Introduction to State of Illinois v. JS and H. Smith for Treason

Document Transcript

State of Illinois v. JS and H. Smith for Treason
Hancock Co., Illinois, Justice of the Peace Court, 27 June 1844
 
Historical Introduction
On 24 June 1844, Robert Smith, a in , Illinois, issued a warrant for the arrest of JS on a charge of against the state of . Justice Smith’s warrant was based on the complaint of , a resident of , Hancock County, who claimed that the treason occurred “on or about the nineteenth day of June.” The complaint is apparently not extant, and the warrant itself provides no additional details regarding the alleged treason. However, historical sources suggest that the charge stemmed from JS’s decision to call out the on 17 June and to declare martial law within the city’s boundaries the following day.
Tensions in had been rising for some time. The situation became volatile after 10 June 1844, when the City Council declared the Nauvoo Expositor a public nuisance and a posse destroyed the press in compliance with an order issued by JS as mayor of Nauvoo. The following day, Hancock County justice of the peace , in , Illinois, issued a warrant for JS and seventeen other men charging them with for their roles in demolishing the press. Although JS and the others were willing to answer the charge, they feared that their lives would be in danger in Carthage and therefore attempted to address the allegations in Nauvoo courts rather than before Morrison, resulting in proceedings before the Nauvoo Municipal Court on and a hearing before Nauvoo city alderman and justice of the peace . The church’s antagonists viewed these proceedings, especially those before the municipal court, as illegitimate and therefore called for volunteers to assemble on 19 June, when Hancock County constable —the officer tasked with serving Morrison’s warrant—was expected to organize them as a to assist him in arresting the prisoners and transporting them to Carthage. The antagonists also resolved that if Bettisworth was unable to detain JS and the other accused men, vigilantes would wage a “war of extermination” on Latter-day Saints in the county.
The church’s opponents also sent couriers to governor apprising him of the situation in and asking him to muster the state militia to maintain order. Under Illinois law, the governor, as commander in chief, possessed exclusive authority to call out the militia. However, local militia leaders—anticipating, correctly, that the governor would later at least tacitly approve their actions—began mustering troops on 17 June to support the posse comitatus.
JS wrote to twice during the week following the demolition of the Expositor, defending the city council, requesting the governor’s protection, and offering the services of the Nauvoo Legion, the city’s independent militia unit within the state organization, to help keep the peace. Under the act incorporating the city of , commonly known as the , both the mayor and the governor were authorized to utilize the Nauvoo Legion to enforce city ordinances and state statutes, as well as to maintain “the public defence.” JS had previously asserted to Ford that the mayor possessed the “power to call upon any portion of the Legion to resist” an “armed mob” that threatened to “slaughter the inhabitants of the city.” Hearing nothing from Ford by 17 June 1844, JS decided to call out the legion to protect Nauvoo.
On 18 June, JS took the additional step of proclaiming martial law within the city’s boundaries. There was no provision in American law, whether federal, state, or municipal, that defined martial law or authorized it to be imposed. In his order proclaiming martial law, JS stated that he had “good reason to fear that a mob is organizing to come upon this city and plunder and destroy said city as well as murder the citizens.” He ordered the legion and the city police to “strictly see that no persons or property pass in or out of the city without due orders.” The city was under martial law from 18 to 22 June, with city marshal directing its application. Forces under Greene’s leadership monitored travel in and out of the city, stopping individuals who were deemed suspicious and refusing at least one steamboat permission to dock on the city’s shoreline on the . At least five individuals who had drawn suspicion swore exculpatory affidavits—each of which followed a prepared form—before Nauvoo city alderman . These affiants attested that they held no sympathies for the mob and promised that they would provide no information regarding the city’s defensive arrangements to the vigilantes. received reports that seven additional individuals had been “detained against their will” under martial law.
arrived in on 21 June 1844 and assessed the situation. Finding “an armed force assembled, and hourly increasing”—comprising both volunteers who gathered to join the posse comitatus and militiamen who mustered “for a similar purpose”—Ford moved “to place all the militia then assembled or which were expected to assemble, under military command of their proper officers.” The governor thereby tacitly approved the earlier mustering of militia forces, apparently with no repercussions for the officers who called out their men prior to receiving authorization from the commander in chief. In contrast, on 22 June, Ford ordered JS and the other defendants to submit to arrest and examination on the riot charge in Carthage. Ford also referenced JS’s declaration of martial law, hinting that the detentions made under the order “may become matters of great importance.” After receiving Ford’s letter, JS dismissed the legion and, presumably, rescinded the martial law order.
Around 23 June 1844, and fellow resident appeared in before Robert Smith and filed two complaints. Spencer’s complaint alleged that JS had committed treason against the state of on or about 19 June 1844 in , while Norton’s complaint alleged that committed the same crime. Both Spencer and Norton had become embroiled in several controversies with JS and other Nauvoo city and church officials during previous months, and the two men were known associates of the proprietors of the Nauvoo Expositor. Neither complaint appears to be extant, so specific details regarding the allegations remain unknown. Robert Smith’s docket book is apparently not extant, and he left no account of his decision to issue warrants for JS and Hyrum Smith. Illinois law defined treason as “levying war against the government and people of this state” or “giving . . . aid, advice, and comfort” to the state’s enemies. The law indicated that treason consisted of committing an “open deed”—that is, an actual act of war and not simply words—that was established by the testimonies of two or more witnesses or the defendant’s confession. The 19 June date referenced in the warrant may have referred to the date that was expected to convene the posse comitatus to arrest JS. For his part, JS understood the treason charge against him as stemming from the order to call out the legion. later noted that the “overt act of treason charged against them consisted in the alleged levying of war against the State by declaring martial law in Nauvoo, and in ordering out the legion to resist the posse comitatus” that was formed to assist Bettisworth in making the arrest. Although Ford’s assessment of the legal foundation of the treason charge could be applied to JS—as both mayor and lieutenant general of the legion, and as the originator of both the declaration of martial law and the order to muster troops—Hyrum Smith was not an officer in the legion. Without additional evidence, it remains unknown why he was charged with treason.
Based on the complaints from and , Robert Smith issued warrants for JS and on 24 June 1844. In the interim, the Smith brothers had decided to answer the riot charge in . Accompanied by other Latter-day Saints, they arrived in Carthage late that night. The following morning, arrested the men named in the riot warrant issued on 11 June by . Bettisworth then served the treason warrants on JS and Hyrum Smith. During the late afternoon of 25 June, Justice Smith, rather than Morrison, presided at a preliminary examination of JS and the other men charged with riot. The defendants voluntarily entered into $500 recognizances binding them to appear at the next session of the Circuit Court for trial. Although most of the defendants in the riot case left that evening for , JS and Hyrum Smith remained in custody on the treason charge.
Around eight o’clock at night on 25 June, presented the Smith brothers with a , or an order from Justice Smith that committed them to jail. Although the prisoners protested to that Justice Smith could not send them to jail because he had not held a legally required examination on the treason charge, the governor declined to interfere with judicial process and the defendants were placed in the jail for the night. In a letter JS wrote that day to his wife , he informed her of the treason charge, then added that “when the truth comes out we have nothing to fear. We all feel calm & composed.”
The prisoners spent the night and much of 26 June in the jail. Just after three thirty in the afternoon, , accompanied by a guard, retrieved the prisoners and brought them before Justice Smith for an examination on the treason charge. The State of was represented by , editor of the Warsaw Signal and a leading antagonist of JS; , the justice of the peace who issued the warrant on 11 June against JS and seventeen others for allegedly committing riot in the destruction of the Expositor; , a local attorney; and and , two of the proprietors of the Expositor. JS and were represented by and , attorneys from who had represented them in the riot proceedings on 25 June. JS’s scribe came prepared with a list of twenty-seven potential defense witnesses, and Justice Smith issued subpoenas, presumably based on the list. Smith adjourned the proceedings, saying the defense could have until noon on 27 June to assemble their witnesses. At five thirty on 26 June, JS and Hyrum Smith were returned to the jail. That evening, Justice Smith rescheduled the hearing to 29 June. Shortly after five o’clock in the evening on 27 June, a mob stormed the jail and murdered JS and his brother, ending the state’s prosecution.
 
Calendar of Documents
This calendar lists all known documents created by or for the court, whether extant or not. It does not include versions of documents created for other purposes, though those versions may be listed in footnotes. In certain cases, especially in cases concerning unpaid debts, the originating document (promissory note, invoice, etc.) is listed here. Note that documents in the calendar are grouped with their originating court. Where a version of a document was subsequently filed with another court, that version is listed under both courts.

Footnotes

  1. 1

    Warrant, 24 June 1844–A [State of Illinois v. JS and H. Smith for Treason]; Willard Richards, Journal Excerpt, 23–27 June 1844; Letter to Emma Smith, 25 June 1844; Military Order to Jonathan Dunham, 17 June 1844–A; Proclamation, 18 June 1844.  

  2. 2

    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.  

  3. 3

    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.  

  4. 4

    Warsaw (IL) Signal, 19 June 1844, [1]; S. Otho Williams, Carthage, IL, to John A. Prickett, Alton, IL, 10 July 1844, in Chicago Historical Society, Collection of Manuscripts about Mormons, CHL.  

    Warsaw Signal. Warsaw, IL. 1841–1853.

    Chicago Historical Society, Collection of Manuscripts about Mormons, 1832–1954. Microfilm. CHL. MS 8136.

  5. 5

    Warsaw (IL) Signal, 19 June 1844, [1]–[2].  

    Warsaw Signal. Warsaw, IL. 1841–1853.

  6. 6

    Illinois Constitution of 1818, art. 3, sec. 10; An Act for the Organization and Government of the Militia of This State [2 Mar. 1833], Public and General Statute Laws of the State of Illinois, p. 483, sec. 43; see also “Illinois and Missouri,” Times and Seasons, 15 Aug. 1843, 4:292–294; and Letter from Thomas Ford, 12 Dec. 1843.  

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

    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.

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

  7. 7

    S. Otho Williams, Carthage, IL, to John A. Prickett, [Alton, IL], 10 July 1844, 2; Lima Guards Roll, [1844]; Farmers’ Guards Company Return, 21 Nov. 1844; Camp Creek Company Return, 21 Nov. 1844; Illinois Militia, 5th Division, 4th Brigade, 59th Regiment Muster Roll, 4 Dec. 1844, Collection of Manuscripts about Mormons, Abakanowicz Research Center, Chicago History Museum, Chicago; Message of the Governor of the State of Illinois, 3.  

    Collection of Manuscripts about Mormons, 1832–1954. Abakanowicz Research Center, Chicago History Museum, Chicago. Microfilm copy in Chicago Historical Society, Collection of Manuscripts about Mormons, 1832–1954, CHL.

    Message of the Governor of the State of Illinois, in Relation to the Disturbances in Hancock County, December, 21, 1844. Springfield, IL: Walters and Weber, 1844.

  8. 8

    Letter to Thomas Ford, 14 June 1844; Letter to Thomas Ford, 16 June 1844.  

  9. 9

    Act to Incorporate the City of Nauvoo, 16 Dec. 1840.  

  10. 10

    Letter to Thomas Ford, 1 Jan. 1844.  

  11. 11

    Affidavit from Stephen Markham, 17 June 1844; JS, Journal, 17 June 1844; Mayor’s Order to John P. Greene, 17 June 1844; Military Order to Jonathan Dunham, 17 June 1844–A.  

  12. 12

    Proclamation, 18 June 1844.  

  13. 13

    William Blackstone, whose commentaries on English law were highly influential in the United States, explained that martial law had no place in “the permanent and perpetual laws” of England and that it was “built upon no settled principles” but was “entirely arbitrary in its decisions.” It was “in truth and reality no law, but something indulged rather than allowed as a law.” Blackstone contended that it could not be imposed in peacetime when the courts of law operated freely. Although JS cited Blackstone and other legal commentaries when performing his responsibilities as mayor and a justice of the peace, it is unknown whether he consulted such resources when preparing his declaration of martial law. (Friedman, History of American Law, xx, 71, 83; Blackstone, Commentaries, vol. 1, bk. 1, p. 413; Trial Report, 4–22 Mar. 1843 [Dana v. Brink]; Letter to Thomas Ford, 22–23 June 1844.)  

    Friedman, Lawrence M. A History of American Law. 4th ed. New York: Oxford University Press, 2019.

    Blackstone, William. Commentaries on the Laws of England: In Four Books; with an Analysis of the Work. By Sir William Blackstone, Knt. One of the Justices of the Court of Common Pleas. In Two Volumes, from the Eighteenth London Edition. . . . 2 vols. New York: W. E. Dean, 1840.

  14. 14

    Proclamation, 18 June 1844.  

  15. 15

    Letter to Thomas Ford, 22–23 June 1844.  

  16. 16

    “Latest News,” and “Postscript,” Warsaw (IL) Signal, 19 June 1844, [2].  

    Warsaw Signal. Warsaw, IL. 1841–1853.

  17. 17

    Affidavit from James Camron, 19 June 1844; Affidavit from William Loomis, 20 June 1844; Affidavit from Samuel Hicks, 21 June 1844; Affidavit from H. Rosenkrantz, 22 June 1844; Affidavit from Luther Taylor, 22 June 1844; Affidavit Form, ca. 22 June 1844.  

  18. 18

    Ford named John A. Hicks, Henry Norton, Andrew J. Higbee, John Eagle, P. J. Rolfe, Peter Lemon, and J. G. Rolph as the detainees. (Letter from Thomas Ford, 22 June 1844.)  

  19. 19

    Ford, Message of the Governor, 3.  

    Message of the Governor of the State of Illinois, in Relation to the Disturbances in Hancock County, December, 21, 1844. Springfield, IL: Walters and Weber, 1844.

  20. 20

    Letter from Thomas Ford, 22 June 1844.  

  21. 21

    JS, Journal, 22 June 1844. In a letter written to Ford during the night of 22–23 June 1844, JS defended his decision to call out the legion as a necessary measure to protect the city and argued that any detentions were made for breaches of the peace. He also assured the governor that the detained individuals had been released. (Letter to Thomas Ford, 22–23 June 1844.)  

  22. 22

    JS prosecuted Spencer in the Nauvoo mayor’s court on 26 April 1844 for attacking his brother Orson Spencer and for making derogatory comments about the church. When Augustine Spencer was detained, Chauncey L. Higbee, Robert D. Foster, and Charles A. Foster, all of whom later became proprietors of the Nauvoo Expositor, refused to assist in his arrest after being called upon by city officers to do so. Spencer’s subsequent activities in Nauvoo are unknown. Robert D. Foster referred to Norton as one of his “boys.” In mid-June 1844, Hancock County justice of the peace Aaron Johnson tried and acquitted Norton for allegedly trying to burn down the Expositor office at the behest of Foster. On 18 June, Norton reportedly threatened JS’s life. However, after an examination before an unidentified justice of the peace, he was discharged. Finally, Norton was detained under JS’s martial law order. Norton’s interactions with Hyrum Smith during this time are unknown. (Introduction to City of Nauvoo v. A. Spencer; “Prospectus of the Nauvoo Expositor,” Nauvoo Expositor, 7 June 1844, [4]; Letter, Robert D. Foster to John Proctor, 20 June 1844; Docket Entry, ca. 14 June 1844, State of Illinois v. Norton [J.P. Ct. 1844], Hancock Co., IL, Robinson and Johnson Docket Book, 256, in Chicago Historical Society, Collection of Manuscripts about Mormons, CHL; JS, Journal, 14 and 18 June 1844; Clayton, Journal, 27 June 1844; Letter from Thomas Ford, 22 June 1844; see also “For the Neighbor,” Nauvoo Neighbor, 16 [26] June 1844, [2].)  

    Chicago Historical Society, Collection of Manuscripts about Mormons, 1832–1954. Microfilm. CHL. MS 8136.

    Clayton, William. Journals, 1842–1845. CHL.

    Nauvoo Neighbor. Nauvoo, IL. 1843–1845.

  23. 23

    Justice Smith referenced the complaints in the warrants he issued for JS and Hyrum Smith. (Warrant, 24 June 1844–A [State of Illinois v. JS and H. Smith for Treason]; Warrant, 24 June 1844–B [State of Illinois v. JS and H. Smith for Treason].)  

  24. 24

    Warrant, 24 June 1844–A [State of Illinois v. JS and H. Smith for Treason]; Warrant, 24 June 1844–B [State of Illinois v. JS and H. Smith for Treason].  

  25. 25

    An Act relative to Criminal Jurisprudence [26 Feb. 1833], Public and General Statute Laws of the State of Illinois, p. 202, sec. 20.  

    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.

  26. 26

    Letter to Emma Smith, 25 June 1844.  

  27. 27

    Ford, who had previously served as a justice of the Illinois Supreme Court, noted in his 1854 History of Illinois that he viewed the question of JS’s guilt or innocence as hinging on the motives of the volunteers who assembled to join the posse comitatus. If they truly intended only to assist the civil authorities in bringing JS into custody, then JS’s actions might have proven treasonous. If the volunteers were instead vigilantes, intent on murdering JS—as, Ford conceded, actually happened—then JS’s actions would have probably not been deemed treasonable. (Ford, History of Illinois, 337, italics in original; see also Willard Richards, Journal Excerpt, 23–27 June 1844.)  

    Ford, Thomas. A History of Illinois, from Its Commencement as a State in 1818 to 1847. Containing a Full Account of the Black Hawk War, the Rise, Progress, and Fall of Mormonism, the Alton and Lovejoy Riots, and Other Important and Interesting Events. Chicago: S. C. Griggs; New York: Ivison and Phinney, 1854.

  28. 28

    Hyrum Smith was appointed chaplain of the legion in 1841. At some point, he received the honorary title of brevet major general, but this did not grant him command in the organization. (Militia Returns, Nauvoo Legion, 23 Mar. 1841, [2], Illinois Governor, Military Correspondence, microfilm, CHL; John C. Bennett, “Officers of the Nauvoo Legion,” [1], Nauvoo Legion Records, CHL; Nauvoo Legion Minute Book, 20 May 1843, 32.)  

    Illinois Governor. Military Correspondence, 1839–1844. Microfilm. CHL. MS 8716.

    Nauvoo Legion Records, 1841–1845. CHL. MS 3430.

    Nauvoo Legion Minute Book, 1843–1844. Nauvoo Legion, Records, 1841–1845. CHL. MS 3430, fd. 1.

  29. 29

    Warrant, 24 June 1844–A [State of Illinois v. JS and H. Smith for Treason]; Warrant, 24 June 1844–B [State of Illinois v. JS and H. Smith for Treason]; Willard Richards, Journal Excerpt, 23–27 June 1844.  

  30. 30

    Willard Richards, Journal Excerpt, 23–27 June 1844; Warrant, 11 June 1844 [State of Illinois v. JS et al. for Riot–A]; Hugh T. Reid, “Statement of Facts!,” Times and Seasons, 1 July 1844, 5:561–562; James W. Woods, Statement, Times and Seasons, 1 July 1844, 5:563.  

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

  31. 31

    Willard Richards, Journal Excerpt, 23–27 June 1844; 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.  

  32. 32

    Willard Richards, Journal Excerpt, 23–27 June 1844.  

  33. 33

    Willard Richards, Journal Excerpt, 23–27 June 1844; Mittimus, 25 June 1844 [State of Illinois v. JS and H. Smith for Treason]; Note from Thomas Ford, 26 June 1844; Hugh T. Reid, “Statement of Facts!,” Times and Seasons, 1 July 1844, 5:562.  

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

  34. 34

    Letter to Emma Smith, 25 June 1844.  

  35. 35

    Willard Richards, Journal Excerpt, 23–27 June 1844; Order, 26 June 1844 [State of Illinois v. JS and H. Smith for Treason].  

  36. 36

    Willard Richards, Journal Excerpt, 23–27 June 1844; Gregg, History of Hancock County, 302, 748–750; 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; Perrin, History of Cass County, 239; List of Witnesses, 26 June 1844 [State of Illinois v. JS and H. Smith for Treason]; Mittimus, 26 June 1844 [State of Illinois v. JS and H. Smith for Treason].  

    Gregg, Thomas. History of Hancock County, Illinois, Together with an Outline History of the State, and a Digest of State Laws. Chicago: Charles C. Chapman, 1880.

    Perrin, William Henry, ed. History of Cass County Illinois. Chicago: O. L. Baskin, 1882.

  37. 37

    See the editorial note following the entry for 27 June 1844 in Willard Richards, Journal Excerpt, 23–27 June 1844.