Petition to George O. Tompkins, between 9 and 15 March 1839 [State of Missouri v. Gates et al. for Treason]
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Source Note
, , , , and JS, Petition, , Clay Co., MO, to , [, Cole Co., MO], between 9 and 15 Mar. 1839; handwriting of , with insertions by and JS; signatures of , , , , and JS; certified by Abraham Shafer, with additional signatures of , , , (now missing), and JS (now missing); attestation [probably , Caldwell Co., MO] by , with additional signatures of , , , , and ; seven pages; JS Collection, CHL. Includes dockets.Two bifolia measuring 12⅛ × 7½ inches (31 × 19 cm). inscribed the petition on the first bifolium and the first leaf of the second bifolium. Justice of the Peace Abraham Shafer then wrote a certification on the verso of the first leaf of the second bifolium. The petition was folded for carrying, and Alexander McRae docketed it. then inscribed the attestation on the recto of the second leaf of the second bifolium, probably in , Missouri. The second bifolium was then refolded and docketed again in unidentified handwriting. Subsequently, JS’s signature on the verso of the first leaf of the second bifolium was removed and ’s signature was partially removed. The two leaves of the second bifolium became separated at a later time. The document has marked brittleness and separation at the folds.The petition was carried to , Missouri, twice—in late March and early April 1839—by Latter-day Saints intent on submitting the petition to the Supreme Court. Both times, the court rejected the petition, and the lack of official filing notations suggests that the court never assumed custody of the document. The petition was then apparently taken to , where it likely served as the source text for two copies of the petition made by church members in Illinois in 1839. The document evidently left the church’s possession soon thereafter. Wilford Wood, a collector of manuscripts and artifacts related to the LDS church, acquired the petition in the mid-twentieth century and subsequently donated it to the Church Historian’s Office.
Footnotes
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1
James Sloan copied the featured version of the petition sometime between late April 1839 (when the petition likely arrived in Illinois from Missouri) and early June 1839. Sloan’s copy was apparently included in a package of documents that John P. Greene took with him when he left Quincy, Illinois, on 5 June 1839 with an assignment to collect donations for Latter-day Saint refugees. Greene published the documents—including Sloan’s copy of the petition—later that month in Cincinnati, Ohio.a Additionally, James Mulholland copied the featured version into JS Letterbook 2 sometime between 29 May and 30 October 1839.b
(aJS et al., Petition, Liberty, MO, between 9 and 15 Mar. 1839, copy, JS Collection, CHL; Historical Introduction to Letter from John P. Greene, 30 June 1839; Greene, Facts relative to the Expulsion, 31–33. bJS et al., Petition, Liberty, MO, ca. 15 Mar. 1839, in JS Letterbook 2, pp. 21–24.)Smith, Joseph. Collection, 1827–1846. CHL. MS 155.
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.
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2
A typescript note in the document’s file in the Joseph Smith Collection states the document came from Wood. In 1937 he purchased from Charles Bidamon (Emma Smith’s stepson) several historically significant documents, including two petitions that had belonged to JS. The church later purchased some of the Bidamon documents from Wood, possibly including the petition featured here. (Wilford C. Wood, Statement, Wilmette, IL, 10 July 1937, reel 16, fd. 7-J-b-2; David O. McKay to Arthur Winter, 21 July 1937, reel 16, fd. 7-J-b-2, Wilford C. Wood Collection of Church Historical Materials, CHL; see also “Documents Obtained by Wilford Wood,” Deseret News, 21 July 1937, 13.)
Wilford C. Wood Collection of Church Historical Materials. Microfilm. CHL. MS 8617.
Deseret News. Salt Lake City. 1850–.
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Historical Introduction
In mid-March 1839, JS and his fellow prisoners sought release from the in , Missouri, by petitioning the Supreme Court for writs of , a common law writ. When a writ of habeas corpus is issued, the officer (usually a sheriff or jailer) who has custody of the prisoner must bring the prisoner before the court, with the judge examining whether the incarceration is legal.In January 1839, the prisoners petitioned Justice of the court for a writ of habeas corpus, resulting in a hearing on 22 January. For unclear reasons, Turnham released on bail on 30 January 1839; the justice remanded the remaining prisoners to the Clay County . Subsequently, the prisoners tried to escape. In early February, attempted to flee the jail when the door was left open, but he was quickly recaptured. In early March, the prisoners tried to dig through the dungeon walls, but when they sought outside help, the plot was discovered.Following the failed attempt to escape in March 1839, the prisoners opted to again pursue a writ of habeas corpus. On 9 March, wrote a petition to Judge , but the prisoners apparently did not submit the petition. Rather, they decided to write individual petitions directed to the Supreme Court in mid-March 1839. Since JS’s petition is undated, it is uncertain when it was written. Many of the document’s arguments were first articulated in Hyrum Smith’s 9 March petition, suggesting that JS started his petition on that date or soon after. JS’s petition was completed by 15 March at the latest, when justice of the peace Abraham Shafer certified it., one of the prisoners, served as scribe for the version featured here, which contains errors normally associated with copying, suggesting that he worked from an earlier draft. JS’s petition is written in the first-person plural, with JS and four other Latter-day Saints cosigning the document. JS perhaps believed that including the signatures of multiple individuals swearing to the truth of the facts in the petition would strengthen his arguments. At the beginning of the featured version, McRae named , , Daniel Shearer, , and as the petition’s cosigners, apparently expecting these men would visit the jail to sign the petition. However, when Ripley, Kimball, and Huntington, along with , visited the jail on 15 March, they were not accompanied by Shearer and Salisbury. Therefore, Shearer’s and Salisbury’s names were crossed out, and Noble’s name was added. Whether Ripley, Kimball, Huntington, and Noble contributed anything to JS’s petition, other than their signatures, is unknown.The prisoners apparently received little or no assistance from their attorneys in preparing this and other March petitions, relying instead on the habeas corpus statute as a guide. As required by the statute, JS’s petition identifies JS as the person unlawfully imprisoned, the Missouri Supreme Court as the court to grant the writ, as the judge who incarcerated the petitioner, and the as the location of imprisonment. The petition also includes facts concerning the imprisonment, claims of procedural irregularities that occurred during the November 1838 hearing, and substantive reasons that JS should not be charged with treason.Once completed the version featured here, JS made minor changes to the text, mostly restoring words that McRae inadvertently omitted as he copied. Then , , , , and JS signed the document, after which Justice Shafer certified the petition. Shafer probably visited the to certify the document since the prisoners were likely not permitted to leave the jail given their recent escape attempts. Following the certification, Ripley, Kimball, Huntington, Noble, and JS signed the document again. Ripley then carried JS’s petition to , where it was read by the church committee charged with overseeing the Saints’ departure from the state. Committee member drafted an attestation—a statement affirming the truth of the facts given—which he then signed along with , , , , and . Perhaps at this time, Elias Smith corrected the cosigners’ names on the recto of the first leaf, canceling Shearer’s and ’s names and adding Noble’s and JS’s names.On 18 March, the removal committee appointed and to take the prisoners’ petitions to the Supreme Court in . Attorney evidently gave Kimball and Turley a letter of introduction, but sheriff and jailer Samuel Hadley apparently refused to give them a copy of the —’s incarceration order from 29 November 1838—which, according to law, had to accompany petitions for writs of habeas corpus. The supreme court judges—Mathias McGirk, , and John C. Edwards—“seemed to be friendly” to Kimball and Turley but ultimately would not accept the petitions “in conseqence of a lack of the order of Commitment.” Kimball and Turley subsequently met with King, and Kimball later recalled that the judge “was mad at us, for presenting his illegal papers to the Supreme Judges: he treated us very roughly.” Based on this meeting, however, King apparently instructed Sheriff Hadley to give Kimball and Turley a copy of the mittimus. In early April, JS sent to Jefferson City, presumably with JS’s petition, the petitions of the other prisoners, and the copy of the mittimus. “I saw the Judges,” Snow noted, “but they would do nothing about it.” Snow did not give the judges’ reasons for rejecting the petitions. Although the March petitions for writs of habeas corpus were not granted, JS and the other prisoners remained in the only a few more weeks. On 6 April 1839, they were moved to , Missouri, to appear before the Circuit Court.
Footnotes
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1
“Habeas Corpus,” in Bouvier, Law Dictionary, 1:454–456; Walker, “Habeas Corpus in Early Nineteenth-Century Mormonism,” 5–8.
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.
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3
Hyrum Smith, Petition, Liberty, MO, 9 Mar. 1839, CHL.
Smith, Hyrum. Petition, Liberty, MO, 9 Mar. 1839. CHL.
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4
Hyrum Smith, Petition, Liberty, MO, 15 Mar. 1839, CHL; Lyman Wight, Petition, Liberty, MO, 15 Mar. 1839, CHL; Caleb Baldwin, Petition, Liberty, MO, 15 Mar. 1839, CHL; Alexander McRae, Petition, Liberty, MO, 15 Mar. 1839, CHL.
Smith, Hyrum. Petition, Liberty, MO, 15 Mar. 1839. CHL.
Wight, Lyman. Petition, Liberty, MO, 15 Mar. 1839. CHL. MS 24547.
Baldwin, Caleb. Petition, Liberty, MO, 15 Mar. 1839. CHL.
McRae, Alexander. Petition, Liberty, MO, 15 Mar. 1839. CHL.
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5
Hyrum Smith, Petition, Liberty, MO, 9 Mar. 1839, CHL.
Smith, Hyrum. Petition, Liberty, MO, 9 Mar. 1839. CHL.
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6
As Ripley later recalled, he and Kimball were “appointed by the church to visit the Brethren as often as possible who were in jail at liberty and also to importune at the feet of the judges” for the release of the prisoners. (Alanson Ripley, Statements, ca. Jan. 1845, Historian’s Office, JS History Documents, 1839–1860, CHL; see also Heber C. Kimball, Far West, MO, to Vilate Murray Kimball, Quincy, IL, 2 Apr. 1839, Heber C. Kimball, Collection, CHL.)
Historian’s Office. Joseph Smith History Documents, 1839–1860. CHL. CR 100 396.
Kimball, Heber C. Collection, 1837–1898. CHL. MS 12476.
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7
In his diary, Hyrum Smith named Ripley, Kimball, Huntington, Noble, and Presendia Huntington Buell as the only visitors to the jail on 15 March 1839. (Hyrum Smith, Diary, 15 Mar. 1839.)
Smith, Hyrum. Diary, Mar.–Apr. 1839, Oct. 1840. CHL. MS 2945.
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8
Letter to the Church and Edward Partridge, 20 Mar. 1839. Hyrum Smith made notes on the habeas corpus statute in the back of his diary. (Hyrum Smith, Diary, CHL.)
Smith, Hyrum. Diary, Mar.–Apr. 1839, Oct. 1840. CHL. MS 2945.
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9
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. 1–3; see also Madsen, “Joseph Smith and the Missouri Court of Inquiry,” 102–115.
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.
Madsen, Gordon A. “Joseph Smith and the Missouri Court of Inquiry: Austin A. King’s Quest for Hostages.” BYU Studies 43, no. 4 (2004): 93–136.
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10
Missouri law required petitions to “be verified by the oath of the applicant, or some other competent person,” such as a justice of the peace. (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. 4.)
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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11
William T. Wood, an attorney living in Clay County, recalled that the prisoners were occasionally permitted to leave the jail under supervision of a guard. However, as JS noted in his 15 March 1839 letter to Presendia Huntington Buell, the Clay County jailer was especially vigilant following the prisoners’ escape attempt in early March. (William T. Wood, “Mormon Memoirs,” Liberty [MO] Tribune, 9 Apr. 1886, [1]; Letter to Presendia Huntington Buell, 15 Mar. 1839.)
Liberty Tribune. Liberty, MO. 1860–.
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12
Far West Committee, Minutes, 17–18 Mar. 1839.
Far West Committee. Minutes, Jan.–Apr. 1839. CHL. MS 2564.
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13
Theodore Turley, Memoranda, ca. Feb. 1845, Historian’s Office, JS History Documents, 1839–1860, CHL; 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. 5.
Historian’s Office. Joseph Smith History Documents, 1839–1860. CHL. CR 100 396.
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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14
Hyrum Smith, Diary, 30 Mar. 1839; see also Theodore Turley, Memoranda, ca. Feb. 1845, Historian’s Office, JS History Documents, 1839–1860, CHL; and Heber C. Kimball, Far West, MO, to Vilate Murray Kimball, Quincy, IL, 2 Apr. 1839, Heber C. Kimball, Collection, CHL. Tompkins (1780–1846) served on the Missouri Supreme Court from 1824 until 1845; McGirk (ca. 1783–1842), from 1821 to 1841; and Edwards (1804–1888), from 1837 to 1839. (Bay, Reminiscences of the Bench and Bar of Missouri, 30–31, 536–537; Ellsberry, Cemetery Records of Montgomery County, Missouri, 1:41; Biographical Directory of the United States Congress, 1774–2005, 1005.)
Smith, Hyrum. Diary, Mar.–Apr. 1839, Oct. 1840. CHL. MS 2945.
Historian’s Office. Joseph Smith History Documents, 1839–1860. CHL. CR 100 396.
Kimball, Heber C. Collection, 1837–1898. CHL. MS 12476.
Bay, W. V. N. Reminiscences of the Bench and Bar of Missouri. . . . St. Louis: F. H. Thomas, 1878.
Ellsberry, Elizabeth Prather, comp. Cemetery Records of Montgomery County, Missouri. 2 vols. Chillicothe, MO: By the author, no date.
Biographical Directory of the United States Congress, 1774–2005, the Continental Congress, September 5, 1774, to October 21, 1788, and the Congress of the United States, from the First through the One Hundred Eighth Congresses, March 4, 1789, to January 3, 2005, inclusive. Edited by Andrew R. Dodge and Betty K. Koed. Washington DC: U.S. Government Printing Office, 2005.
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15
Kimball, “History,” 99.
Kimball, Heber C. “History of Heber Chase Kimball by His Own Dictation,” ca. 1842–1856. Heber C. Kimball, Papers, 1837–1866. CHL. MS 627, box 2.
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16
See Mittimus, Richmond, MO, 29 Nov. 1838, State of Missouri v. JS et al. for Treason and Other Crimes (Mo. 5th Jud. Cir. 1838), JS Collection, CHL.
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17
Snow, Journal, 1838–1841, 47–48. According to Missouri law, courts could not grant writs of habeas corpus for nonbailable offenses, such as treason. (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. 6.)
Snow, Erastus. Journals, 1835–1851; 1856–1857. CHL. MS 1329, box 1, fds. 1–3.
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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18
Hyrum Smith, Diary, 6 Apr. 1839.
Smith, Hyrum. Diary, Mar.–Apr. 1839, Oct. 1840. CHL. MS 2945.
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Cite this page
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Document Information
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Footnotes
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Alexander McRae handwriting begins.
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Cancellation and insertion in the handwriting of Elias Smith.
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Cancellation and insertion in the handwriting of Elias Smith.
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1
For more information on Hinkle and the role of his delegation in JS’s arrest, see Introduction to Part 3: 4 Nov. 1838–16 Apr. 1839.
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Insertion in the handwriting of JS.
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2
An ex parte examination is one-sided, with evidence presented on behalf of only one party. Of the hearing, Latter-day Saint Morris Phelps recounted, “I was soon called on [to be] a witness on the part of the mob. In giving in my testimony I was sworn in I was first stop[p]ed by the prosecuting At[t]orney then by the Judge saying to me we do not want to here [hear] any testimony on that side of the question (meaning in favor of Joseph & Hyrum Smith and others of the prisenors).” (“Ex parte,” in Bouvier, Law Dictionary, 1:384; Phelps, Reminiscences, 1.)
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.
Phelps, Morris. Reminiscences, no date. CHL. MS 271.
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