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Statement, 17 June 1844

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Statement, 17 June 1844

Source Note

JS, Statement, [, Hancock Co., IL, 17 June 1844]. Featured version published in Trial Report, 19–21 June 1844, State of IL v. JS et al. for Riot–B (Hancock Co., IL, Justice of the Peace Court), in “For the Neighbor,” Nauvoo Neighbor (Nauvoo, Hancock Co., IL), Extra, 21 June 1844, p. [1]. For more complete source information, see the source note for Notice, 26 Aug. 1843.

Historical Introduction

On 17 June 1844, JS made a statement regarding the legality of the destruction of the Nauvoo Expositor’s press during a preliminary hearing held before , Illinois, alderman and justice of the peace . Six days earlier , Illinois, justice of the peace issued a warrant for JS and seventeen other men charging them with for their roles in the destruction of the Expositor’s press. Following their arrests, the men appeared before the Nauvoo Municipal Court on on 12–13 June; the court discharged them.
Meanwhile, the church’s antagonists held public meetings in and , Illinois, to pass resolutions expressing outrage against city authorities for the destruction of the Expositor. , editor of the Warsaw Signal, argued at one Warsaw gathering that the suppression of the Expositor was just the latest manifestation of JS’s efforts to “repeatedly set all law at defiance.” Over the previous two years, Sharp continued, the Nauvoo City Council had abetted JS by passing “a series of ordinances, contrary to the spirit and intent” of the act incorporating the city of Nauvoo, or Nauvoo charter. Sharp complained that these ordinances allowed the Nauvoo Municipal Court to use habeas corpus to release JS from custody whenever state authorities attempted to detain him. On 13 June, Thomas Barnes, a Carthage physician who had accompanied constable to Nauvoo to serve the warrant, arrived at a Carthage meeting with news that the municipal court had discharged JS and his codefendants. The meeting participants then passed a resolution declaring that the action of the municipal court demonstrated “that the riot is still progressing” and that governor should be asked to intervene. The following day, JS’s antagonists called for volunteers to assemble on 19 June 1844 to effectuate his arrest.
Over the next few days, reports reached that armed men were threatening Latter-day Saints living in Nauvoo’s countryside and outlying settlements, with church leaders in those communities asking JS for guidance amid the escalating tensions. On 16 June 1844, Judge of 's fifth judicial circuit, which included , visited in an attempt to defuse the situation. noted in JS’s journal that Thomas counseled JS and his codefendants to “go before some Jusstice of the peace” for an examination, which “would allay all excitement or cut off all legal pretext for a mob.” Thomas promised that after they did so, he would order the church’s opponents to keep the peace. Although the judge evidently meant that JS should go before , the justice who had issued the original warrant, church members interpreted Thomas’s counsel to mean that the accused could appear before any justice of the peace who had jurisdiction over the alleged crime.
On 17 June 1844, , a city alderman and justice of the peace, agreed to hear the case. Although Wells was a member of the Nauvoo City Council, he was ill on 10 June and therefore was not present when the council passed the resolution declaring the Expositor a nuisance. In addition, Wells was not a member of the church, and the accused may have hoped that, outside of Nauvoo, he would be perceived as a neutral arbiter. Rather than interfere with another justice’s process, Wells opted to initiate new proceedings against the defendants. Latter-day Saint filed a complaint before Wells on 17 June alleging that “on or about the 10th day of June, 1844,” the accused men committed a riot in Nauvoo when they “forcibly” entered the Expositor printing office, seized “with force of arms a printing press, types and paper, together with other property” that belonged to the paper’s proprietors, and broke and burned “the same in the streets.” Based on the complaint, Wells issued a warrant for JS and sixteen other men who allegedly participated in the riot. The men named in Wells’s warrant were nearly identical to those named in ’s warrant. The list of names divided into two groups: One group comprised men who participated in the physical destruction of the press—the alleged riot itself. The other comprised six members of the city council, including JS, who passed the resolution declaring the press a nuisance and were apparently being implicitly accused of being accessories before the fact.
constable arrested the defendants and brought them before , apparently on his farm in eastern , during the early afternoon on 17 June. As a justice of the peace, Wells had authority to hold a preliminary examination to “inquire into the truth or probability of the charge.” After reviewing the evidence, the justice could either send the case to the circuit court or discharge the defendants. served as the prosecuting attorney, while Nauvoo city attorney represented the defendants. The prosecution called five witnesses, three of whom testified regarding the arrival of ’s posse at the Expositor office, the seizure of the press, and its destruction in the street. This testimony was intended to establish that the violent manner in which the press was destroyed constituted a under law.
The other two witnesses testified about the city council’s resolution regarding the Expositor in an attempt to demonstrate that JS and the other city council members named in the complaint were accessories to the riot. , the complainant, claimed that he was present when “the city council passed an order for the destruction of the press.” objected “to witness’ stating who voted for the passage of the bill” and argued that there could be no accessories to a riot. responded by citing the statute defining an accessory to a crime, and “decided there might be an accessary to any crime either before or after the fact.” Ware continued that he “knew some who voted for the order in the city council” but stopped short of providing names in his testimony. , the only city council member who voted against the resolution declaring the Expositor a nuisance, also testified, explaining that he was present when the council passed the resolution.
JS interrupted ’s testimony by objecting to the court hearing testimony regarding the city council’s actions. He argued in his statement, featured here, that legislators were protected from prosecution for things said during legislative meetings and moreover that officers who implemented legislative directives were performing their legal duties and therefore could not be guilty of riot. Furthermore, JS declared that , as a justice of the peace, lacked the authority to review the legality of the city council’s resolution. Rather, JS contended, only the Supreme Court could review the city council’s actions.
When JS concluded his statement, defended ’s effort to testify regarding the city council’s proceedings, arguing that “if the act was committed under an ordinance of the city they might show it in justification.” held that the defendants were being tried “in their individual capacities, and could not be recognized by the court in their official capacity.” Warrington responded by stating that “all he heard the prisoners say, was said as councillors” and concluded without saying more.
The defense then called six witnesses, including again, each of whom testified that the posse had destroyed the press in an orderly manner and that no property other than the press and its fixtures had been destroyed. In addition, read into evidence the resolution and the mayor’s orders. After the testimony closed, discharged the defendants.
probably made a record of the proceedings, including JS’s statement, in his docket book, which is apparently not extant. , likely working with Wells’s docket entry or other notes, noted in his personal journal on 19 June that he “wrote on doings of Cou[r]t D. H. Wells till 12 at night,” presumably referring to the 17 June hearing. The trial report was published in an extra issue of the Nauvoo Neighbor dated 21 June 1844. After it was printed, Wells signed a statement on 22 June certifying “that the above is a true statement of the proceedings of a Justices Court held by me on the 17th inst in the case of State of vs Joseph Smith & others and my decision thereon (a few trifling typographic errors excepted).” The certification was then attached to a copy of the extra using adhesive wafers and the paper was folded like a letter and docketed, likely with the intention of sending it to or another recipient.
JS presumably hoped that the published trial report would mollify the church’s opponents and convince observers such as that the accused had satisfied the requirements of the law. However, the Neighbor extra did not have the desired effect.

Footnotes

  1. See “Joseph Smith Documents from 16 May through 28 June 1844”; Historical Introduction to Petition to Nauvoo Municipal Court, 12 June 1844; and Historical Introduction to Docket Entry, ca. 13 June 1844. A copy of Morrison’s warrant is featured in the print volume as part of JS’s 12 June 1844 petition for habeas corpus.

  2. Warsaw (IL) Signal, Extra, 14 June 1844, [1]; Thomas Barnes, Ukiah, CA, to Miranda Haskett, 1 Nov. 1897, 8, photocopy, CHL.

    Warsaw Signal. Warsaw, IL. 1841–1853.

    Barnes, Thomas L. Letter, Ukiah, CA, to Miranda Haskett, 1 Nov. 1897. Photocopy. CHL.

  3. William Clayton, Daily Account of JS’s Activities, 14–22 June 1844; Letter from Isaac Morley, 16 June 1844; Letter from John Smith, 16 June 1844; see also Letter to Isaac Morley, 16 June 1844; and Letter to John Smith, 17 June 1844.

  4. JS, Journal, 16 June 1844. Later, on 20 June 1844, Thomas reportedly told Latter-day Saint Anson Call that JS had misunderstood his advice and wrote a note to JS counseling him “to suffer yourself to be taken by the officer holding the writ and go before the justice of the peace who issued the same and have an investigation of the matter.” Illinois law stated that the arresting officer should bring the detained individual “before the officer issuing said warrant, or in case of his absence, before any other judge or justice of the peace” of the county. (Call, Autobiography and Journal, 23–26; An Act to Regulate the Apprehension of Offenders, and for Other Purposes [6 Jan. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 238, sec. 3; see also Oaks, “Suppression of the Nauvoo Expositor,” 864n11.)

    Call, Anson. Autobiography and Journal, ca. 1857–1883. CHL. MS 313.

    The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

    Oaks, Dallin H. “The Suppression of the Nauvoo Expositor.” Utah Law Review 9 (Winter 1965): 862–903.

  5. JS, Journal, 17 June 1844. Wells was elected to his second two-year term as an alderman on 6 February 1843. According to the city charter, aldermen “shall be conservators of the peace within the limits of said city, and shall have all the powers of Justices of the Peace therein, both in civil and criminal cases arising under the laws of the State.” (“City Election,” Wasp, 8 Feb. 1843, [2]; Act to Incorporate the City of Nauvoo, 16 Dec. 1840; “Municipal Election,” Times and Seasons, 1 Feb. 1841, 2:309; “The Attendance of the City Council of the City of Nauvoo— Commencing February 10th 1844,” Nauvoo, IL, Records, CHL.)

    The Wasp. Nauvoo, IL. Apr. 1842–Apr. 1843.

    Times and Seasons. Commerce/Nauvoo, IL. Nov. 1839–Feb. 1846.

    Nauvoo, IL. Records, 1841–1845. CHL. MS 16800.

  6. “Record of the Names of the Members . . . in the Spring of the Year 1842,” [63]. Apparently, neither Ware’s complaint nor Wells’s warrant is extant, but both documents are referenced in Wells’s published trial report, which listed Samuel Bennett, Joseph W. Coolidge, Jonathan Dunham, John P. Greene, Jesse Harmon, Jonathan Holmes, Dimick B. Huntington, John Lytle, Stephen Markham, Stephen Perry, William W. Phelps, David Harvey Redfield, Levi Richards, Orrin Porter Rockwell, JS, Hyrum Smith, and John Taylor as defendants. The list in Wells’s warrant was identical to that included in Morrison’s 11 June 1844 warrant, except that it omitted William H. Edwards for unknown reasons. (“For the Neighbor,” Nauvoo Neighbor, Extra, 21 June 1844, [1]; Petition to Nauvoo Municipal Court, 12 June 1844; see also Historical Introduction to State of Illinois v. JS et al. for Riot–A, State of Illinois v. JS for Riot on Habeas Corpus, State of Illinois v. H. Smith et al. on Habeas Corpus, and State of Illinois v. JS et al. for Riot–B.)

    “A Record of the Names of the Members of the Church of Jesus Christ of Latterday Saints, as Taken by the Lesser Priesthood, in the Spring of the Year 1842, and Continued, to Be Added as the Members Arrive at the City of Nauvoo, Hancock County; Illinois. Also the Deaths of Members, and Their Children, and Names of Children under 8 Years of Age,” after 1844–after 1846. Far West and Nauvoo Elders’ Certificates, 1837–1838, 1840–1846, 1862. CHL.

  7. JS, Journal, 17 June 1844; William Clayton, Daily Account of JS’s Activities, 14–22 June 1844. According to an 1842 survey, Wells’s farm was located between Warrington’s Addition to Nauvoo and Herringshaw and Thompson’s First Addition to Nauvoo. (See map of the City of Nauvoo, 1842; and map of Nauvoo Plats, Blocks, and Lots, 27 June 1844.)

  8. An Act to Regulate the Apprehension of Offenders, and for Other Purposes [6 Jan. 1827], Public and General Statute Laws of the State of Illinois (1839), p. 238, sec. 3. If the justice decided to send the case to the circuit court, the defendants would be either released on bail or committed to jail until the court’s next session.

    The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

  9. “For the Neighbor,” Nauvoo Neighbor, Extra, 21 June 1844, [1]. Bonney was a merchant who had recently moved to Nauvoo and was one of three non–Latter-day Saint individuals who were admitted to the Council of Fifty. It is unknown why he was selected to act as the prosecutor in this case, as he is not known to have had legal training. Stiles was appointed Nauvoo city attorney in mid-April 1844 and had represented the defendants in the riot case in the habeas corpus proceedings before the Nauvoo Municipal Court. (Council of Fifty, “Record,” 4 Apr. 1844; Nauvoo City Council Minute Book, 13 Apr. 1844, 207; Historical Introduction to Petition to Nauvoo Municipal Court, 12 June 1844; Docket Entry, ca. 13 June 1844.)

  10. The published account of the trial identified these witnesses as “H. O. Norton,” presumably Henry Norton; “O. F. Moesseur,” presumably Frederick Moeser; and “P. T. Rolfe,” presumably Tallman Rolfe. Norton and Rolfe, both of whom were associated with the proprietors of the Expositor, testified that they were in the newspaper’s office when the posse arrived. Moeser, who owned a grocery store across the street from the Expositor office, testified that he observed the destruction from outside the office. (“For the Neighbor,” Nauvoo Neighbor, Extra, 21 June 1844, [1]; Willard Richards, Minutes concerning Threats, 11 June 1844, Historian’s Office, JS History Documents, ca. 1839–1860, CHL; map of Western Nauvoo, IL, 28 June 1844.)

    Historian’s Office. Joseph Smith History Documents, 1839–1860. CHL. CR 100 396.

  11. “For the Neighbor,” Nauvoo Neighbor, Extra, 21 June 1844, [1]. Illinois law defined an accessory as someone “who stands by and aids, abets, or assists; or who not being present aiding, abetting, or assisting, hath advised and encouraged the perpetration of the crime. He or she, who thus aids, abets, or assists, advises, or encourages, shall be deemed and considered as principal, and punished accordingly.” If convicted, an accessory would face the same punishment as a principal in the crime. (An Act Relative to Criminal Jurisprudence [26 Feb. 1833], Public and General Statute Laws of the State of Illinois [1839], p. 201, sec. 13.)

    The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

  12. “For the Neighbor,” Nauvoo Neighbor, Extra, 21 June 1844, [1]; “For the Neighbor,” Nauvoo Neighbor, Extra, 17 June 1844, [1].

  13. “For the Neighbor,” Nauvoo Neighbor, Extra, 21 June 1844, [1].

  14. Aside from Ware, the defense witnesses included John R. Wakefield and Edward Wingott, two visitors to Nauvoo who witnessed the destruction of the press. Three Latter-day Saints from Nauvoo or nearby also testified: Addison Everett, who witnessed the destruction of the press; Joel Miles, a Hancock County constable who witnessed the press’s destruction; and Joseph W. Coolidge, one of the defendants whom Wells discharged and then allowed to testify. (“For the Neighbor,” Nauvoo Neighbor, Extra, 21 June 1844, [1]; Historical Introduction to Letter to John R. Wakefield, 23 June 1844.)

  15. Richards, Journal, 19 June 1844.

    Richards, Willard. Journals, 1836–1853. Willard Richards, Papers, 1821–1854. CHL. MS 1490, boxes 1–2.

  16. This copy is held at the CHL and is the copy used for transcription. (See Nauvoo Neighbor, Extra, 21 June 1844, CHL.)

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  17. JS History, vol. F-1, 164.

Asterisk (*) denotes a "featured" version, which includes an introduction and annotation.
*Statement, 17 June 1844
Trial Report, 19–21 June 1844 [ State of Illinois v. JS et al. for Riot–B ]

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Joseph Smith objected to calling in question the doings of the city council, and refered to the proceedings of Congress to show that all legislative bodies have a right to speak freely on any subject before them; and that Congress is not responsible for a which might arise on the execution of their order by the Marshal; that the execution of such order could not be a , but a legal transaction; that the doings of the city council could only be called in question by the powers above them; and that a magistrate had not that power; that the city council was not arrayed here for trial; but individuals were arraigned for a riot;— if the city council had transcended their powers they were amenable to the supreme court, and that had decided that an action could not lie, if no riot had been committed. [p. [1]]
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Footnotes

  1. The United States Constitution provided that members of Congress “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” The Illinois Constitution of 1818 provided similar protections for state legislators. (U.S. Constitution, art. 1, sec. 6; Illinois Constitution of 1818, art. 2, sec. 12.)

    Illinois Office of Secretary of State. First Constitution of Illinois, 1818. Illinois State Archives, Springfield.

  2. Under Illinois law, performing a lawful act, such as executing an order, could be deemed a riot if it was committed “in a violent and tumultuous manner.” However, the official who issued the order would not be held responsible for its manner of execution. (An Act Relative to Criminal Jurisprudence [26 Feb. 1833], Public and General Statute Laws of the State of Illinois [1839], p. 220, sec. 117.)

    The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

  3. According to an influential nineteenth-century legal dictionary, the term arraignment “signifies the calling of the defendant to the bar of the court, to answer the accusation contained in the indictment.” It would have been therefore premature for JS to use the term arraigned in a technical sense at a preliminary examination, which occurred prior to the convening of a grand jury at the next session of the circuit court to consider an indictment. As Wells’s docket entry for this examination is apparently not extant, it is unknown whether JS used the term in his statement or if the term was ascribed to him during the process of revision that led to the Nauvoo Neighbor extra. It is also possible that JS used the term in its nontechnical sense of “accused” or “called in question.” (“Arraignment,” in Bouvier, Law Dictionary, 1:126–127; “Arraigned,” in American Dictionary [1841], 1:102.)

    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: Deacon and Peterson, 1854.

    An American Dictionary of the English Language: Intended to Exhibit, I. the Origin, Affinities and Primary Signification of English Words, as far as They Have Been Ascertained. . . . Edited by Noah Webster. New York: S. Converse, 1828.

  4. JS apparently believed that just as the United States Supreme Court could determine the constitutionality of federal laws, the Illinois Supreme Court would determine whether the state-chartered Nauvoo City Council had exceeded its authority. Wells, as a justice of the peace, was authorized only to determine whether there was sufficient evidence to send the case to the circuit court for trial. (Nelson, Origins and Legacy of Judicial Review, 1–5; An Act to Regulate the Apprehension of Offenders, and for Other Purposes [6 Jan. 1827], Public and General Statute Laws of the State of Illinois [1839], p. 238, sec. 3; see also Letter to Thomas Ford, 22–23 June 1844.)

    Nelson, William E. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence: University Press of Kansas, 2000.

    The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.

  5. No other extant source describes such a comment from Thomas. JS’s statement suggests Thomas told him that if he could show that no riot had been committed, whether by establishing that the city council’s resolution was legal or that the marshal had not executed JS’s orders “in a violent and tumultuous manner,” then the charge could not be sustained. (An Act Relative to Criminal Jurisprudence [26 Feb. 1833], Public and General Statute Laws of the State of Illinois [1839], p. 220, sec. 117.)

    The Public and General Statute Laws of the State of Illinois: Containing All the Laws . . . Passed by the Ninth General Assembly, at Their First Session, Commencing December 1, 1834, and Ending February 13, 1835; and at Their Second Session, Commencing December 7, 1835, and Ending January 18, 1836; and Those Passed by the Tenth General Assembly, at Their Session Commencing December 5, 1836, and Ending March 6, 1837; and at Their Special Session, Commencing July 10, and Ending July 22, 1837. . . . Compiled by Jonathan Young Scammon. Chicago: Stephen F. Gale, 1839.