. 58, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
26 June 1839; in “Copy of Record,” 2, 11, original destroyed; photocopy at State Historical Society of Missouri, Columbia; handwriting of Robert Wilson.
 
11 April 1839 Docket Entry, Motion for Bail, Honey Creek Township, Daviess Co., MO
11 Apr. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, p. 66, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
26 June 1839; in “Copy of Record,” 3, 11, original destroyed; photocopy at State Historical Society of Missouri, Columbia; handwriting of Robert Wilson.
 
11 April 1839 Docket Entry, Removal Orders, Honey Creek Township, Daviess Co., MO
11 Apr. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, pp. 66–67, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
26 June 1839; in “Copy of Record,” 4, 11, original destroyed; photocopy at State Historical Society of Missouri, Columbia; handwriting of Robert Wilson.
 
11 April 1839 Docket Entry, Recognizance, Honey Creek Township, Daviess Co., MO
11 Apr. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, pp. 70–71, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
 
11 April 1839 Order of Commitment, [Honey Creek Township, Daviess Co., MO]
11 Apr. 1839. Not extant.
Ca. 1 July 1839; William Morgan Papers, CHL; unidentified handwriting.
 
30 May 1839 Writ of Capias, Honey Creek Township, Daviess Co., MO
30 May 1839. Not extant.
 
14 August 1839 Docket Entry, Continuance, Honey Creek Township, Daviess Co., MO
14 Aug. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, p. 129, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
 
10 December 1839 Docket Entry, Nolle Prosequi, Honey Creek Township, Daviess Co., MO
10 Dec. 1839; Daviess County Circuit Court Record, vol. A, 1837–1843, pp. 151–152, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
 
15 April 1840 Docket Entry, Costs, Honey Creek Township, Daviess Co., MO
15 Apr. 1840; Daviess County Circuit Court Record, vol. A, 1837–1843, pp. 211–212, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
 
17 December 1840 Docket Entry, Costs, Honey Creek Township, Daviess Co., MO
17 Dec. 1840; Daviess County Circuit Court Record, vol. A, 1837–1843, p. 250, Daviess County Courthouse, Gallatin, MO; handwriting of Robert Wilson.
 
State of Missouri v. Gates et al. for Treason, Boone Co., Missouri, Circuit Court
 
17 August 1839 Docket Entry, Continuance, Columbia, Boone Co., MO
17 Aug. 1839; Boone County Circuit Court Record, vol. C, p. 262, Boone County Courthouse, Columbia, MO; photocopy at BYU; handwriting of Roger N. Todd.
 
4 November 1839 Docket Entry, Continuance, Columbia, Boone Co., MO
4 Nov. 1839; Boone County Circuit Court Record, vol. C, p. 281, Boone County Courthouse, Columbia, MO; photocopy at BYU; handwriting of Roger N. Todd.
 
5 August 1840 Docket Entry, Nolle Prosequi, Columbia, Boone Co., MO
5 Aug. 1840; Boone County Circuit Court Record, vol. C, p. 317, Boone County Courthouse, Columbia, MO; photocopy at BYU; handwriting of Roger N. Todd.
 
Documents Related to State of Missouri v. Gates et al. for Treason
 
Ca. 20 January 1839 Memorial to the Missouri Legislature, Liberty, Clay Co., MO
Ca. 20 Jan. 1839. Not extant.
 
24 January 1839 Memorial to the Missouri Legislature, Liberty, Clay Co., MO
24 Jan. 1839. Not extant.
Between 27 June and 30 Oct. 1839; JS Letterbook 2, pp. 66–67; handwriting of James Mulholland.
 
Ca. 25 January 1839 Amasa Lyman, Affidavit, Clay Co., MO
Ca. 25 Jan. 1839; JS Collection, CHL; unidentified handwriting.
 
Between 9 and 15 March 1839 Alanson Ripley and Others, Petition, Liberty, Clay Co., MO, to George O. Tompkins, Jefferson City, Cole Co., MO
Between 9 and 15 Mar. 1839; JS Collection, CHL; handwriting of Alexander McRae, with insertions by Elias Smith and JS; signatures of Alanson Ripley, Heber C. Kimball, William D. Huntington, Joseph B. Noble, and JS; certification in handwriting of Abraham Shafer, with additional signatures of Alanson Ripley, Heber C. Kimball, William D. Huntington, Joseph B. Noble (now missing), and JS (now missing); attestation in handwriting of Elias Smith, with additional signatures of Amasa Lyman, Henry G. Sherwood, James Newberry, Cyrus Daniels, and Erastus Snow.
Between late Apr. and early June 1839; JS Collection; handwriting of James Sloan.
Between 29 May and 30 Oct. 1839; JS Letterbook 2, pp. 21–24; handwriting of James Mulholland.
 
1841 Document Containing the Correspondence, Orders, &c., in Relation to the Disturbances with the Mormons; and the Evidence Given before the Hon. Austin A. King, Judge of the Fifth Judicial Circuit of the State of Missouri, at the Court-House in Richmond, in a Criminal Court of Inquiry, Begun November 12, 1838, on the Trial of Joseph Smith, Jr., and Others, for High Treason and Other Crimes against the State, Fayette, Howard Co., MO
1841; Boon’s Lick Democrat, 1841.
 
1841 Document Showing the Testimony Given before the Judge of the Fifth Judicial Circuit of the State of Missouri, on the Trial of Joseph Smith Jr., and Others, for High Treason, and Other Crimes against That State, Washington DC
1841; Blair, 1841.